In terms of Section 148 C.P.C. court has the discretion
to extend the time. The words “not exceeding thirty days in total”
have been inserted by the C.P.C. (Amendment) Act, 1999.
Observing that if the act could not be performed within thirty days
for the reasons beyond the control of the parties, the time beyond
maximum thirty days can be extended under Section 151 C.P.C.,
in Salem Advocates Bar Association, T.N. vs. Union of India
(2005) 6 SCC 344, this Court in para (41) held as under:
“41. The amendment made in Section 148 affects the power of the
court to enlarge time that may have been fixed or granted by the
court for the doing of any act prescribed or allowed by the Code. The
amendment provides that the period shall not exceed 30 days in
total. Before amendment, there was no such restriction of time.
Whether the court has no inherent power to extend the time beyond
30 days is the question. We have no doubt that the upper limit fixed
in Section 148 cannot take away the inherent power of the court to
pass orders as may be necessary for the ends of justice or to prevent
abuse of process of the court. The rigid operation of the section
would lead to absurdity. Section 151 has, therefore, to be allowed to
operate fully. Extension beyond maximum of 30 days, thus, can be
permitted if the act could not be performed within 30 days for
reasons beyond the control of the party. We are not dealing with a
case where time for doing an act has been prescribed under the
provisions of the Limitation Act which cannot be extended either
under Section 148 or Section 151. We are dealing with a case where
the time is fixed or granted by the court for performance of an act
prescribed or allowed by the court.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1856 OF 2016
NASHIK MUNICIPAL CORPORATION Vs M/S. R.M. BHANDARI & ANR.
Citation;AIR 2016 SC 1090,(2016) 6 SCC245,2016(6) MHLJ 813
2. The present appeal impugns the order of High Court of
Judicature at Bombay dismissing Civil Application No.2305 of 2010
in Writ Petition No.1077 of 2010, filed by the appellant declining to
extend the time in depositing the cost of Rs.25,000/- in terms of
the order dated 03.05.2010 passed by the High Court in the said
Writ Petition No.1077 of 2010.
3. There has been a chequered history of litigation between
the parties for about two decades leading to filing of the present
appeal. The appellant being a municipal corporation had invited
public tender for construction and concreting of the area from
Gadage Maharaj Bridge to Rokadoba Sandwa, to which the
respondents emerged as successful bidders. The respondents were
to commence the work on 23.01.1990 and the same was to be
completed on or before 22.10.1990. However, the respondents did
not show any progress in the work and consequently the appellantcorporation
withdrew the work from the respondents and allotted
the same to M/s. N.H. Company Pvt. Ltd. for the purpose of getting
the work completed, for which the appellant suffered an excess
amount of Rs.29,76,740/-.
4. The appellant-corporation filed a suit being Special Civil
Suit No.339 of 1991 against the respondents seeking recovery of
the said amount before the Civil Judge (Senior Division), Nashik.
The respondents also preferred Special Civil Suit No.171 of 1991
against the appellant for a declaration and recovery of amount
before the Civil Judge (Senior Division), Nashik. The court
disposed of both the suits vide common judgment dated
18.10.1994 thereby decreeing the suit of the appellant and
dismissed the suit filed by the respondents. The court directed the
respondents to pay an amount of Rs.29,40,366/- to the appellant
alongwith interest at the rate of 18% per annum. Being aggrieved,
the respondents filed the appeal being First Appeal No.344 of 1995
challenging the decree dated 18.10.1994 before the High Court of
Bombay. Alongwith the appeal, the respondents also filed Civil
Application No.2330 of 1995 for stay of the decree. Vide order
dated 12.06.1995, the High Court granted stay of the decree on
condition that the respondents will deposit the entire decretal
amount before the lower court within eight weeks failing which the
stay shall stand vacated automatically. The respondents did not
deposit the decretal amount. Thereafter, the said First Appeal
No.344 of 1995 was dismissed as withdrawn vide order dated
13.01.2009.
5. The appellant had preferred an execution petition in
Special Darkhast No.49 of 2002 for execution of the decree dated
18.10.1994. The said execution petition was dismissed for default
of the decree holder vide order dated 29.07.2006. The appellant
then preferred C.M.A. No.155 of 2006 on 28.08.2006 seeking
restoration of the execution petition. Relying upon the judgment in
Mhatarba Laxman Dongare (Dead) thr. L.Rs vs. Central Bank of
India and Ors., reported in 2005 (2) ALL. M.R. 742, the executing
court vide order dated 29.10.2007 declined to restore the execution
3Page 4
petition-Special Darkhast No.49 of 2002. The appellant then
preferred the second execution petition being Special Darkhast
No.40 of 2008 and the same was dismissed as being barred by
limitation.
6. The appellant challenged the said order of the executing
court in Writ Petition No.6622 of 2009. While the said writ petition
was pending, the appellant also filed another Writ Petition No.1077
of 2010 challenging the order dated 29.10.2007 passed by the
executing court rejecting the appellant’s application for restoration
of the earlier Special Darkhast No.49 of 2002. Both the writ
petitions were disposed of by the High Court by the common
judgment dated 03.05.2010 and the High Court allowed the writ
petition No.1077 of 2010 and the order dated 29.10.2007 passed
by the executing court was set aside and Special Darkhast No.49 of
2002 was restored. However, the High Court imposed the cost of
Rs.25,000/- upon the appellant as a condition precedent for
restoration of the execution petition. Challenging the said order
dated 03.05.2010, respondents preferred SLP (C) No.21975 of 2010
before this Court and the said SLP was dismissed as withdrawn
vide order dated 16.08.2010.
4Page 5
7. Pursuant to the order passed in W.P. No.1077/2010,
the appellant-corporation filed applications before the executing
court on 30.06.2010 requesting the court to accept the cost of
Rs.25,000/- and to restore Special Darkhast No.49 of 2002. Those
applications were rejected by the executing court interalia stating
that the time limit granted by the High Court was over on
28.06.2010 and that the court had no power to extend the time
granted by the High Court. In these circumstances, the appellant
preferred Civil Application No.2305 of 2010 in Writ Petition
No.1077 of 2010 under Section 148 C.P.C. seeking extension of
time for depositing the cost of Rs.25,000/- and the same was
dismissed by the impugned order.
8. Learned counsel for the appellant Mr. S.M. Jadhav
submitted that the High Court erred in not taking note of the
explanation given by the appellant for the delay in depositing the
cost and the High Court was not justified in dismissing the
application. It was contended that the High Court failed to
consider that the right of the appellant for invoking the jurisdiction
of the court under Section 148 C.P.C. is an independent right and
the same cannot be curtailed in view of the order passed by this
Court in SLP (C) No.21975 of 2010. It was further submitted that
5Page 6
the High Court failed to consider that withdrawal of the first appeal
by the respondent before the High Court was at their own risk and
the appellant’s right to restore the execution petition cannot be
curtailed on that basis.
9. Per contra, learned counsel for the respondents
Mr. Aniruddha P. Mayee submitted that the appellant offered a
vague explanation for the delay in depositing the cost and the
appellant cannot take advantage of its own wrong. It was further
contended that since the execution petition was dismissed, the
respondents have withdrawn the first appeal and by restoration of
the execution petition at this distant point of time the respondents
cannot be rendered remediless and the learned counsel prayed for
liberty to restore the first appeal.
10. Upon consideration of the rival contentions, the point
falling for consideration is whether or not the court has the
discretion to enlarge the time for doing any act prescribed by the
Code or allowed by the Code.
11. Section 148 C.P.C. provides for enlargement of the time
by the court. Section 148 C.P.C. reads as under:
S.148. Enlargement of time.- Where any period is fixed or
granted by the Court for the doing of any act prescribed or allowed
by this Code, the Court may, in its discretion, from time to time,
enlarge such period not exceeding thirty days in total, even though
the period originally fixed or granted may have expired.
6Page 7
A plain reading of the above would show that when any period or
time is granted by the court for doing any act, the court has the
discretion from time to time to enlarge such period even if the time
originally fixed or granted by the court has expired. Previously
discretion was given to the court to enlarge the period fixed or
granted by the court for any act prescribed or allowed by the Code.
The C.P.C. (Amendment) Act, 1999 puts a limit of thirty days on the
enlargement of such period. The words “not exceeding thirty days
in total” have been inserted with a view to curtail procedural delay
caused by any party to the suit or proceeding. Enlargement of
time, whether one-time or phased, cannot exceed thirty days.
12. Considering the reason for the delay in depositing the
cost, as noticed earlier, the High Court allowed the Writ Petition
No.1077 of 2010 vide order dated 03.05.2010 and restored the
Special Darkhast No.49 of 2002 subject to the payment of cost of
Rs. 25,000/- to the respondents within a period of eight weeks
from the date of the order. The appellant stated that the copy of
the order dated 03.05.2010 was received in the office of its Legal
Department on 12.05.2010 and the Accounts Department gave its
approval for the payment of cost on 26.05.2010. The Legal
Department thereafter prepared voucher/bill for the amount of
7Page 8
Rs.25,000/- for being paid in the name of Civil Judge (Senior
Division), Nashik and the same was approved on 03.06.2010 and
after completing the procedural formalities, the Accounts
Department issued the cheque on 15.06.2010. It is further averred
that the applications were presented before the executing court to
accept the cheque on 30.06.2010 and the said applications were
dismissed interalia holding that the time limit granted by the High
Court was over on 28.06.2010 and the executing court had no
power to extend the time granted by the High Court. The executing
court was correct in saying that it could not extend time for
depositing the cost as the same had been stipulated by the High
Court. The High Court has declined to extend the time mainly on
the ground that the SLP(C) No.21975 of 2010 filed by the
respondents was dismissed as withdrawn and that the respondents
have lost their right to challenge the order passed by the Court in
Writ Petition No.1077 of 2010. The High Court while declining to
enlarge the time to deposit the cost neither took into consideration
the sequence of dates and events stated by the appellantcorporation
nor the explanation offered by the appellantcorporation
for the delay in depositing the amount. This, in our
view, is not correct.
8Page 9
13. In Chinnamarkathian alias Muthu Gounder and Anr. v.
Ayyavoo alias Periana Gounder and Ors., (1982) 1 SCC 159, this
Court called in the principle of equity and held that the court has
the jurisdiction to examine alteration or modification which may
necessitate extension of time. In para (15), this Court held as
under:-
“….It is a well accepted principle statutorily recognised in Section
148 of the Code of Civil Procedure that where a period is fixed or
granted by the court for doing any act prescribed or allowed by the
Code, the court may in its discretion from time to time enlarge such
period even though the period originally fixed or granted may expire.
If a court in exercise of the jurisdiction can grant time to do a thing,
in the absence of a specific provision to the contrary curtailing,
denying or withholding such jurisdiction, the jurisdiction to grant
time would inhere in its ambit the jurisdiction to extend time
initially fixed by it. Passing a composite order would be acting in
disregard of the jurisdiction in that while granting time
simultaneously the court denies to itself the jurisdiction to extend
time. The principle of equity is that when some circumstances are to
be taken into account for fixing a length of time within which a
certain action is to be taken, the court retains to itself the
jurisdiction to re-examine the alteration or modification of
circumstances which may necessitate extension of time. If the court
by its own act denies itself the jurisdiction to do so, it would be
denying to itself the jurisdiction which in the absence of a negative
provision, it undoubtedly enjoys….”
14. Reference may also be made to the decisions of this
Court in Jogdhayan v. Babu Ram and Ors., (1983) 1 SCC 26, Johri
Singh v. Sukh Pal Singh and Ors., (1989) 4 SCC 403, Ganesh
Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, (1985) 3
SCC 53 and D.V. Paul v. Manisha Lalwani, (2010) 8 SCC 546.
9Page 10
15. In terms of Section 148 C.P.C. court has the discretion
to extend the time. The words “not exceeding thirty days in total”
have been inserted by the C.P.C. (Amendment) Act, 1999.
Observing that if the act could not be performed within thirty days
for the reasons beyond the control of the parties, the time beyond
maximum thirty days can be extended under Section 151 C.P.C.,
in Salem Advocates Bar Association, T.N. vs. Union of India
(2005) 6 SCC 344, this Court in para (41) held as under:
“41. The amendment made in Section 148 affects the power of the
court to enlarge time that may have been fixed or granted by the
court for the doing of any act prescribed or allowed by the Code. The
amendment provides that the period shall not exceed 30 days in
total. Before amendment, there was no such restriction of time.
Whether the court has no inherent power to extend the time beyond
30 days is the question. We have no doubt that the upper limit fixed
in Section 148 cannot take away the inherent power of the court to
pass orders as may be necessary for the ends of justice or to prevent
abuse of process of the court. The rigid operation of the section
would lead to absurdity. Section 151 has, therefore, to be allowed to
operate fully. Extension beyond maximum of 30 days, thus, can be
permitted if the act could not be performed within 30 days for
reasons beyond the control of the party. We are not dealing with a
case where time for doing an act has been prescribed under the
provisions of the Limitation Act which cannot be extended either
under Section 148 or Section 151. We are dealing with a case where
the time is fixed or granted by the court for performance of an act
prescribed or allowed by the court.”
16. Coming to the finding of the High Court that the
respondents have lost their right to challenge the order passed by
the High Court in Writ Petition No.1077 of 2010, it is true that SLP
(C) No.21975 of 2010 was dismissed by this Court on the ground
that cost was not deposited by the appellant-corporation. But that
was not of much significance. In the application before the High
Court, what was important was that whether the appellant has
made out a case for extension based on which time can be
extended. From the sequence of events, in our opinion, the
appellant-corporation has explained the reasons for the delay in
depositing the cost and the time ought to be extended to deposit
the cost.
17. We find substance in the submission of the respondents
that since the execution petition was dismissed, the respondents
have withdrawn the First Appeal No.344 of 1995 and the
respondents cannot be deprived of the opportunity of maintaining a
first appeal for challenging the decree passed against them. While
extension of time is granted to the appellant to deposit the cost, the
respondents cannot be rendered remediless and in our view, the
respondents are to be given liberty to have their first appeal
restored by making necessary application before the first appellate
court.
18. In the result, the impugned order is set aside and this
appeal is allowed. The appellant-corporation shall deposit the cost
of Rs.25,000/- as directed by the High Court in Writ Petition
No.1077 of 2010 within a period of four weeks from today and on
such deposit, Special Darkhast No.49 of 2002 shall stand restored
and the same shall be proceeded with in accordance with law. The
respondents are at liberty to have the first appeal filed by them
being Appeal No.344 of 1995 restored by making an application.
We make it clear that we have not expressed any opinion on the
merits of the matter. In the facts and circumstances of the case,
there is no order as to costs.
………………………….CJI
(T.S. THAKUR)
…………………………….J
(R. BANUMATHI)
New Delhi;
February 26, 2016
Print Page
to extend the time. The words “not exceeding thirty days in total”
have been inserted by the C.P.C. (Amendment) Act, 1999.
Observing that if the act could not be performed within thirty days
for the reasons beyond the control of the parties, the time beyond
maximum thirty days can be extended under Section 151 C.P.C.,
in Salem Advocates Bar Association, T.N. vs. Union of India
(2005) 6 SCC 344, this Court in para (41) held as under:
“41. The amendment made in Section 148 affects the power of the
court to enlarge time that may have been fixed or granted by the
court for the doing of any act prescribed or allowed by the Code. The
amendment provides that the period shall not exceed 30 days in
total. Before amendment, there was no such restriction of time.
Whether the court has no inherent power to extend the time beyond
30 days is the question. We have no doubt that the upper limit fixed
in Section 148 cannot take away the inherent power of the court to
pass orders as may be necessary for the ends of justice or to prevent
abuse of process of the court. The rigid operation of the section
would lead to absurdity. Section 151 has, therefore, to be allowed to
operate fully. Extension beyond maximum of 30 days, thus, can be
permitted if the act could not be performed within 30 days for
reasons beyond the control of the party. We are not dealing with a
case where time for doing an act has been prescribed under the
provisions of the Limitation Act which cannot be extended either
under Section 148 or Section 151. We are dealing with a case where
the time is fixed or granted by the court for performance of an act
prescribed or allowed by the court.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1856 OF 2016
NASHIK MUNICIPAL CORPORATION Vs M/S. R.M. BHANDARI & ANR.
Citation;AIR 2016 SC 1090,(2016) 6 SCC245,2016(6) MHLJ 813
2. The present appeal impugns the order of High Court of
Judicature at Bombay dismissing Civil Application No.2305 of 2010
in Writ Petition No.1077 of 2010, filed by the appellant declining to
extend the time in depositing the cost of Rs.25,000/- in terms of
the order dated 03.05.2010 passed by the High Court in the said
Writ Petition No.1077 of 2010.
3. There has been a chequered history of litigation between
the parties for about two decades leading to filing of the present
appeal. The appellant being a municipal corporation had invited
public tender for construction and concreting of the area from
Gadage Maharaj Bridge to Rokadoba Sandwa, to which the
respondents emerged as successful bidders. The respondents were
to commence the work on 23.01.1990 and the same was to be
completed on or before 22.10.1990. However, the respondents did
not show any progress in the work and consequently the appellantcorporation
withdrew the work from the respondents and allotted
the same to M/s. N.H. Company Pvt. Ltd. for the purpose of getting
the work completed, for which the appellant suffered an excess
amount of Rs.29,76,740/-.
4. The appellant-corporation filed a suit being Special Civil
Suit No.339 of 1991 against the respondents seeking recovery of
the said amount before the Civil Judge (Senior Division), Nashik.
The respondents also preferred Special Civil Suit No.171 of 1991
against the appellant for a declaration and recovery of amount
before the Civil Judge (Senior Division), Nashik. The court
disposed of both the suits vide common judgment dated
18.10.1994 thereby decreeing the suit of the appellant and
dismissed the suit filed by the respondents. The court directed the
respondents to pay an amount of Rs.29,40,366/- to the appellant
alongwith interest at the rate of 18% per annum. Being aggrieved,
the respondents filed the appeal being First Appeal No.344 of 1995
challenging the decree dated 18.10.1994 before the High Court of
Bombay. Alongwith the appeal, the respondents also filed Civil
Application No.2330 of 1995 for stay of the decree. Vide order
dated 12.06.1995, the High Court granted stay of the decree on
condition that the respondents will deposit the entire decretal
amount before the lower court within eight weeks failing which the
stay shall stand vacated automatically. The respondents did not
deposit the decretal amount. Thereafter, the said First Appeal
No.344 of 1995 was dismissed as withdrawn vide order dated
13.01.2009.
5. The appellant had preferred an execution petition in
Special Darkhast No.49 of 2002 for execution of the decree dated
18.10.1994. The said execution petition was dismissed for default
of the decree holder vide order dated 29.07.2006. The appellant
then preferred C.M.A. No.155 of 2006 on 28.08.2006 seeking
restoration of the execution petition. Relying upon the judgment in
Mhatarba Laxman Dongare (Dead) thr. L.Rs vs. Central Bank of
India and Ors., reported in 2005 (2) ALL. M.R. 742, the executing
court vide order dated 29.10.2007 declined to restore the execution
3Page 4
petition-Special Darkhast No.49 of 2002. The appellant then
preferred the second execution petition being Special Darkhast
No.40 of 2008 and the same was dismissed as being barred by
limitation.
6. The appellant challenged the said order of the executing
court in Writ Petition No.6622 of 2009. While the said writ petition
was pending, the appellant also filed another Writ Petition No.1077
of 2010 challenging the order dated 29.10.2007 passed by the
executing court rejecting the appellant’s application for restoration
of the earlier Special Darkhast No.49 of 2002. Both the writ
petitions were disposed of by the High Court by the common
judgment dated 03.05.2010 and the High Court allowed the writ
petition No.1077 of 2010 and the order dated 29.10.2007 passed
by the executing court was set aside and Special Darkhast No.49 of
2002 was restored. However, the High Court imposed the cost of
Rs.25,000/- upon the appellant as a condition precedent for
restoration of the execution petition. Challenging the said order
dated 03.05.2010, respondents preferred SLP (C) No.21975 of 2010
before this Court and the said SLP was dismissed as withdrawn
vide order dated 16.08.2010.
4Page 5
7. Pursuant to the order passed in W.P. No.1077/2010,
the appellant-corporation filed applications before the executing
court on 30.06.2010 requesting the court to accept the cost of
Rs.25,000/- and to restore Special Darkhast No.49 of 2002. Those
applications were rejected by the executing court interalia stating
that the time limit granted by the High Court was over on
28.06.2010 and that the court had no power to extend the time
granted by the High Court. In these circumstances, the appellant
preferred Civil Application No.2305 of 2010 in Writ Petition
No.1077 of 2010 under Section 148 C.P.C. seeking extension of
time for depositing the cost of Rs.25,000/- and the same was
dismissed by the impugned order.
8. Learned counsel for the appellant Mr. S.M. Jadhav
submitted that the High Court erred in not taking note of the
explanation given by the appellant for the delay in depositing the
cost and the High Court was not justified in dismissing the
application. It was contended that the High Court failed to
consider that the right of the appellant for invoking the jurisdiction
of the court under Section 148 C.P.C. is an independent right and
the same cannot be curtailed in view of the order passed by this
Court in SLP (C) No.21975 of 2010. It was further submitted that
5Page 6
the High Court failed to consider that withdrawal of the first appeal
by the respondent before the High Court was at their own risk and
the appellant’s right to restore the execution petition cannot be
curtailed on that basis.
9. Per contra, learned counsel for the respondents
Mr. Aniruddha P. Mayee submitted that the appellant offered a
vague explanation for the delay in depositing the cost and the
appellant cannot take advantage of its own wrong. It was further
contended that since the execution petition was dismissed, the
respondents have withdrawn the first appeal and by restoration of
the execution petition at this distant point of time the respondents
cannot be rendered remediless and the learned counsel prayed for
liberty to restore the first appeal.
10. Upon consideration of the rival contentions, the point
falling for consideration is whether or not the court has the
discretion to enlarge the time for doing any act prescribed by the
Code or allowed by the Code.
11. Section 148 C.P.C. provides for enlargement of the time
by the court. Section 148 C.P.C. reads as under:
S.148. Enlargement of time.- Where any period is fixed or
granted by the Court for the doing of any act prescribed or allowed
by this Code, the Court may, in its discretion, from time to time,
enlarge such period not exceeding thirty days in total, even though
the period originally fixed or granted may have expired.
6Page 7
A plain reading of the above would show that when any period or
time is granted by the court for doing any act, the court has the
discretion from time to time to enlarge such period even if the time
originally fixed or granted by the court has expired. Previously
discretion was given to the court to enlarge the period fixed or
granted by the court for any act prescribed or allowed by the Code.
The C.P.C. (Amendment) Act, 1999 puts a limit of thirty days on the
enlargement of such period. The words “not exceeding thirty days
in total” have been inserted with a view to curtail procedural delay
caused by any party to the suit or proceeding. Enlargement of
time, whether one-time or phased, cannot exceed thirty days.
12. Considering the reason for the delay in depositing the
cost, as noticed earlier, the High Court allowed the Writ Petition
No.1077 of 2010 vide order dated 03.05.2010 and restored the
Special Darkhast No.49 of 2002 subject to the payment of cost of
Rs. 25,000/- to the respondents within a period of eight weeks
from the date of the order. The appellant stated that the copy of
the order dated 03.05.2010 was received in the office of its Legal
Department on 12.05.2010 and the Accounts Department gave its
approval for the payment of cost on 26.05.2010. The Legal
Department thereafter prepared voucher/bill for the amount of
7Page 8
Rs.25,000/- for being paid in the name of Civil Judge (Senior
Division), Nashik and the same was approved on 03.06.2010 and
after completing the procedural formalities, the Accounts
Department issued the cheque on 15.06.2010. It is further averred
that the applications were presented before the executing court to
accept the cheque on 30.06.2010 and the said applications were
dismissed interalia holding that the time limit granted by the High
Court was over on 28.06.2010 and the executing court had no
power to extend the time granted by the High Court. The executing
court was correct in saying that it could not extend time for
depositing the cost as the same had been stipulated by the High
Court. The High Court has declined to extend the time mainly on
the ground that the SLP(C) No.21975 of 2010 filed by the
respondents was dismissed as withdrawn and that the respondents
have lost their right to challenge the order passed by the Court in
Writ Petition No.1077 of 2010. The High Court while declining to
enlarge the time to deposit the cost neither took into consideration
the sequence of dates and events stated by the appellantcorporation
nor the explanation offered by the appellantcorporation
for the delay in depositing the amount. This, in our
view, is not correct.
8Page 9
13. In Chinnamarkathian alias Muthu Gounder and Anr. v.
Ayyavoo alias Periana Gounder and Ors., (1982) 1 SCC 159, this
Court called in the principle of equity and held that the court has
the jurisdiction to examine alteration or modification which may
necessitate extension of time. In para (15), this Court held as
under:-
“….It is a well accepted principle statutorily recognised in Section
148 of the Code of Civil Procedure that where a period is fixed or
granted by the court for doing any act prescribed or allowed by the
Code, the court may in its discretion from time to time enlarge such
period even though the period originally fixed or granted may expire.
If a court in exercise of the jurisdiction can grant time to do a thing,
in the absence of a specific provision to the contrary curtailing,
denying or withholding such jurisdiction, the jurisdiction to grant
time would inhere in its ambit the jurisdiction to extend time
initially fixed by it. Passing a composite order would be acting in
disregard of the jurisdiction in that while granting time
simultaneously the court denies to itself the jurisdiction to extend
time. The principle of equity is that when some circumstances are to
be taken into account for fixing a length of time within which a
certain action is to be taken, the court retains to itself the
jurisdiction to re-examine the alteration or modification of
circumstances which may necessitate extension of time. If the court
by its own act denies itself the jurisdiction to do so, it would be
denying to itself the jurisdiction which in the absence of a negative
provision, it undoubtedly enjoys….”
14. Reference may also be made to the decisions of this
Court in Jogdhayan v. Babu Ram and Ors., (1983) 1 SCC 26, Johri
Singh v. Sukh Pal Singh and Ors., (1989) 4 SCC 403, Ganesh
Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, (1985) 3
SCC 53 and D.V. Paul v. Manisha Lalwani, (2010) 8 SCC 546.
9Page 10
15. In terms of Section 148 C.P.C. court has the discretion
to extend the time. The words “not exceeding thirty days in total”
have been inserted by the C.P.C. (Amendment) Act, 1999.
Observing that if the act could not be performed within thirty days
for the reasons beyond the control of the parties, the time beyond
maximum thirty days can be extended under Section 151 C.P.C.,
in Salem Advocates Bar Association, T.N. vs. Union of India
(2005) 6 SCC 344, this Court in para (41) held as under:
“41. The amendment made in Section 148 affects the power of the
court to enlarge time that may have been fixed or granted by the
court for the doing of any act prescribed or allowed by the Code. The
amendment provides that the period shall not exceed 30 days in
total. Before amendment, there was no such restriction of time.
Whether the court has no inherent power to extend the time beyond
30 days is the question. We have no doubt that the upper limit fixed
in Section 148 cannot take away the inherent power of the court to
pass orders as may be necessary for the ends of justice or to prevent
abuse of process of the court. The rigid operation of the section
would lead to absurdity. Section 151 has, therefore, to be allowed to
operate fully. Extension beyond maximum of 30 days, thus, can be
permitted if the act could not be performed within 30 days for
reasons beyond the control of the party. We are not dealing with a
case where time for doing an act has been prescribed under the
provisions of the Limitation Act which cannot be extended either
under Section 148 or Section 151. We are dealing with a case where
the time is fixed or granted by the court for performance of an act
prescribed or allowed by the court.”
16. Coming to the finding of the High Court that the
respondents have lost their right to challenge the order passed by
the High Court in Writ Petition No.1077 of 2010, it is true that SLP
(C) No.21975 of 2010 was dismissed by this Court on the ground
that cost was not deposited by the appellant-corporation. But that
was not of much significance. In the application before the High
Court, what was important was that whether the appellant has
made out a case for extension based on which time can be
extended. From the sequence of events, in our opinion, the
appellant-corporation has explained the reasons for the delay in
depositing the cost and the time ought to be extended to deposit
the cost.
17. We find substance in the submission of the respondents
that since the execution petition was dismissed, the respondents
have withdrawn the First Appeal No.344 of 1995 and the
respondents cannot be deprived of the opportunity of maintaining a
first appeal for challenging the decree passed against them. While
extension of time is granted to the appellant to deposit the cost, the
respondents cannot be rendered remediless and in our view, the
respondents are to be given liberty to have their first appeal
restored by making necessary application before the first appellate
court.
18. In the result, the impugned order is set aside and this
appeal is allowed. The appellant-corporation shall deposit the cost
of Rs.25,000/- as directed by the High Court in Writ Petition
No.1077 of 2010 within a period of four weeks from today and on
such deposit, Special Darkhast No.49 of 2002 shall stand restored
and the same shall be proceeded with in accordance with law. The
respondents are at liberty to have the first appeal filed by them
being Appeal No.344 of 1995 restored by making an application.
We make it clear that we have not expressed any opinion on the
merits of the matter. In the facts and circumstances of the case,
there is no order as to costs.
………………………….CJI
(T.S. THAKUR)
…………………………….J
(R. BANUMATHI)
New Delhi;
February 26, 2016
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