Case Note & Summary
The Supreme Court of India considered an appeal arising from a title suit in which the appellant, as plaintiff, sought a declaration that he was nominated Mahant of Moghal Juan Sangat by his Guru through a registered deed dated October 21, 1944, and had the right to manage the Sangat and its properties. The trial court dismissed the suit on May 31, 1947. On appeal, the Patna High Court on November 26, 1951, decided in the appellant's favour on condition that he paid court fee on the amended relief of possession, and the case was sent to the trial court for valuation. After a report, the High Court on March 30, 1954, fixed the valuation at Rs. 12,178-4-0 and directed the appellant to pay the deficit court fee within three months from the date counsel was informed, with the peremptory order that if the amount was not paid within the time given, the appeal would stand dismissed. The office intimated on April 8, 1954, that the deficit court fee payable was Rs. 1,987-8-0, making the last date for payment July 8, 1954. The appellant was unable to raise the money due to serious illness and a sudden slump in the grain market. He filed an application on July 8, 1954, before the expiry of time, requesting permission to pay Rs. 1,400 immediately and the balance within a month. The application was heard on July 13, 1954, after the expiry, and was dismissed by a Division Bench on the ground that the appeal had already stood dismissed by virtue of the earlier peremptory order. The appellant then moved an application under Section 151 of the Code of Civil Procedure, which was rejected on September 2, 1954, with the observation that the proper remedy was review. He then filed a petition under Section 151 read with Order 47 Rule 1, setting out the reasons for non-payment and offering to pay within further time. This was dismissed on September 27, 1955, by a Division Bench which held that Sections 148 and 149 applied only to cases not finally disposed of and that time could be extended only before the final order was made. The High Court refused to exercise inherent powers for the same reason, though it expressed considerable sympathy for the appellant. On a certificate from the High Court, the appellant approached the Supreme Court. The Supreme Court held that the High Court had ample power under Sections 148 and 149 of the Code of Civil Procedure to extend time, even after the original period fixed had expired, and that the application filed on July 8, 1954, before the expiry of time, should have been considered on merits. The Court observed that such peremptory procedural orders, though intended to compel prompt compliance, are in terrorem and do not completely estop a court from taking note of events and circumstances happening within the time fixed. The Court stated that if the appellant had been robbed on the day previous, the court could not be said to be powerless to extend time. The Court referred to Lachmi Narain Marwari v. Balmakund Marwari and Latham v. Johnson. It held that the High Court erred on all occasions and that the time should have been extended on July 13, 1954, and again when the petitions under Section 151 were filed. The Supreme Court set aside the order dated July 13, 1954, and all subsequent orders, set aside the dismissal of the appeal and suit, and granted the appellant two months' time from the date of judgment to pay the deficit court fee. No order as to costs was made because the appeal was heard ex parte.
Headnote
A) Civil Procedure - Extension of Time - Section 148 of the Code of Civil Procedure, 1908 - Court has power to extend time for payment of court fee even if the original period fixed has expired; an application for extension filed before expiry should not be rejected solely because a peremptory order had automatically dismissed the appeal - The High Court passed a peremptory order that the appeal would stand dismissed if court fee was not paid within three months; the appellant filed an application for extension on the last day before expiry, but the High Court dismissed it after expiry holding the appeal had already stood dismissed - Held that Section 148 allows extension of time even if the original period fixed has expired, and the High Court erred in not considering the application on merits (Paras not mentioned). B) Civil Procedure - Payment of Court Fee - Section 149 of the Code of Civil Procedure, 1908 - Court has liberal power to allow payment of court fee at any stage and to extend time, including where the period fixed in a conditional order has expired - The appellant could not raise the deficit court fee of Rs. 1,987-8-0 within time due to serious illness and sudden slump in the grain market; he offered partial payment and sought further time - Held that Section 149 is equally liberal and the High Court had ample power to apply it to do justice to the litigant (Paras not mentioned). C) Civil Procedure - Inherent Powers - Section 151 of the Code of Civil Procedure, 1908 - Inherent powers can be invoked to restore a suit or proceeding and extend time for payment of court fee, even after a peremptory order has operated, when sufficient cause is shown - The High Court dismissed two applications under Section 151 on the ground that the appeal had already stood dismissed and the court was powerless - Held that peremptory procedural orders are in terrorem and do not completely estop the court from taking note of events and circumstances which happened within the time fixed; the court could have exercised inherent powers to grant relief (Paras not mentioned). D) Civil Procedure - Nature of Peremptory Orders and Review - Code of Civil Procedure, 1908, Order 47 Rule 1 - A peremptory order dismissing an appeal for non-payment of court fee is not final in the sense that it bars correction under Sections 148, 149 and 151; review under Order 47 Rule 1 may not lie, but inherent powers provide the remedy - The High Court held the review application did not fall within Order 47 Rule 1 and refused to extend time under Sections 148 and 149 - Held that the court's error in treating the peremptory order as absolute was correctable through its inherent powers, and the Supreme Court set aside the dismissal and granted two months' time to pay the deficit court fee (Paras not mentioned).
Issue of Consideration
Whether the High Court was powerless to enlarge time for payment of deficit court fee after the expiry of the period fixed in a peremptory order, when an application for extension of time was filed before expiry, and whether Sections 148, 149 and 151 of the Code of Civil Procedure, 1908 could be invoked to grant relief.
Final Decision
Appeal allowed. The Supreme Court set aside the order dated July 13, 1954, and all subsequent orders, set aside the dismissal of the appeal and suit, and granted the appellant two months' time from the date of judgment to pay the deficit court fee. No order as to costs because the appeal was heard ex parte.
Law Points
- Peremptory procedural orders are in terrorem and do not completely estop a court from extending time
- Sections 148 and 149 of the Code of Civil Procedure
- 1908 allow extension of time even after expiry of the period fixed
- Section 151 of the Code of Civil Procedure
- 1908 enables the court to exercise inherent powers to do justice
- An application for extension of time filed before expiry of the period must be considered on merits even if heard after expiry
