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AMAR NATH GUPTA versus DISTRICT JUDGE AND OTHERS

High Court of Judicature at Allahabad

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Amar Nath Gupta v. District Judge And Others - WRIT - C No. 52112 of 2006 [2006] RD-AH 16430 (20 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

      COURT NO.6

CIVIL MISC. WRIT PETITION NO.52112 OF 2006

Amar Nath Gupta    Vs.       District Judge, Gorakhpur & others

                    _______________________  

Hon'ble Tarun Agarwala, J.

Heard Sri Santosh Kumar Srivastava, the learned counsel for the petitioner and Sri A.P.Tiwari, the learned counsel appearing for respondent no.3.

The plaintiff respondent no.3 filed a suit for specific performance, which was decreed by a judgment dated 5.2.2006. The petitioner filed an appeal. A sum of Rs.11,697/- towards court fee was required to paid by the appellant. The petitioner appellant presented the memorandum of appeal by depositing a sum of Rs. 665/- and moved an application seeking time to deposit  the remaining court fee. The Court vide order dated 9.3.2005 and 15.4.2005 granted time to the appellant to deposit the deficiency of court fee. It transpires  that on 16.5.2005, the petitioner deposited a further sum of Rs.6,500/ and prayed further time to deposit the balance amount towards the deficiency of the court fee. The court rejected the application for the the extension of the time. It transpires that the petitioner moved a recall application and during the pendency of the recall application, deposited  the balance sum of Rs.4300/- towards the deficiency of court fee and submitted before the court that now the entire court fee had been deposited and therefore, the delay in clearing the deficiency of court fee be condoned and the appeal be registered and the order dated 16.5.2005 be recalled . The District Judge vide his order dated 7.8.2006 rejected the application of the petitioner. Consequently, the present writ petition.

The learned counsel for the petitioner submitted that sufficient ground had been made out for enlarging the time for clearing the  deficiency of court fee. The petitioner  submitted that because of financial  constraints he was unable to deposit the court fee and on this ground he should not be denied the valuable right of filing an appeal and contesting the decree passed against him.

                                              2.

Sri A.P.Tiwari, the learned counsel for the plaintiff-respondent submitted that the writ petition was not maintainable, inasmuch as the order dated 16.5.2005 was passed under Order 41 Rule 17 C.P.C. against which the recall /restoration application could be filed under Order 41 Rule 19 C.P.C. and upon the dismissal of such an application a miscellaneous appeal could be filed under Order 43 Rule 1[t] C.P.C. Consequently, the present writ petition under Article 226 of the Constitution of India was not maintainable.

The learned counsel for the respondents further submitted that in view of the provision of Section 148 and 149 C.P.C. a party could not claim an extension of the time as a matter or right and that under exceptional circumstances, the court has the discretion to enlarge the time for clearing the deficiency of the court fee. The learned counsel further submitted, that in the present case, no exceptional circumstances was shown by the appellant for extending the period for clearing the deficiency of court fee and, consequently the Court below was justified in rejecting the application of the petitioner. In support of his submission, the learned counsel for the respondent  placed reliance upon a decision of the Division Bench of this Court in Smt. Sukki  and others Vs. U.P. Avas Vikas Parishad, Lucknow, (1999) 1 ACJ 304 and Rajesh Kumar alias Rajoo and others Vs. Bal Kishan Agnihotri, 1992 ACJ 786.

Before proceeding any further it would be appropriate to consider a few provisions of the Code of Civil Procedure. Section 149 of the C.P.C. reads a under :

"149. Power to make up deficiency of Court-fees-- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee ; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."

Under Section 148 C.P.C., the Court, in its discretion, has the power to enlarge the time. Section 148 of the  C.P.C. reads as under :

"148. Enlargement of time- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by

                                                   3.

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."

The Supreme court in Salem Advocate Bar Association, T.N. Vs. Union of India, (2005)6 SCC-344 while interpreting the provisions of Section 148 and 149 after the amendment vide Act No.46 of 1999 w.e.f. 1.7.2002 held-

" 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 in 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."

"43. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extend time beyond 30 days."

From the aforesaid, the Supreme Court held that the upper limit fixed under section 148 of the Act cannot take away the inherent powers of the court to pass an order as may be necessary for the ends of justice. The Court has an inherent power under section 151 C.P.C. to extend the time. In the present case, the plea of financial constraints on the part of the appellant has nowhere been considered by the court below nor any finding  has been given that the appellant had the requisite resources to pay the court fee and that he was seeking time in order to delay the execution of the decree. In the absence of any

                                              4.

findings  on  this aspect,  this  Court  is  of  the opinion  that  the court

below was not justified in rejecting the application of the petitioner, especially, when during the interim period he had deposited the remaining  balance  amount of the court fee. The court below should have considered this aspect of the matter, considering that the delay in clearing the deficiency of the amount was only five months.

In view of the aforesaid, the impugned orders dated 16.5.2005 and 17.8.2006 cannot be sustained and are set aside. Since the petitioner has already cleared the deficiency of the court fee, the appellate court is directed to register the appeal as a regular appeal and decide the same within a period of six months from the date of the production of a certified copy of this order. In the circumstances of the case, there shall be no order as to cost.

Dt.20.9.2006

Ak/52112/06


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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