D.V.Paul vs Manisha Lalwani

CIVIL APPEAL NOS. 6734-6735 OF 2010 (Arising out of S.L.P. (Civil) Nos. 19478-19479 of 2009

D.V. Paul ...Appellant

Versus

Manisha Lalwani ...Respondent

JUDGMENT

T.S. THAKUR, J.

1. Leave granted.

2. This appeals arise out of orders dated 17th June, 2009

and 30th July, 2009 passed by the High Court of Madhya

Pradesh at Jabalpur whereby an application seeking 2

extension of time for deposit of a sum of Rs.10,000/- by the

appellant in terms of a judgment and decree dated 4th May,

2006 passed by the High Court in FA No.108/2003 has been

dismissed.

3. The respondent Smt. Manisha Lalwani filed a suit for

eviction of the appellant under the M.P. Accommodation

Control Act, 1961 before the Additional District Judge, Fast

Track Katni, alleging nuisance within the meaning of Section

12(1)(c) of the Act, for default in payment of rent contrary

to Section 12(1)(a), damage to the premises contrary to

Section 12(1)(k) and material alteration of the

accommodation to the detriment of the landlord's interest

diminishing the value of the property contrary to Section

12(1)(m) of the M.P. Accommodation Control Act, 1961 as

grounds for eviction. The suit was contested by the appellant

and eventually dismissed by the Trial Court holding that

none of the allegations made by the respondent had been

proved by her. Aggrieved by the said dismissal, the

respondent appealed to the High Court of Judicature at 3

Jabalpur. The High Court passed an order dated 4th May,

2006 holding that the appellant was not in default of

payment of rent so as to justify an order of his eviction

under Section 12(1)(a) of the Act. The Court further held

that the respondent had failed to prove that the appellant

had caused any nuisance or that he had caused substantial

damage to the premises owned by the landlord as envisaged

under Section 12(1)(a) of the Act. In so far as construction

of a wall by the tenant contrary to Section 12(1)(m) was

concerned, the High Court held that the additional

construction raised by the tenant did not provide any cause

of action for his eviction. The Court further held that in order

to warrant eviction the construction must be of such as

materially alters the accommodation. The Court found that

the construction made in the instant case was of a

temporary character and that such construction could be

removed at any time without causing any damage to the

building. As regards demolition of a wall by the appellant-

tenant, the same was found to be detrimental to the interest 4

of the landlord as it diminished the value of the

accommodation substantially. Relying upon Section 12(10)

of the Act the Court held that it was lawful to determine and

direct payment of compensation to the landlord for the

damage could by him. The Court accordingly determined the

damage at Rs.10,000/- and modified the decree passed by

the Trial Court to the effect that the appellant shall deposit a

sum of Rs.10,000/- by way of compensation in the Trial

Court within four months from the date of the judgment of

the High Court for payment to the landlord. In case the

appellant failed to deposit the amount so determined, the

Trial Court was directed to pass a decree for eviction of the

tenant under Section 12(1)(m) of the Act. In case,

however, the deposit was made within the specified period,

the suit filed by the respondent-landlady was to stand

dismissed.

4. The appellant's case is that aforementioned order of

the High Court was communicated to him by his lawyer on

telephone followed subsequently by the receipt of a copy of 5

the said order. The appellant's further case is that due to

inadvertence he did not notice that the amount of

Rs.10,000/- had to be deposited before the Trial Court. The

result was that instead of depositing the sum of Rs.10,000/-

before the Trial Court, the appellant got a demand draft

prepared in the name of the respondent from the Bank of

Baroda at Katni Branch on 24th August, 2006. A copy of the

deposit slip has been produced by the appellant in support of

his version that a demand draft was indeed prepared in the

name of the respondent for a sum of Rs.10,000/- from the

Bank aforementioned. The appellant's further case is that

the demand draft was then sent by Registered Post A.D.

No.6868 through the Katni Branch Post Office to the address

of the respondent at Jabalpur. The registered envelop was

received at the respondent's house by her maid servant

Durga who made an endorsement on the receiving slip, a

true copy whereof has also been enclosed as Annexure P3 to

the petition. According to the appellant even in the past he

had sent demand drafts to the respondent for payment of 6

rent due to her which drafts were received by her maid

servant.

5. The appellant alleges that although the respondent had

received the bank draft sent to her, the same was not

encashed nor any acknowledgement sent to the appellant.

He did not even receive any communication from the

landlady pointing out that the amount had to be deposited in

the Trial Court and not to be paid directly to her. The silence

and inaction on the part of the respondent was according to

the appellant deliberate and under the advice of her

husband who is a practicing lawyer and also the power of

attorney holder of the respondent.

6. Four months after the demand draft was sent the

respondent filed an application before the Trial Court praying

for a decree under Section 12(1)(m) of the Act stating that

the deposit of Rs.10,000/- directed by the High Court had

not been made by the appellant. The error in the making of

the deposit thus came to the knowledge of the appellant 7

only when he received a copy of the application moved by

the respondent.

7. In the meantime, the respondent had challenged the

order passed by the High Court in FA No.108 of 2003 before

this Court by way of Special Leave Petition which was

dismissed by this Court on 16th March, 2007. Realising his

mistake the appellant appears to have addressed a

communication to the Post Master, Jabalpur for verification

whether letter sent by him under Registered A.D. No.6868,

had been delivered to the respondent. A communication was

also addressed to the Branch Manager, Bank of Baroda,

Katni, for a certificate to the effect that bank draft

No.VG220839 dated 24th August, 2006 was issued by the

said bank in favour of the respondent and whether or not

the said draft had been encashed. Yet another

communication was addressed to the Bank Manager, Bank of

Baroda Napier Town, Jabalpur, demanding a certificate

whether the demand draft in question had been encashed.

Simultaneously, an application was moved before the III, 8

Additional District Judge, Katni, praying for deposit of a

fresh draft for an amount of Rs.10,000/- in the CCD account

of the Court in terms of the order of the High Court. A fresh

bank draft was also enclosed with the said application. Not

only that the appellant also moved MCC 1876 of 2007 under

Section 151 Code of Civil Procedure before the High Court at

Jabalpur setting out in detail the facts leading to the delay in

submission of the demand draft before the Trial Court and

steps that the appellant had taken in compliance with the

order passed in appeal. In the said application the High

Court passed an order on 6th December, 2007 in which it

noticed the denial of the respondent as to the receipt of the

bank draft by her. The reply of the respondent, however,

was silent as to whether any maid servant by the name

Durga was employed by her and whether Durga had

received the bank draft in question. The Court in that view

considered it necessary to direct an inquiry in to the matter

particularly whether the maid servant of the respondent had

received the bank draft on behalf of the decree holder and 9

whether the draft is being retained by the decree holder.

The Executing Court was directed to record evidence to be

led by the parties within a period of six weeks.

8. The above order was challenged by the respondent

before this Court in C.A. Nos.3234-35 of 2009 which were

disposed of by order dated 5th May, 2009. This Court held

that execution of the decree passed by the Trial Court need

not be held up only because of the inquiry which the High

Court had directed into the question of deposit of the

amount by the appellant. This Court felt that since no

deposit had been made in terms of the decree passed by the

High Court, the Executing Court could proceed with the

execution of decree passed on 4th May, 2006. At the same

time this Court left it open to the Executing Court to proceed

with the inquiry as directed by the High Court. The operative

portion of the order passed by this Court reads as under:

"We have heard Mr. Ravindra Shrivastava, learned senior counsel appearing on behalf of the appellant-decree holder and Mr. Rohit Arya, learned senior counsel for the 1

respondent and have also considered the conditional decree and the application for extension of time and other materials on record. In our view, for the purpose of executing the decree, whether money has been deposited or not, it was not necessary to hold an inquiry whether in fact Smt. Durga had received the bank draft or not because in the conditional decree of the High Court, it was made clear that such amount must be deposited in the trial Court which was not done by the respondent. In this view of the matter, we are of the view that there is no reason why the Executing Court shall not proceed with execution of the decree passed on 4th May, 2006, and accordingly, we direct the Executing Court to proceed with the execution case passed on 4th May, 2006. However, it would be open to the Executing Court to proceed with the inquiry as directed by the High Court.

With these observations and/or modification, these appeals are disposed of. There will be no order as to costs."

9. When MCC No.1876 of 2007 came up for orders before

the High Court the same was disposed of by the order

impugned in this appeal holding that since an inquiry into

the question whether the bank draft sent by the appellant

has been received by the respondent through her maid

servant has been declared to be unnecessary by this Court 1

and since this Court has directed the Executing Court to

proceed with the execution case, no further action or

direction was necessary in the said application. What is

noteworthy is that the High Court did not examine the

question whether the prayer made by the appellant for

extension of time for making the deposit could be considered

and granted. It simply disposed of the application seeking

extension of time only because this Court had not favoured

the conduct of an inquiry into the question whether the bank

draft had been sent to the respondent and had been

received by her through her maid servant.

10. When the matter was taken up for hearing before the

Executing Court two applications came up for consideration,

one filed by the appellant and the other by the respondent.

The application made by the appellant, sought an inquiry

into the question whether the bank draft sent by the

appellant had been received by the respondent. The decree

holder's application on the other had pointed out that since

the High Court had disposed of MCC No.1876 of 2007 by its 1

order dated 17th June, 2009, there was no need for

conducting any inquiry. Both these applications were

disposed of by the Executing Court on 7th July, 2009. The

Executing Court held that since there was no need for any

inquiry for the execution of the decree, it was unnecessary

to go on with any such inquiry especially when the decree

holder was no longer demanding any such inquiry. All the

applications filed before the Executing Court were

accordingly disposed of.

11. Aggrieved by the above order, the appellant preferred

MCC No.7148 of 2009, which was dismissed by the High

Court on 30th July, 2009, relying upon the order passed by

this Court on 5th May, 2009 and that passed by the High

Court on 17th June, 2009. The present appeals assail the

correctness of the said two orders.

12. We have heard learned counsel for the parties at length

and perused the record. An inadvertent mistake in the

deposit of the amount directed by the High Court has turned 1

out to be a fertile ground for time consuming and expensive

litigation before this Court and the Courts below. The

essence of the matter is that the High Court had directed

deposit of Rs.10,000/- towards compensation payable to the

respondent landlady for the damages caused to the

premises in the occupation of the tenant-appellant. The

appellant's case was that instead of the deposit of the said

amount before the Trial Court as directed by the High Court,

he had committed a bonafide mistake in getting the bank

draft for the said amount prepared in the name of the

respondent and sending the same to her under Registered

A.D. In support of that submission, the appellant had

produced material to show that a bank draft had indeed

been prepared in the name of the respondent and

dispatched to her at her Jabalpur address.

13. Since the respondent denied the receipt of such a

draft, the question whether or not the draft had been sent

and if so received by the respondent through her maid

servant fell in issue for purposes of determining whether the 1

appellant had complied with the directions contained in the

decree. The High Court directed an inquiry into the matter

by its interim order dated 6th December, 2007. This Court in

appeal against the said order considered such an inquiry to

be unnecessary. This Court proceeded on the basis that

since the deposit was directed to be made in the Trial Court,

any other form of deposit would necessarily stand excluded

including a direct payment to the landlady by way of a draft.

This Court held that since the deposit had not been made,

the execution could go on without waiting for the result of

the inquiry, as a condition precedent. Those observations

made by this Court were understood by the High Court to

mean as though the question whether time for making of

the deposit could be extended stood foreclosed that was not

in our opinion a correct appreciation of the order passed by

this Court. MCC No.1876 of 2007 made a prayer for

extension of time for making of the deposit. Even assuming

that an inquiry into the making of the payment by the

appellant directly to the respondent was not necessary, the 1

question that was still required to be answered was whether

time for deposit of the amount in accordance with the

directions issued by the High Court could be extended.

Unfortunately, the High Court did not advert to that

question. It appears to have proceeded on the assumption

that since an inquiry into the payment of the amount directly

to the respondent was not favoured by this Court and the

Executing Court was directed to go on with the execution,

nothing really survived for consideration in MCC No.7148 of

2007. That was, in our opinion, not wholly correct. This

Court was only dealing with the interim order passed in MCC

7148 of 2007 on 30th July, 2007. Even if the said order was

set aside, the question whether the appellant was entitled to

extension of time for making of the deposit would have

continued to remain relevant and had to be answered by the

High Court on its own merits. The High Court failed to do so

while disposing of MCC No.1876 of 2007, which was not

correct.

1

14. The Trial Court was, however, correct in holding that it

could not extend time for making the deposit as the same

had been stipulated by the High Court nor could the

Executing Court go behind the decree. Holding of an inquiry

into the question whether the appellant had made the

payment directly to the respondent was also correctly found

to be unnecessary by the Trial Court, no matter this Court

had left the conduct of such an inquiry open to the Executing

Court. The fact of the matter was that the appellant had not

made the deposit in the manner required in the decree.

Whether or not the alternative mode for payment was

equally good, may not have called for any consideration, if

the parties had agreed to accept the alternative mode, as a

satisfactory compliance with the decree to give quietus to

the controversy. Where alternative mode is not accepted as

a satisfactory solution by the parties, as in the present case

the only remedy left to the party required to do an act like

making of a deposit was to do so in accordance with the

terms of the decree and in case there was a delay in the 1

doing of the act, seek extension of time on grounds that

would justify such extension. Since the High Court has failed

to consider the request made by the appellant on merits we

would have in the ordinary course remitted the matter to the

High Court for consideration of the application afresh and for

appropriate orders. We, however, feel that multiple rounds

of litigation on the subject, not only in the Courts below but

in this Court have already proved expensive, time

consuming and cumbersome for the parties. We, therefore,

consider it unnecessary to remit the matter back to the High

Court only for consideration of the application for extension

of time. In the peculiar facts and circumstances of the case,

we are ourselves inclined to intervene and pass suitable

orders on the subject.

15. Two aspects need to be examined on the question of

extension of time. The first is whether extension can be

legally granted in a case like the one at hand where non

making of the deposit would result in a civil consequence

like a decree of eviction against the appellant. The second is 1

whether in the facts and circumstances of the case,

extension of time is justified for making of the deposit, and

if so, on what terms.

16. In so far as the first aspect is concerned Section 148 of

the CPC, in our opinion, clearly reserves in favour of the

Court the power to enlarge the time required for doing an

act prescribed or allowed by the Code of Civil Procedure.

Section 148 of the Code may at this stage be extracted:-

"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."

17. 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. It is evident from the language employed 1

in the provision that the power given to the Court is

discretionary and intended to be exercised only to meet the

ends of justice. Several decisions of this Court have

explained the ambit and scope of the powers exercisable

under Section 148 of the CPC. In Mahanth Ram Das v.

Ganga Das, 1961 (3) SCR 763, this Court observed:

"Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on 13.7.1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from 8.7.1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances 2

which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed."

18. To the same effect is the decision of this Court in

Chinnamarkathian v. Ayyavoo, 1982 (1) SCC 159, where

this Court declared that the scope and exercise of the

jurisdiction to 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. The Court also called in the principle of

equity when 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 itself the jurisdiction to re-examine

the alteration or modification which may necessitate 2

extension of time. The following passage from the decision

is apposite:

"It is well accepted principle statutorily recognized 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."

2 19. Reference may also be made to the decisions of this

Court in Jogdhayan v. Babu Ram, 1983 (1) SCC 26, Johri

Singh v. Sukh Pal Singh, 1989 (4) SCC 403 and Ganesh

Prasad Sah Kesari v. Lakshmi Narayan Gupta, 1985 (3)

SCC 53.

20. In Salem Advocate Bar Association, T.N. v. Union

of India, 2005 (6) SCC 344, this Court had an occasion to

examine whether the restriction placed by the amendment

of Section 148 on the power of the Court to grant extension

of time beyond 30 days was reasonable. This Court held

that a power that is inherent in the Court to pass orders that

it considers necessary for meeting the ends of justice and

preventing abuse of the process of the Court cannot be

taken away by putting an upper limit on the period for which

an extension can be granted. Extension beyond the

maximum period of 30 days was accordingly held

permissible in the following words:

"The amendment made in Section 148 affects the power of the Court to enlarge 2

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."

21. It is not in the light of the above decisions open to the

respondent to argue that a Court can fix time for the doing

of an act like making of a deposit, in the instant case, but

has no jurisdiction to extend the said period even when a

case for such extension is clearly made out. The power to fix 2

the time for doing of an act must in our opinion carry with it

the power to extend such period, depending upon whether

the party in default makes out a case to the satisfaction of

the Court who has fixed the time. There is nothing in

Section 148 of the CPC or in any other provisions of the code

to suggest that such a power of extension of time cannot be

exercised in a case like the one at hand. The argument that

the power to extend time cannot be exercised where the act

in question is stipulated in a conditional decree has not

impressed us. We see no reason to draw a distinction

depending on whether the prayer for extension is in regard

to a conditional order or a conditional decree. The heart of

the matter is that where the Court has the power to fix time

and that power is not regulated by any statutory limits, it

has in appropriate cases the power to extend the time fixed

by it. It is common ground that neither the CPC nor the

provisions of M.P. Accommodation Control Act places any

limitation on the power of the Court in case like the one in

hand.

2

22. Coming then to the second aspect, namely, whether

the appellant has made out a case for extension, our answer

is in the affirmative. That the appellant had misunderstood

the order of the High Court leading to the preparation of the

bank draft of Rs.10,000/- in the name of the respondent and

its dispatch under Registered AD cover to the respondent

has not been seriously disputed before us. We are satisfied

that the appellant did get a bank draft prepared and

dispatched to the address of the respondent. This may not

have been a strict compliance with the direction issued by

the High Court regarding the deposit before the Trial Court

but this certainly establishes the bonafides of the appellant,

which is a weighty consideration while examining the

request for extension of time. It is true that the respondent

denied the receipt of the bank draft but that is not of much

significance. What is important is whether the appellant has

made out a case for extension based on what he had done in

discharge of his obligation - no matter on an erroneous

understanding of the direction of the Court. 2

23. That apart the fact that the appellant had offered to

deposit the amount of Rs.10,000/- afresh also shows that

there was no deliberate inaction on his part so as to

disentitle him to the relief of extension of time.

24. In the totality of the circumstances, therefore, we

consider it to be a fit case where extension of time for

making of the deposit by the Trial Court ought to be

granted. We accordingly allow the prayer for extension of

time to make the deposit of Rs.10,000/- by eight weeks

from today. The extension is, however, subject to payment

of cost of Rs.10,000/-. We make is clear, that in case the

appellant deposits a total sum of Rs.20,000/- within two

months from today the suit filed by the respondent shall

stand dismissed as directed by the High Court in the appeal

mentioned above failing which the decree passed by the

Trial Court shall revive and be executed in accordance with

law.

2

25. These appeals are, with the above direction, disposed

of.

.................................J. (AFTAB ALAM)

.................................J. (T.S. THAKUR) New Delhi August 18, 2010