If in a proceedings under Order 23 Rule 1, sub-rule 3 of the CPC a suit is allowed to be withdrawn with a permission to file a fresh suit on the fullfilment of the condition of payment of costs as condition precedent and if the said costs are not paid the same may be stretched to a reasonable time fixed by the Court
(1994) AIR(Calcutta) 154
CALCUTTA HIGH COURT
SINGLE BENCH
( Before : Bijitendra Mohan Mitra, J )
GOBORDHAN ROY — Appellant
Vs.
PANNALAL SHAW — Respondent
C.O. 2697 of 1992
Decided on : 14-01-1994
Civil Procedure Code, 1908 (CPC) – Section 115A, Section 148, Section 47
Civil Procedure Code, 1908 (CPC) – Section 148 – Power of the Court to extend time for deposit of amount – The Court has power to extend the time – Where the execution proceedings were stayed with the conditions to deposit the amount in question within eight days – Extension of time sought on the ground of illness, however, medical certificate not produced – In such circumstances the Court rightly refused to extend the time for deposit amount in questions.
Cases Referred
Konkan Trading Company Vs. Suresh Govind Kamat Tarkar and Others, AIR 1986 SC 1009 : (1986) 1 SCALE 462 : (1986) 2 SCC 424 : (1986) 2 SCR 182 : (1986) 2 UJ 8
Counsel for Appearing Parties
Tapan Dutta, for the Appellant; Shyama Prasanna Roy Chowdhury and Buddhadev Ghoshal, for the Respondent
ORDER
1. The present revisional application is directed against an Order No. 100 dated 22-8-92 passed by the learned Munsif, 2nd Court, Howrah in Misc. Case No. 50 of 1990. The said Misc. Case is in respect of an objection taken by the Judgment’-debtor in a proceedings u/s 47 of the Code of Civil Procedure.
2. The connected litigation has a chequered career. It appears from the perusal of the plaint of the connected soil being Title Suit No. 361 of 1993 that a previous suit for eviction being Title Suit No. 337 of 1966 was decreed long time back on contest against which an appeal was preferred and thereafter a controversy was set at rest as the decree-holder was delivered possession of the property. Being emboldened by the prevalent situation of unrest prevailing in the area, the defendant was alleged to have trespassed into the land and property in question including that which was covered by a decree of eviction. The plaintiff thus found no other alternative but to rush to the Civil Court for recovery of possession of the suit premises, and the plaintiff was favoured with a gram of a decree in connected suit. The matter went up to this Court in second appeal and the decree passed in favour of the plaintiff was sustained. Thereafter another suit was alleged to have been filed by the defendant who is the judgment-debtor in the connected suit challenging the said decree as inoperative and invalid and abortive attempt was made to obtain order of injunction. Thereafter the same was said not to have been pressed and the judgment-debtor fell back upon the connected proceedings u/s 47 of the Code of Civil Procedure. The pith and substance of objection taken in Section 47 was to the effect that the right title and interest of the superior landlord was purchased by the defendant as early as in 1973. The said question was gone into even at the stage of second appeal and the point was negatived.
3. The revisionist here in the connected Misc. Case filed an application for stay of execution and the Executing Court directed the judgment-debtor petitioner to deposit Rs. 5,000/- in Court within seven days from the date of the order and on compliance of the said condition it was directed that the execution would remain stayed till the disposal of the Misc. Case. It apparently, appears that the backdrop of the scenario of such a long and arduous litigation and after taking note of the conduct of the parties, the Executing Court saddled the judgment-debtor with liberty to pay costs as aforesaid. The revisionist against the said order moved up in revision u/s 115A of the CPC and the same was disposed of by the learned Additional District Judge, 3rd Court, Howrah in C. R. 189 of 1990 by which the said petition u/s 115A of the CPC stood rejected as on 31st May, 1991 as the learned Judge did not find any merit in the case. From the said order it does not appear that any prayer was made before the self-same court for extension of time to deposit the costs which could not have been deposited in view of the pendency of the revisional proceedings.
4. The petitioner in the present revisional application, thereafter, filed an application u/s 148 of the CPC before the learned Executing Court in connected Title Execution Case and it has been specifically averred in paragraph 6 of the said petition that on 27-5-91 the judgment-debtor petitioner suddenly became indisposed and has to undergo medical treatment upto 19-8-91 and craved leave of the Court to produce the Doctor’s Certificate at the time of hearing on the next date. It is curious to note that paragraph 6 of the petition u/s 148 of the CPC filed in the Trial Court does not make any mention about the nature of ailment of the petitioner for which he required long treatment upto 19-8-91. Thereafter at the time of hearing of the said petition u/s 148, the judgment debtor could not produce the medical certificate. Accordingly, the learned Munsif has been pleased to hold that the petitioner has no bona fide ground to make the deposit as directed by the Court. It appears that the learned Munsif has exercised his discretion u/s 148 with regard to the refusal to grant of enlargement of time because of non-production of the materials and also of inconsistent stand taken by the judgment-debtor/petitioner as he did not act then in consonance with his promise meted out in Court in an earlier occasion. It apparently, appears that there is no material of whatsoever nature at the disposal of the learned Executing Court by placement of reliance on which it can exercise its discretion of enlargement of time u/s 148 of the Code of Civil Procedure.
5. Mr. Tapan Dutta, learned counsel appearing for the petitioner and Mr. S.P. Roy Chowdhury, learned Counsel appearing for the opposite party have put forward their respective contentions.
6. Mr. Dutta, appearing for the petitioner tried to impress upon the Court by deciphering a missing link between the premise and the conclusion, as according to him, the final conclusion rests upon the penultimate premise that the petitioner went in revision against the said order which was dismissed. It is pertinent to observe that there is another salient fact to be taken note of as the petitioner has no bona fide ground and such inference has been drawn because of non-production of medical certificate. It is, also not out of place to mention that the learned Additional District Judge, 3rd Court, Howrah, in his order making disposal of C.R. No. 189 of 1990 has given a reference in the background of the facts of this case and he also took note of the fact that the amount mainly covered by the decretal dues have been put in the name of the Court and not in the name of the decree-holder. Since the decree was obtained as earlier as in 1975 and with passage of time a rough calculation was made by the learned Judge in revision that a total sum of more than Rs. 20,000/- besides Rs. 1920/- as damages have already been accumulated towards the occupation charges in terms of prayer ‘B’ of the plaint as granted in the decree.
7. Mr. Dutta in course of his strenuous submission has contended that Section 148 is required to be liberally construed but unfortunately the discretion exercised by the Court concerned is not open to be assailed if that is an exercise of judicial discretion. Be it noted further that the Court is left with no excusable discretion and the Court is required to exercise judicial discretion. Mr. Dutta has referred to a decision of the apex Court in the case of Konkan Trading Company Vs. Suresh Govind Kamat Tarkar and Others, wherein the Supreme Court has laid down that if in a proceedings under Order 23 Rule 1, sub-rule 3 of the CPC a suit is allowed to be withdrawn with a permission to file a fresh suit on the fullfilment of the condition of payment of costs as condition precedent and if the said costs are not paid the same may be stretched to a reasonable time fixed by the Court. Mr. Dutta, learned Advocate for the petitioner has impressed with his persuasive accent, the caution given by the Supreme Court in the said Judgment that justice should be the life aim of the Courts instead of their lip aim. Justice is also required to be comprehended in the perspective of the revisional jurisdiction by this Court with regard to its content and concept. It is not out of context to mention that justice is not one way traffic and flow of justice should not be concluded by plethora of purposive litigations to allow a valid decree-holder to be kept out of possession for inordinate period by recourse to marathone process of opening out chapter of multifarious facts of litigations. The hatch of controversy involved in the present position is required to be buried at least to decipher glimpse of finality of litigation and that is also warranted for consideration for the ends of justice.
8. Accordingly, this Court does not feel inclined to interfere with the discretion exercised by the learned Munsif in the impugned order within the fabric in Section 148 of the CPC and accordingly an order under challenge is sustained.
9. The revisional application thus stands dismissed.
10. There shall be, further, no order as to costs.
11. Let a xerox copy of this order be made available to the learned Advocate for the opposite party on usual undertaking and upon compliance of necessary formalities.
12. Revision dismissed.
(1994) AIR(Calcutta) 154
