1976 (8) TMI 169 - HC - Indian Laws

Court Rules on Jurisdiction to Extend Time for Costs; Appealability of Suit Dismissal Order

Budhulal Kasturchand Versus Chhotelal and Ors.

The Court held that it retains jurisdiction to extend the time for depositing adjournment costs even after the period has expired, as long as a formal ... - Issues Involved:1. Whether the Court has the power to extend the time for depositing costs under Sections 148 and 149 of the Code of Civil Procedure (C.P.C.) even after the period granted has expired.2. Whether an order dismissing a suit for non-payment of adjournment costs is appealable as a decree.Issue-wise Detailed Analysis:Issue 1: Extension of Time for Depositing CostsThe primary question was whether the Court could extend the time for depositing adjournment costs under Sections 148 and 149, C.P.C., even after the period initially granted had expired. The Court outlined three stages at which a defaulting party might seek an extension:1. Before the time fixed has expired.2. After the time fixed has expired but before the Court has passed an order finally disposing of the proceeding.3. After the Court has finally disposed of the proceedings.The Court observed that in the first case, it is undoubted law that the Court has jurisdiction to extend the time. Sections 148 and 149 are clear and apply in terms. The third case also presents no difficulty, as the Court becomes functus officio and cannot entertain an application for extension unless the order disposing of the proceedings is set aside.The controversy centered on the second case. One view held that the Court becomes functus officio and loses jurisdiction to extend the time once the period fixed has expired. The contrary view, which the Court concurred with, was that the Court retains the power to extend the time even after the period has expired, provided it has not yet passed a formal order finally disposing of the suit or proceeding.The Court emphasized that the language of Section 148, C.P.C., is wide enough to vest the Court with jurisdiction to enlarge the time, even if the period originally fixed has expired. The Court does not lose seisin of the case after the expiry of such period notwithstanding a default. The Court retains jurisdiction until it makes an order finally disposing of the proceeding.Issue 2: Appealability of an Order Dismissing a Suit for Non-Payment of CostsThe second issue was whether an order dismissing a suit for non-payment of adjournment costs is appealable as a decree. The Court noted the divergence of views on this question. One view held that the word 'default' in Section 2(2), C.P.C., which defines 'decree,' is comprehensive enough to include non-payment of costs, thereby making such an order non-appealable. The contrary view, which the Court supported, was that an order dismissing a suit for non-payment of costs is appealable as a decree.The Court reasoned that the word 'default' in Section 2(2) of the C.P.C. refers only to non-appearance of parties as specifically referred to in Order 9 and Order 17, Rule 2, C.P.C. It does not include any other default. The word 'default' in Order 17, Rule 3, C.P.C., however, is wide enough to apply to every default referred to in the earlier part of the Rule, including non-payment of costs. Therefore, the dismissal of a suit for non-payment of costs falls within the purview of Order 17, Rule 3, and is appealable.The Court also highlighted the principle of harmonious construction, stating that the same word can be construed to have different meanings in different contexts within the same statute. This approach ensures that the provisions of the statute are reconciled to advance the remedy intended by the Legislature.Conclusion:The Court answered the two questions thus:1. The Court retains jurisdiction to extend the time for performing an act even after the period has expired, as long as it has not passed a formal order disposing of the suit or proceedings.2. An order dismissing a suit for default in payment of costs is appealable as a decree. The word 'default' in Section 2(2) of the C.P.C. refers to non-appearance of parties and does not include other defaults, while the word 'default' in Order 17, Rule 3, C.P.C. applies to every default referred to in the Rule.Case-Specific Facts and Decision:In the specific case, the plaintiff's suit was dismissed for non-payment of adjournment costs. The plaintiff offered to pay the costs on the next hearing date, which was a day after the deadline due to the intervening Sunday. The Court held that the dismissal was erroneous and illegal, as the plaintiff had the right to pay the costs on the next working day. The appeal was allowed, the dismissal order was set aside, and the case was remanded to the trial Court for further proceedings. The parties were directed to bear their own costs incurred from the date of dismissal until the present judgment.