Madras High Court
Sri Venkateshwara Financer vs Sargunammal on 22 February, 2021
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.02.2021
CORAM :
THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY
C.R.P (PD).Nos.2403 & 2404 of 2018
and
Cmp.Nos.14841 & 14842 of 2018
Sri Venkateshwara Financer,
Rep.by its Owner,
V.Varadararajan, S/o.Late Viswanathan ... Petitioner
(in both CRP)
Versus
Sargunammal ... Respondent
(in both CRP)
Prayer in CRP.No.2403 of 2018: Civil Revision Petition filed
under Article 227 of the Constitution of India, to set aside the Docket order
dated 18.07.2018 made in I.A.No.290 of 2018 in I.A.No.529 of 2017 in
O.S.No.89 of 2013 on the file of the learned Subordinate Judge at
Vaniyambadi, Vellore District.
Prayer in CRP.No.2404 of 2018: Civil Revision Petition filed
under Article 227 of the Constitution of India, to set aside the Docket order
dated 18.07.2018 made in I.A.No.291 of 2018 in I.A.No.531 of 2017 in
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
O.S.No.90 of 2013 on the file of the learned Subordinate Judge at
Vaniyambadi, Vellore District.
For Petitioner : Mr.Udaya Kumar S.
(in both CRP)
For Respondent : Mr.N.Suresh
(in both CRP)
COMMON ORDER
These Civil Revision petitions have been filed challenging the
docket orders dated 18.07.2018 made in I.A.No.290 and 291 of 2018 in
I.A. Nos. 529 and 531 of 2017 in O.S.Nos.89 & 90 of 2013 respectively by
the Court below, by which the court below extended the time limit for
compliance of the earlier order 23.04.2018 for the payment of cost of
Rs.2,500/- in both the applications.
2.The Court below, while passing the order dated 23.04.2018, in
I.A.No.529 and 531 of 2017, filed under Section 5 of the Limitation Act
to condone the delay of 48 days in filing the petition to set aside the
exparte decree passed in O.S.Nos.89 & 90 of 2013, stated that the time
limit for the payment of cost to the revision petitioner was extended till
04.06.2018, on failure to pay the cost of Rs.2,500/- to the revision
petitioner herein, the application would be dismissed automatically on
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
06.06.2018. But she has not paid the costs to the revision petitioner herein,
within the time limit.
3.The learned counsel for revision petitioner submits that the
court below became functus officio to extend the time, while so, the Court
below has no authority to pass the order extending the time. In such case,
the revision petitioner has no other remedy against the said docket but to
file a Civil Revision Petition before this Court. In support of his
contention, he relied on the judgments of this Court in reported in 2001 (3)
Law weekly 254, 2003 (3) MLJ 770 and 2005(3) MLJ 331 and also relied
on the judgment of Hon'ble Supreme Court of India, in the case of Bholi
(Dead) by LR's vs. Lachhman Singh & others. Further, the learned
counsel for the petitioner contended that the Court below should not have
extended the time by virtue of the impugned order as the said court
become functus officio to pass any order for extension of time beyond
06.06.2018. Therefore, he submitted that the order passed was without any
application of mind and the same is liable to be set aside.
4.Per contra, the learned counsel for the respondent submitted
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
that the applications were filed under Section 148 of CPC, for extension of
time. The court below has power to extend the time, in case, if the order
has been passed with the condition on payment of cost within the time
limit. Hence, the application filed under Section 148 of CPC was heard on
merits and decided by the court below. In the result, the application was
allowed and the time limit was also extended by the court below. Further,
he submitted that the court has not become functus officio to extend the
time for payment of costs and in this regard, he relied on the judgment of
the Division Bench of this Court in the case of Gowri Ammal vs.
Murugan & others reported in CDJ 2006 MHC 1278, and also reported
Judgment of this Court in CDJ 2014 MHC 6722 in the case of
Kumarasamy vs. Venkatesan, and contended that there is no illegalities
in the order passed by the Court below and the same is not liable to be set
aside. There is no merit in the present Civil Revision Petition and he
prayed to dismiss the revision petition.
5.Heard the learned counsel for the petitioner and the learned
counsel appearing for the respondent and perused the materials available
on record.
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
6.Upon perusing the records, an exparte order was passed on
03.04.2017 in O.S.Nos.89 & 90 of 2013. Immediately, after passing the
exparte order, the respondent herein filed the applications in I.A.Nos.529
& 531 of 2017 respectively in the suit, to condone the delay of 48 days in
filing the petitions to set aside the exparte order dated 03.04.2017. The
said petitions were allowed on 23.04.2018 on condition to pay a sum of
Rs.2,500/- as cost. As per the order of the Court below, the respondent
herein was supposed to pay the cost on or before 06.06.2018, but, she has
not paid any cost as ordered by the Court below in I.A.Nos.529 & 531 of
2017. Subsequently, she filed applications in I.A.Nos.290 & 291 of 2018
in I.A.Nos.529 & 531 of 2017 respectively, after a lapse of 7 days from the
date on which she ought to have complied with the order on 06.06.2018,
therefore, she filed the said applications under Section 148 of CPC., to
extend the time for payment of costs of Rs.2,500/-. The Court below after
considering the petitions on merits extended two weeks time to pay the
cost of Rs.2,500/-. At this juncture, it would be appropriate to refer the
decision rendered by the Division Bench of this Court reported in Gowri
Ammal vs. Murugan & others reported in CDJ 2006 MHC 1278,
wherein, it was held as follows:-
"10.Section 148 of CPC reads as follows:
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
“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.”
11.The above Section is clear that even
after expiry of the period already granted, the Court
has jurisdiction to extend the period subsequently, by
exercising the power under Section 148 CPC, even if
an application has been filed subsequent to the
expiry of the original period fixed. "'
7.Further, this Court also elaborately discussed and arrived at a
conclusion to extend the time limit even after the expiry of time as per
Section 149 of CPC, in another the judgment reported in CDJ 2014 MHC
6722 in the case of Kumarasamy vs. Venkatesan, wherein, these aspects
were considered in paragraph No.14, which reads as follows:-
"14.Keeping the above principles in mind, if
we look into the facts and circumstances of the present
case, it would show that the application filed after the
expiry of the time, is certainly entertainable and the
Court below has rightly entertained. Therefore, it
cannot be contended that the trial Court ought not to
have entertained the application. When once the Court
has the power to extend the time for performing the
action as directed in the original order, it goes without
saying that the original order itself is revived and
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
therefore, the consequential dismissal or deemed
dismissal also gets restored to its original position. If a
power is conferred to extend the time even after its
expiry, exercise of such power and passing an order
thereon, would over-ride the consequential order or
orders. Otherwise, it is meaningless to confer such
power. Hence, restoration of the original order
becomes automatic, once the time is extended. Such
restoration is only technical in nature and does not
require an adjudication."
8.A perusal of the judgment would show that even an application
was filed for an extension of time, after the expiry of the time limit fixed
by the Court, the Court has power to entertain the petition. In the present
case, admittedly the application was filed after a period of 7 days, from the
time limit fixed by the Court below. The time was granted for the payment
of costs of Rs.2,500/- on or before 04.06.2018. Further, the Court below
observed that in case of the non-payment of the said amount, the
application would be dismissed automatically on 06.06.2018. Since the
costs was not paid, the application was dismissed. A petition for extension
of time was filed after a lapse of 7 days from the date on which, she ought
to have been complied with the order on 06.06.2018. As per the law laid
down by the Division Bench of this Court in the above judgment, even
after the expiry of the time limit fixed by the Court below for the payment
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
of costs, the application for extension of time for payment of costs is
permissible. The said principle will apply to the present case as well.
Therefore, I do not find any substances in the submissions of the learned
counsel for the revision petitioner. Thus, this Court does not find any
merits in the present revision petitions.
9.In the result, the Civil Revision Petitions are dismissed
confirming the order dated 18.07.2018 made in I.A.No.290 and 291 of
2018 in I.A.No.529 and 531 of 2017 in O.S.No.89 and 90 of 2013 on the
file of the learned Subordinate Judge at Vaniyambadi, Vellore District. No
costs. Consequently, the connected miscellaneous petitions are closed.
10.However, while dismissing the Civil Revision Petitions, since
the matter is pending for eight years, this Court directs the Court below to
dispose of the suits, within a period of four months, from the date of
receipt of a copy of this order.
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
11.In case, if the costs has not been paid as directed by the Court
below so far, two weeks time is granted for the payment of costs of
Rs.2,500/- as directed by this Court, from the date of receipt of a copy of
this order.
22.02.2021
Index : Yes / No
Internet : Yes / No
Speaking Order : Yes / No
klt
To
The Subordinate Judge,Vaniyambadi, Vellore District.
https://www.mhc.tn.gov.in/judis/
C.R.P (PD).Nos.2403 & 2404 of 2018 and Cmp.Nos.14841 & 14842 of 2018, dt.22.02.2021
KRISHNAN RAMASAMY, J.
klt
C.R.P (PD).Nos.2403 & 2404 of 2018
and
Cmp.Nos.14841 & 14842 of 2018
22.02.2021
https://www.mhc.tn.gov.in/judis/
