G. RITE AND CO. Vs. CHANDRAKANT HARILAL SHAH

JUDGEMENT

(1.) These two appeals challenge two different orders passed by the learned Judge of the City Civil Court at Bombay in the proceeding of Suit No. 2936 of 1960.

(2.) THE plaintiff had filed the aforesaid suit against the defendants with a view to recover possession of the suit premises on the footing that the defendants, who were originally his licensees, were no longer entitled to occupy the premises after revocation of their licence. That suit was resisted by the defendants, hut the same eventually ended in an ex -parte decree for possession against them on March 22, 1968 and for the purpose of setting aside that ex -parte decree, they took out a Notice of Motion on March 25, 1968. That Notice of Motion was heard by the learned Judge of the City Civil Court on April 1, 1968 and he held that the defendants had shown sufficient cause for not remaining present on the day of hearing, but instead of straightway setting aside the ex -parte decrees passed against them, what he did was to direct these defendants to deposit Rs. 4,275 by way of rent and Rs. 45 by way of costs of the motion on or before April 22, 1968. His order provided that: On the defendants depositing Rs. 4,275/ - in Court and paying the costs of the Notice of Motion fixed at Rs. 45/ - on or before the 22nd April 1968, the Notice of Motion to be made absolute in terms of prayer (a). On the defendants failing to deposit the amount and paying the costs as stated above, the Notice of Motion to be dismissed with costs. Suit to come on board for hearing on 23rd April 1968 peremptorily before the learned Judge taking short causes. In pursuance of this order, the defendants did deposit Rs. 4,275 in Court on April 17, 1968, but somehow or other the small amount of costs was not deposited and the omission in that behalf was not noticed either by the defendants or by the plaintiff or even by the Court. The result was that the suit was placed for hearing before the learned Judge on July 19, 1968 and some evidence on the side of the plaintiff was recorded thereafter. While the evidence on the side of the plaintiff was being recorded on July 23, 1968, it was noticed that the amount of Rs. 45 by way of costs was not deposited by the defendants and as soon as that omission was brought to the notice of the learned Judge, the learned Judge held that the order of dismissal of the Notice of Motion became operative and he having become functus officio, it was not open to him to do anything in the matter. He, therefore, refused to record any further evidence in the suit. On July 25, 1968 the defendants took out another Notice of Motion with a view to obtain an extension of time from the Court for depositing the amount of Rs. 45, but that Notice of Motion was dismissed by the learned Judge on July 29, 1968, holding that he had no power to enlarge the time. Feeling aggrieved by that order, the defendants have filed A.O. No. 271 of 1968. They have also filed a separate appeal (A.O. No. 272 of 1968) with a view to challenge the earlier order of the learned Judge dated April 4, 1968 by which the payment of Rs. 4,275 and Rs. 45 by way of costs was made a condition precedent for restoration of the suit. Since these two appeals practically arise out of the same litigation and parties to both the appeals are the same, it has been found convenient to consolidate the same for being heard together. Both these matters shall accordingly be disposed of by this common judgment.

(3.) WHILE considering the rival contentions, it is necessary to notice the provisions of Sections 148 and 151 of the Code of Civil Procedure. Section 148 provides: 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, even though the period originally fixed or granted may have expired. Section 151 says: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make (such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The argument of Mr. Mody, founded on Section .148, was that the power to enlarge the time could be exercised by the Court below even after the period originally fixed for payment had expired. In ease this submission was riot accepted, reliance was placed on Section 151 and it was argued that under that section, at any rate, the inherent powers of the Court could properly he invoked in favour of the defendants, who had admittedly deposited before the due date a large sum of Es. 4,275 and in view of that deposit, it could hardly be suggested that they would deliberately avoid to deposit or pay a small amount of Rs. 45.