RABINDRA NATH HAZRA Vs. MANGALA BALA GHOSH

JUDGEMENT

(1.) This is a revisional application preferred against order No. 59 dated 24.3.87 and order No.60 dated 18.5.87 passed by the 3rd court of Munsif, Diamond Harbour in Title Suit No. 191 of 1987.

(2.) What happened in this case is that a suit for specific performance filed by the opposite party against the petitioner ended in a compromise whereby the opposite party was liable to pay a sum of Rs. 4000.00 to the lawyer of the petitioner within a stipulated period failing which the suit would be dismissed. The opposite party failed to deposit the amount and asked for extension of time on 14.9.82. The learned Munsif by his order No. 51 dated 30.9.82. rejected the petition. The opposite party moved this Court successfully. The Court below accordingly granted extension. It is contended that since thereafter also several extensions were granted by the Court. It is evident from the certified copy of the impugned order that the amount was Finally deposited on 18.5.87. It is urged on behalf of the petitioner that the extension granted by the Court below was without jurisdiction. It is submitted that the Court becomes functus officio after the expiry of the stipulated period. It is next contended that the Court cannot re-write the terms of the agreement extending the period of deposit. It is lastly argued that Sec. 148 Code Criminal Procedure applies only in pending suits. The petitioner relies upon the decisions in Bhutnath Das Vs. Sohodev Ch. Panha, 66 CWN 645 and Single Bench decision in Joynal Halder Vs. Khorsed Seikh, AIR 1982 Cal. 118 . The latter case has followed the decision of the earlier case.

(3.) There has since been a reported inter-parties decision (90 CWN 697). This court considered a large number of decisions including those referred to by the petitioner and finally found that the Court can grant extension of time. It is needless to discuss these decisions over again. In this connection. I feel tempted to refer to two decisions which have not been to need notice of by the Learned Judge. In Kamaluddin Vs. Chhotelal, AIR 1987 MP 39 , the Court relied upon Mahanta Ram Das' s case, AIR 1961 SC 882 , which laid down that the Court have undoubted jurisdiction to extend time in cases where Sec. 148 applies even after the expiry of the time originally fixed until and unless the Court has made any subsequent order finally disposing the proceeding. Therefore, until the Court passes the order of dismissal of the suit on account of failure to deposit the stipulated amount within the period agreed upon, the Court does not become functus officio. In Pariyakkal Vs. Dakshani, AIR 1983 SC 428 , the Supreme Court opined that it is true that the Court will not re-write contract between the parties but the court 1.66 CWN 645. would relieve against a forfeiture clause and where the contract of parties has merged in the order of the Court the Court's freedom to grant extension to further the ends of justice would surely not stand curtailed. These two decisions sufficiently answer the points canvassed before me. I like to add one more decision. In Muniamnal Vs. Sakkubai, AIR 1988 Mad. 421 . The Learned Chief Justice has very appropriately quoted with approval an observation of the Madhya Pradesh High Court in Bhudulal Kastural Vs. Chootelal, AIR 1977 MP 1 . The Full Bench of the Madhya Pradesh High court held that so long as the Court does not record a formal order disposing of the suit or the proceedings it continues to have the jurisdiction to extend the time granted to a party for performing an act notwithstanding the fact that time has already expired. It further held that the language of Sec. 148 Code Criminal Procedure is wide enough to vest the Court with undoubted jurisdiction to enlarge the time from time to time and this jurisdiction extends even to a case where period fixed had already expired. It is needless to multiply decisions to over-rule the contention of the petitioner. The decision in Mongala Ghosh Vs. Rabindra, 90 CWN 696 , i.e. between these parties is sufficient to reject the application of the petitioner.