ABDUL GAFFAR Vs. SHAHID HUSSAIN

JUDGEMENT

(1.) THE applicants filed a suit seeking a decree for perpetual injunction restraining the defendants or their agents from making any construction over the 'sheikh Bao Grave yard' belonging to the applicants with the further prayer that the defendants be restrained from demolishing the graves of the ancestors of the applicants and from illegal and unauthorised interference with the use of the said grave-yard and that the illegal construction over the said grave yard be demolished and the original position be restored. THE defendants filed the written statement and denied the averments made in the plaint; but the case set up by defendants was that the applicants plaintiffs had no graveyard of their own and there was no grave-yard nor there was any boundary. THE applicants-plaintiffs filed an application under Order 6 Rule 17, CPC seeking amendment of the plaint. THE Munsiff Magistrate, Ajmer City (West) in this Civil Suit No. 230/1985, Abdul Gaffar vs. Shahid Hussain & Ors. rejected the application under Order 6 Rule 17, CPC through which the amendment was sought. Against the order dated 25. 11. 1987 passed by the Munsiff Magistrate, Ajmer City (West), the applicants preferred a revision petition under See 115, CPC, which was registered as S. B. Civil Revision Petition No. 910/1987. This revision petition was decided on 21. 03. 1990 and, taking note of the fact that in the main proceedings in the civil suit issues were yet to be framed, the order dated 25. 11. 1987 was set aside, the revision petition was accepted and the applicants-plaintiff were permitted to amend the suit. It was also ordered by the Single Bench of this Court in the order dated 21. 03. 1990, while deciding the revision petition, that the applicant-plaintiffs may file (he amended plaint as per the amendment application within a month and pay a sum of Rs. 500/- to the defendant within one month and, in case of failure to do so it will be presumed that the applicants-plaintiffs were not interested in amending the plaint and the application seeking amendment shall automatically stand rejected. THE revision petition was decided accordingly. 2 THE order dated 21. 03. 1990 is reproduced as under : ***** 3 According to this order dated 21. 03. 1990 the amended plaint was to be filed by 20. 04. 1990 and a sum of Rs. 500/- was also required to be paid to the defendants by 20. 04. 1990. However, the amended plaint was filed on 28. 05. 1990. " Counsel for the defendants accepted the copy of the amended plaint and cost. THE trial Court, however held that the application for amendment of the plaint stood rejected in terms of this Court's order dated 21. 03. 1990 because the applicants-plaintiffs had failed to file the amended plaint & to pay a sum of Rs. 500/- as cost within one month from the date of the peremptory order. THE trial Court recorded the order dated 5. 11. 1990, that the amended plaint cannot be taken on record. THE applicant again approached this Court by filing a miscellaneous application under Section 151, CPC in S. B. Civil Revision Petition No. 910/1987, seeking an amendment of the order dated 21sl March, 1990, stating therein that they had received no any information from their counsel about the order dated 21. 03. 1990 & that they had come to know of it on 14. 05. 1990 only through their counsel in the trial Court and thereafter they approached the counsel who had appeared in the revision petition on their behalf in this Court, but were told that the information had been sent and, in case the same has not been received by the applicants, he cannot be blamed. It has been further stated in this Misc. Application filed on 16. 11. 1990 before this Court that the applicants-plaintiffs are undeducted and poor and, had they come to know of the order passed by this Court they would have certainly complied with the same within time & that they came to know of it only through their counsel in the trial Court on the basis of the copy of this Court's order which was sent to the trial Court by the Registry of the High Court. It has also been submitted by the plaintiffs applicants that non-compliance of the order was not deliberate or wilful and they have been made to suffer without there being any fault on their part. On these facts, it was prayed that the order dated 21. 03. 1990 be ordered to be modified & the time for filing the amended plaint and the payment of the cost be extended. When this application dated 16th Nov. , 1990 came up before the Court on 10. 09. 1991, after hearing the counsel for both the sides and after considering the law laid down by this Court in Smt. Chhagani vs. Tara Kumari (1), and Gobardhan Singh vs. Barsati (2) one of us (Hon'ble Mehta, J.) who had heard the matter as Single Judge agreeing with the view taken by the All, High Court, referred this matter to the Larger Bench. Making a reference to the Larger Bench on 10. 09. 1991, the following question was formulated :- " Whether Sec. 148 read with sec. 151 CPC empowers the Court to extend the time after the expiry of the period originally fixed irrespective of the fact that the application for extension of time has been moved after the expiry of the period fixed under the order?"

(2.) THE order dated 10. 09. 1991 is reproduced as under: " Hon'ble D. L. Mehta, J. Mr. S. K. Keshote for the petitioner Mr. K. C. Sharma for the non-petitioner. Heard learned counsel for the parties. Learned counsel for the non-petitioner invited my attention to the judgement of this Court in the case of Smt. Chhagani vs. Tara Kumari 22 IIR (1972) Raj. page 1295. This Court held that time granted under a peremptory order should also be extended provided the application for extension of time was made before the expiry of the period fixed under the peremptory order meaning thereby that the Court has limited power of extending the period under section 148 CPC only in cases where the application has been filed within the period specified in the pre-emptory order. In this judgment, the provision of Section 148 CPC has been considered. Mr. Keshote cited before me the case of Gobardhan Singh V. Barsati (AIR 1972 All. page 246 ). In this case, the Full Bench of the Allahabad High Court has taken the view that Section 148 empowers the Court to extend the lime even after the expiry of period originally fixed irrespective of the fact that whether application for extension is made before or after the expiry of the period. Mr. Keshote has also cited some other cases. I agree with the view taken by the Allahabad High Court and I consider it proper to refer this matter to the larger bench to reconsider the decision given in the case of Ml. Chhagani (supra ). Hon'ble Chief Justice may be requested to constitute the larger bench for consideration of the judgment on the following point :- " Whether Sec. 148 read with Section 151, CPC empowers the Court to extend the time after the expiry of the period originally fixed irrespective of the fact that the application for extension of time has been moved after the expiry of the period fixed under the order?' Registrar is directed to place the file before the Hon'ble Chief Justice for constituting the Bench. THE proceedings in the trial Court shall remain stayed for a period of three months. It is expected that the Hon'ble Chief Justice will constitute the Bench within this period and matter be placed before the Bench so constituted for further orders. Sd/- D. L. Mehta J"

(3.) IT is, therefore, clear that when a peremptory order is passed by the Court, the Court passes a coercive order for the performance of a pre-existing duty in the nature of command for the obedience within a given time, failure of which is to entail a penal consquence. IT is clear that even if a peremptory order is final, it is sounless varied by a subsequent order on special circumstance being shown but for a further extension. The peremptory order is, therefore, capable of being varid in case special circumstances become the crux of the matter. In a gvin case,even if the special are shown for further extension. Thus it cannot be said once a peremptory order is passed it is untouchable and, once it is held that the time under an order can be further extended on special circumstances being shown such circumstances become the crux of the matter. In a given case, even if the special circumstances are shown after the expiry of the period fixed by the court for the purpose of exiention as well as to explain as to why an application seeking extension could not be made prior to the expiry of time, the time may be extended by the Court.