This Civil Revision Petition is filed against the order of return passed in IASR.No.338/2008 in IA.No.12/2007 in OS.No.132 of 2004 dated 18.3.2008 by the learned Principal District Court, Pudukkottai.
2. The petitioner herein is the defendant in the above said suit for specific performance of the contract of sale and the petitioner/defendant had filed a written statement denying the averments made in the plaint. The case had been posted on 10.8.2005 for trial and on that date, the defendant did not appear and hence, the suit was decreed exparte. The petitioner had filed a petition in IA.No.12/2007 to set aside the exparte decree passed against him with a delay of 41 days. The said application in IA.No.173/2005 had been allowed on payment of a cost of Rs.250/- to the respondent and the petitioner has complied with the said order and the delay has been condoned.
3. The petition to set aside the exparte decree in IA.No.12/2007 was resisted by the respondent, but however has made an endorsement to allow the said application on payment of heavy cost to the respondent. Accordingly, the learned District Judge, Pudukkottai has allowed the said application on payment of a cost of Rs.1000/- to the respondent on or before 20.8.2007 and the case was directed to be called on 21.8.2007. Since the cost was not paid, the petition was dismissed.
4. It is represented by the petitioner that he filed an application praying to grant time for payment of the cost of Rs.1000/- expressing his readiness to pay the cost even on the date of granting permission by the learned Judge. But, the said application had been returned by the learned District Judge stating that the conditional order has not been obeyed and hence, the application for extension of time is not maintainable.
5. The learned counsel for the petitioner herein relied on the decision of the Honourable Supreme Court rendered in the case of Salem Advocates Bar Association, Tamil Nadu Vs. Union of India [2005-6-SCC-344] wherein, the Honourable Supreme Court has held thus:-
"41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. The rigid operation of the Section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the Court for performance of an act prescribed or allowed by the Court."
6. From the above decision, it is clear that the extension of time for payment of cost beyond the maximum period of 30 days can be permitted by the court if the act was not performed within 30 days for the reasons beyond the control of the party.
7. In the case of Gowri Ammal Vs. Murugan [2006-2-MLJ-729], the Division Bench of this court has observed thus:-
"22. .. In the present case, the trial court simply dismissed the application , stating that it had no power. But, we have concluded that the court has got power to entertain an application under Sections 148 and 151 of CPC, to consider the merits of the matter for condoning the delay or for extending time. Admittedly, in this case, the application has been filed before the trial court under Section 148 and 151 of CPC."
8. The petitioner herein has filed the application under Section 151 of CPC praying for extension of time in regard to the payment of cost before the court below, of course, after the dead line for payment of cost in IA.No.12/2007. In view of the decisions of the Honourable Supreme Court rendered in the case of Salem Advocates Bar Association, Tamil Nadu Vs. Union of India (supra) this court is of the view that the principles laid down in the above said decision are squarely applicable to the facts of the present case on hand and that the trial court has got power to extend time for payment of costs and in that view of the matter, the order of return made by the court below entertaining a doubt on the maintainability of the petition cannot be sustained in the eye of law and in that perspective the impugned order is liable to be set aside.
9. In view of the discussions made above, in the interest of justice, this Civil Revision Petition is allowed and the impugned order of return made by the court below is hereby set aside. The court below is directed to take the petition on its file and pass orders, on merits and in accordance with law, as expeditiously as possible after giving opportunity to both the parties. No costs.
Srcm To:
The Principal District Judge, Pudukkottai