Budhulal Kasturchand Vs. Chhotelal and ors. - Court Judgment

Shiv Dayal, C.J.

1. Appellant Budhulal's suit was dismissed because he did not deposit or pay, within the time fixed by the Court, adjournment costs imposed on him on the preceding date of hearing.

2. On the date of hearing, on which the trial Court dismissed the suit, the plaintiff had offered the amount of adjournment costs, which he had to pay. But the trial Court found itself powerless to extend time inasmuch as the plaintiff had been, directed on the preceding date to pay adjournment costs 'before the next date of hearing' and that order was peremptory: 'suit shall stand dismissed on non-payment of costs'.

3. The plaintiff appealed from the order of dismissal of his suit. The learned District Judge held that the appeal was not maintainable inasmuch as the order of the trial Court was not a decree. The plaintiff then preferred this second appeal. It was heard by a learned single Judge, who found that the law was not certain because the authorities were not uniform or consistent on the question whether the Court has power to extend time for depositing costs in spite of the order imposing costs being peremptory. Accordingly, he framed the following questions and directed that the case be placed before the Chief Justice for constituting a larger Bench:--

'(1) Whether it was necessary before the time could be extended underSections 148 and 149, Code of Civil Procedure, that an application should be filed before the period allowed by theCourt had run out and whether the Courtis clothed with ample powers under Section 151, C.P.C., to give redress in suchcases?

(2) Whether the words 'dismissed in default' also refer, to default committed in respect of adjournment costs'?'

4. When the Court fixes time and directs payment or costs or to perform any other act, but there is no compliance within time, the defaulting party may apply for extension of time at one of the following stages: (1) Before the time fixed has expired. (2) After the time fixed has expired but before the Court has passed an order disposing of the proceeding finally so far as that Court is concerned. (3) After such order (finally disposing of the proceeding) has :been passed.

5. In the first case, it is undoubted law that the Court has jurisdiction to extend the time initially granted by it. Sections 148 and 149 are abundantly clear and apply in terms. Before us, neither side had anything to say against this proposition, nor are we aware of any decision taking a contrary view. It is,therefore, clear beyond any manner of doubt that in such a case the Court has the power and discretion to enlarge the period fixed or granted by it.

6. The third case also presents no difficulty whatever. When the Court has finally disposed of the proceedings before it and it becomes functus officic, no application for extension of time cap be entertained by it, unless the order disposing of the proceedings is set aside and the proceedings are reopened by taking recourse to an appropriate remedy prescribed by the Code for reopening the proceedings.

7. There is considerable debate and controversy as regards the second case, i.e. where the time fixed by the Court has expired, but the Court has not yet passed a formal order finally disposing of the suit or proceeding. One view is that where the order is peremptory but it is not complied with until the expiry of the period fixed by the Court, it becomes functus officio and ceases to have jurisdiction to extend the time. This is one view.

8. The contrary view is that the Court has still the power to extend the time notwithstanding the earlier order being peremptory.

9. In Sewratan v. Kristo Mohan Shaw, ILR 48 Cal 902 at p. 905 = (AIR 1922 Cal 320 at p. 321) it was held that a further order was necessary by the Court before the suit came to an end and that on an application made before such order, it would be open to the Court, if; the circumstances before it justify such an order, to further extend time for making payment. We respectfully concur in that view.

10. In our opinion, the language of Section 148, C.P.C. 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 the period fixed has already expired. The wording of Section 148 is emphatic enough to support the view we take:.-

'Where any period is fixed or granted by the Court for doing any act prescribed or allowed by the Court, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.''

(Underlined by us)

Even if in the initial order the Court may have said that if costs are not paidbefore a certain date fixed for it, the suit shall stand dismissed, the Court does not lose seisin of the case after the expiry of such period notwithstanding a default. Such directions are in terrorein so that dilatory litigants put themselves in order The Court does not cease to have jurisdiction on the happening of the default There are no words in Section 148 to confine it to cases in which extension is sought before the period fixed by the Court expires, The Court does not cease to have jurisdiction until it makes an order finally disposing of the proceeding before it.

11. Contrary view was taken in Butasingh v. State, 1962 Jab LJ 268 = (AIR 1962 Madh Pra 205) by Tare J. (as he then was). Reliance was placed on observations of Roxburgh J, in Bajrang Lal v. Solaki Marwarini, AIR 1950 Cal 564. With great respect, we are unable to accept that view, having regard to the clear language of Section 148 and in the absence of any words in the section to restrict its scope to oases where an application has been made for extension of time before the expiry of the period fixed initially. The power being there, it is for the Court to exercise it in its discretion, one way or the other. If the Court is of opinion that a party has been grossly negligent or has been deliberately disobeying the order of the Court or the default is capricious, it has the undoubted power to reject the application for extension of time. But rejecting an application in exercise of the discretion is one thing and it is quite another to say that the Court ceases to have jurisdiction over the matter just because the period originally fixed has expired.

12. We have carefully gone through all the cases cited before us and those of which we are aware. We say with all respect and humility that we do not accept the contrary view. Question No. 2.

13. The second question, to which we have now to advert, is really this: whether the order dismissing a suit for non-payment of adjournment costs is appealable. There is divergence of views on this question also. The view taken in Chamarin v. Budhiyarin, 1975 MPLJ 32 = (AIR 1975 Madh Pra 74) and Gauhati Bank v. Baliram, AIR 1950 Assam 169, is that the word 'default' in Section 2(2) C.P.C, which defines 'decree' is comprehensive enough to include non-payment of costs or any other default, and it isnot restricted to default of appearance, Therefore, an order dismissing a suit for non-payment of costs is excluded from the definition of decree so that it is not appealable. Contrary view has been taken in Abbas Sujjat Ali v. Raza Azamshah, AIR 1941 Nag 223 and Radhabai v. Purnibai, ILR (1943) Nag 813 = (AIR 1943 Nag 149). In the former case, the plaintiff had been given two opportunities to furnish further particulars but he did not comply with the order. Thereupon, the trial Court discharged the defendants. Mr. Justice Vivian Bose held that the order of dismissal amounted to a decree and hence an appeal lay from it. It was further observed that no fresh suit could be brought on the same cause of action. We respectfully concur in the latter view.

14. With respect, we are unable to subscribe to the view taken by the Assam High Court in Gauhati Bank v. Baliram, (AIR 1950 Assam 169) (supra). There, the decision in Radhabai's case (AIR 1943 Nag 149) (supra) has been criticised. We are clearly of the opinion that the view taken in Radhabai's case alone will be in harmony with the other provisions of the Code of Civil Procedure; otherwise, a party will be left without a remedy and an extraordinary attempt will have to be made to search for one remedy or the other. If the dismissal of a suit for non-payment of adjournment costs is to be included in the expression 'dismissal for default' within the meaning of Section 2(2), C.P.C. it will not be a decree so as to be appealable. Then the question will be : what is the remedy? Order 9, Rule 9 and Order 17, Rule 2, in terms, apply to non-appearance alone, and to no other default. This means that in the above case, the plaintiff would not be entitled to make an application under Order 9, Rule 9, or under Order 17, Rule 2, read with Order 9, Rule 9, as the case may be. Review can hardly be an adequate remedy because it can be on very limited and restricted grounds. There, the plaintiff has to show that either there was an error apparent on the face of the record or that he has been able to discover any new and important matter or evidence within the limitations contained in Order 47, Rule 1, C.P.C, In that proceeding it would not be open to the plaintiff to say that for a good cause he was unable to pay adjournment costs.

15. Pausing here for a moment, let us turn to Order 17, Rule 3. Wherethe plaintiff was granted time to pay adjournment costs, but he does not perform the act, the Court has power 'notwithstanding such default' to proceed to decide the suit forthwith. Here, the word 'default' necessarily refers to non-payment. Therefore, the dismissal of the suit for non-payment of costs will undoubtedly be within the purview of Order 17, Rule 3, and as such, it would be appealable. Unless the words 'dismissed in default' in Section 2(2) are restricted to dismissal for non-appearance, there will be anomaly and confusion and the two provisions would be conflicting.

16. It is now well settled that in construing a provision of a statute, the Court should not adopt a construction so as to make any part of the statute meaningless or ineffective. An attempt must always be made so as to reconcile the relevant provisions so that the remedy intended by the statute may be advanced. See Sirajul Haq v. Sunny Central Board of Waqf, 1959 SCR 1287 = (AIR 1959 SC 198). Their Lordships observed in Shri Venkatraman v. State of Mysore. 1958 SCR 895 = (AIR 1958 SC 255), that when in an enactment there are two provisions which cannot be reconciled with each other they should be so interpreted that if possible effect can be given to both. This is what is known as the rule of harmonious construction.

17. We are attaching different meanings to the word 'default' in Section 2(2) and in Order 17, Rule. 3, of the same Code. The context in which the word having different shades of meaning is used is of importance in determining the precise sense which fits in with the context as intended to be covered by the Legisature. See Deputy Chief Controller of Imports and Exports v. K. T. Kosalram, AIR 1971 SC 1283. Ordinarily the same meaning should be attached to the same word used in different parts of a statute but it is also a celebrated rule of interpretation of statutes that if sufficient reasons exist, the word can be construed in one part of an Act in a sense different from that in another part. Where a word admits of more senses than one, that sense has to be adopted which is harmonious with the context and promotes in the fullest manner the policy and object of the Legislature. In Halsbury's Laws of England, Third Edition, Vol. 36, page 394, (Para 593), it is stated thus:--

'They (words) should be construed in the light of their context rather thanin what may be either their strict etymological sense or their popular meaning apart from that context.'

It is stated in Maxwell on Interpretation of Statutes, 12th Edition at page 278 thus:--

'It has been justly remarked that when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act.'

However, in the same treatise, the further statement is:--

'This presumption as to identical meaning is, however, not of much weight. The same word may be used in different senses in the same statute and even in the same section, especially in a consolidating statute where the word derives from two earlier enactments.'

(Page 279) It is said in Craies:--

'The presumption that the same words are used in the same meaning is however very slight and it is proper 'if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act.'

Venkatarama Ayyar, J., made succinct observations in S. V. Parulekar v. D. M. Thana, AIR 1957 SC 23. Referring to the rule of construction, he observed that it is, at all events, reasonable to presume that, the same meaning is implied by the use of the same expression in every part of an Act, He said that this rule of construction is well settled, but that is only one element in deciding what the true import of the enactment is, to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute. In Anand Nivas Pvt. Ltd. v. Anandji Kalyanji, AIR 1965 SC 414, it was held by reference to the expression 'tenant' that having regard to the plurality of its meaning, the sense in which the expression is used in different sections, and even clauses, must be ascertained from the context of the scheme oi an Act, the language of the provision and the object intended to be served thereby. In Sheikh Gulfan v. Sanat Kumar, AIR 1965 SC 1839, Gajendragadkar C. J. 'speaking for the Court laid down thus:--

'Often enough, in interpreting a statutory provision, it becomes necessary tohave regard to the subject-matter of the statute and the object which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words, the context in which the words occur, the object of the statute in which the provision is included and the policy underlying the statute assume relevance and become material.'

See also Kanai Lal Sur v. Paramnidhi, 1958 SCR 360 = (AIR 1957 SC 907); V. F. & G. Insurance Co. v. Fraser & Ross, AIR 1960 SC 971; Shamrao v. D. M. Thana, 1956 SCR 644 = (AIR 1957 SC 23J and Aswini Kumar v. Arabinda Bose, 1953 SCR 1 = (AIR 1952 SC 369).

18. The following classic observations of Mr. Justice Vivian Bose in Sangram Singh v. Election Tribunal, AIR 1955 SC 425, have always to be borne in mind:--

'Now a Code of Procedure must be regarded as such. It is 'Procedure' something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.'

19. In Chamarin v. Budhiyarin, 1975 MPLJ 82 = (AIR 1975 Madh Pra 74), reliance was placed on Abdulla v. Ganesh Das, AIR 1933 PC 68. The principal question in that appeal was 'whether an application for execution of a decree is time-barred under the provisions of Article 182 (2), Schedule 1, Limitation Act, 1908'. We do not see any dictum or observation in that case, which applies to the question under consideration. Another case referred to is Batuk Nath v. Mt. Munni Dei, AIR 1914 PC 65. A certain observation of Lord Moulton is quoted but Batuk Nath's case also does not deal with this point. With respect it appears to us that the Division Bench really meant to cite Chandri Abdul Majid v. Jawahir Lal, AIR 1914 PC 66 because it was in that case that Lord Moulton spoke for the Court and not in Batuk Nath's case (supra).

20. Now, in Chandri Abdul Majid's case (AIR 1914 PC 66) (supra). a decree was passed for sale of mortgagedproperty. On April 8, 1893, the High Court of Allahabad dismissed the appeal and confirmed the decree 6f the subordinate Judge. The mortgagor obtained leave to appeal to the Privy Council, but on May 13, 1901, the 'appeal was dismissed for want of prosecution'. Thereafter, an application dated June 11, 1909, was made to the subordinate Judge for an order absolute to sell the mortgaged properties; in other words, for an order directing enforcement of the order nisi which had been confirmed by the decision of the High Court of Allahabad on April 8, 1893. Having stated these facts, their Lordships of the Privy Council observed as follows:--

'It is not necessary to go into the particulars of this application because their Lordships ere of opinion that any such application was barred by the statute of limitation......... The chief matterof argument before this Board was a contention that the decree which is sought to enforce had been constructively turned into a decree of His Majesty in Council and assigned to the date of the 13th May, 1901, by virtue of the dismissal of the appeal for want of prosecution on that date, and that therefore, the period of limitation was twelve years from the 13th May, 1901, by virtue of Article 180 of the Indian Limitation Act.'

This contention their Lordships rejected saying:--

'Their Lordships see no foundation for this contention, which appears to have been the basis of the decision of the Courts below. The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all,'

It can thus be clearly seen that the ratio of that case does not apply here. Where a party does not perform an act and because of the default the suit is dismissed, it is not the same thing as not prosecuting the suit and that expression applies to preliminary stages where a party is required to do something as 'conditions under which the appeal is open to him', to quote the words of the Privy Council.

21. It was an argument that no formal decree has been drawn up andwithout such 'formal expression' it cannot be appealable. This, in our opinion, presents no difficulty. If, in any case, a formal decree is not framed, the procedure to be adopted is that which has been laid down by the Supreme Court in Jagat Dhish Bhargava v. Jawaher Lal Bhargava, 1961-2 SCR 918 = (AIR 1961 SC 832. But that is a formal and technical matter. It is one thing to say that an appeal will not be competent so long as a decree is not formally drawn up, and quite another to say that the order is not appealable. It is one of the well established principles of statutes that as far as possible different provisions of the same statute should be so construed as to be in harmony with one another. Another sacred principle is, and which is equally settled, that the law should be so construed as will advance the remedy.

22. We are, therefore, of the view that an appeal lies from an order dismissing a suit for default of payment of costs.

23. We will answer the two questions, which arise for our legal opinion, thus:--

(1) So long as the Court does not record a formal order disposing of the suit or proceedings, it continues to have the jurisdiction to extend the time granted to a party for performing an act, notwithstanding it having already expired, (the only exception being a conditional decree).

(2) An order dismissing a suit for default in payment of costs is appealable as a decree. The word 'default' in Section 2(2) of the Code of Civil Procedure refers only to non-appearance of parties as specifically referred to in Order 9 and in Order 17, Rule 2, C.P.C. it does not include any other default. Obviously enough, the word 'default' in Order 17. Rule 3, C.P.C. is, having regard to its context, wide enough to apply to every default referred to in the earlier part of the Rule, it is permissible under the rules of interpretation of statutes that the same word occurring in an enactment in different sections can be construed to have different imports according to the context

24. Since the whole case has been referred to us, we have now to advert to its own facts. The plaintiff had sought an adjournment on the ground that his counsel from Bhopal could not come on that day. The defendant opposed the application for adjournment The trial Court allowed the, application for adjournment on the, plaintiff paying Rupees 100 as party's costs and Rs. 50 as party's Pleader's fee, as a condition precedent 'before the next date', and also; added that the suit shall stand dismissed on non-payment of costs. On the next date, which was fixed for hearing, that is, December 5, 1966, at first the plaintiff was not present, but when the case was again called on for hearing, he appeared and offered to pay the adjournment costs Rs. 150. The trial Court on a reconsideration of the matter, found that it had no power to extend the time. It was for the plaintiff to pay the adjournment costs 'before' that date.

25. Now, it cannot be denied that had the plaintiff paid the adjournment costs on December 4, 1966, it could not be said that he committed any default. It is undoubted law that the plaintiff had a right to pay adjournment costs even on the last date and if he had done so, he would not have incurred any penalty. Now, 4th December was a Sunday. Section 4 of the Limitation Act applies in terms to suits, appeals and applications. That section does not apply to other acts allowed to be done by law on a certain date or within a prescribed period. Such cases are governed by Section 10 of the General Clauses Act, but the latter is also restricted in its scope to acts or proceedings allowed by any Act or Regulation to be done on a certain day or within a prescribed period. However, the general principles underlying Section 4 of the Limitation Act or Section 10 of the General Clauses Act apply to cases where the act is to be done under an order of the Court by a particular date or within a particular period fixed by it, and such date falls or such period expires on a date when the Court is closed. The principles underlying Section 4 are 'Lex non cogit ad impossibilia' (the law does not compel a man to do that which he cannot possibly perform) and 'actus curiae nerninem gra-vabit' (the act of the Court shall prejudice no man). Therefore, what the plaintiff could and had the right to do on the 4th December (Sunday), he had also the right to do it on the reopening of the Court, i.e. on the 5th December. In that view, it cannot be said that the plaintiff did not comply with the order of the Court. The dismissal of the suit was, therefore, erroneous and illegal. It wouldbe merely a matter of technicality whether we set aside the order in exercise of appellate jurisdiction or in exercise of revisional jurisdiction suo motu. The error is obvious enough and the sooner it is corrected the better, in the interest of justice.

26. In the result, this appeal is allowed, The order of the trial Court dated December 5, 1966, whereby it dismissed the suit, is set aside. The case shall now go back to the trial Court for proceeding with the suit according to law, as if the suit had not been dismissed on December 5, 1966. In the circumstances, of the case, we direct that the parties shall bear their own costs incurred from December 5, 1966 till today.