Roshan Lal Vs. Ashok Kumar - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - having not done so, in my view the trial court has failed to exercise discretion vested in it.v.k. jhanji, j.1. this revision petition has been directed against order dated 21.1.1993 whereby defence of the defendant (petitioner herein) has been ordered to be struck off.2. plaintiff (respondent herein) filed a suit for possession against the petitioner, alleging therein that despite the termination of tenancy, petitioner has not vacated the shop in dispute which was let out to him on a rent of rs. 500/- per month. petitioner appeared and alleged that the rate of rent is rs. 350/- per month including house-tax, and not rs. 530/- as has been alleged by the respondent. on an application filed by the respondent under order 15 rule 5, of the code of civil procedure, petitioner was allowed one month's time to pay the arrears of rent for the period from 1.6.1990 at the rate of rs. 350/- per month along with interest @ 9% p.a. he was directed to continue paying the monthly rent within a week from the date of its accrual. petitioner paid the arrears of rent from 1.6.1990 to january, 1992 and also the interest at the rate of 9% per annum. subsequently, the rent was not paid regularly, and on 18.1.1993 an application was filed by the petitioner for extension of time to pay the rent. in his application, he averred that since he had changed his counsel, he was not aware of second part of the order whereby he was directed to pay rent every month from the date of its accrual till the final decision of the suit. he, however, showed his willingness to deposit the rent there and then and also the future rent by the 7th of each month. in view of earlier order dated 21.1.1992, application was dismissed and in consequence thereof, defence of the petitioner was struck off. the order striking off the defence is being impugned in the present revision petition.3. notice of the petition was ordered to be given to the respondent-plaintiff, but despite service no one has appeared on his behalf.4. having heard the learned counsel for the petitioner, i am of the view that the order under revision cannot be sustained. petitioner in his application has specifically averred that he was not made aware by his counsel that he had to deposit rent every month. this statement of petitioner has not been accepted by the court on the ground that it cannot be believed that the petitioner was not aware of the order. in absence of any material that the petitioner was made aware of the order, the trial court ought to have accepted the prayer of the petitioner for extension of time to deposit the rent. section 148 of the code of civil procedure, provides that where time is gra ~ ted by the court for doing of any act prescribed or allowed by the code, it may be extended by the court from time to time. under this provision, the court has an ample power to enlarge any period for doing of any act, even though the period originally fixed or granted has expired. in the circumstances of this case, the trial court ought to have exercised its discretion by enlarging the time. having not done so, in my view the trial court has failed to exercise discretion vested in it.5. consequently, the revision petition is allowed and order under revision is set aside. the petitioner is allowed one month's time to deposit the entire arrears of rent, if not deposited till date. during the pendency of the suit, petitioner shall continue to deposit future rent by the 7th of each month, failing which his defence would be deemed to have been struck off. there shall, however, be no order as to costs.