1 23.caw2063.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2063 OF 2011 IN WRIT PETITION NO. 2484 OF 2006 Sarojaben Mahendra Shah. ....Applicant. Vs. Kamlesh Harnamsingh Chowhan ....Respondent. Mr. Suhas Patil i/b. M/s. Navdeep Vora & Associates, Advocate for Applicant. Mr. Vivek Kantawala i/b. M/s. Vivek Kantawala & Co. Advocate for Respondent. CORAM:- GIRISH GODBOLE, J DATED:- OCTOBER 13, 2011 P.C. 1. Heard Mr. Patil, Advocate for the Applicant and Mr. Kantawala, Advocate for the Respondent. This Application seeks extension of time for deposit of arrears of compensation over and above the contractual rent as ordered by the learned Single Judge of this Court (A.S. Oka, J) by Order dated 16th November, 2010. A decree for possession under the Rent Act has been passed. The Writ Petition is admitted and the Decree for possession was stayed. By the aforesaid order dated 16/11/2010, the 2 23.caw2063.11 learned Judge had directed the Applicant to deposit with the Trial Court a sum of Rs. 5,000/- per month by way of reasonable compensation over and above the contractual rent from the date of decree for possession. For depositing the arrears payable till 30/11/2011, time was granted till 31st March, 2011 and for the further period from December, 2010 onwards the compensation was to be deposited on or before 15th day of every calender month. The Respondent Plaintiff was not allowed to withdraw the said amount but the amount is directed to be invested. 2. On this background, the Applicant has filed this Civil Application through her Constituted Attorney who appears to be near relative of the Applicant for extension of time on account of the fact that due to lack of funds she was unable to deposit the amount earlier. An affidavit in reply has been filed by the Respondent and the Application is strongly opposed by contending that there are 11 consecutive defaults committed by the Applicant and hence, the delay is neither explained nor justified. 3. At the time of hearing of the Application, the learned Advocate for the Applicant relied upon the Judgment of the Supreme Court in the case of D.V.Paul v/s. Manisha Lalwani (2010) 8 SCC 5461 and the 1 (2010) 8 SCC 546 3 23.caw2063.11 observations in paragraphs 31 and 32 thereof which reads thus : 31. In Salem Advocate Bar Association, T.N. v. Union of India, 2005 (6) SCC 344, this Court had an occasion to examine whether the restriction placed by the amendment of Section 148 on the power of the Court to grant extension of time beyond 30 days was reasonable. This Court held that a power that is inherent in the Court to pass orders that it considers necessary for meeting the ends of justice and preventing abuse of the process of the Court cannot be taken away by putting an upper limit on the period for which an extension can be granted. Extension beyond the maximum period of 30 days was accordingly held permissible in the following words: "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 the 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 4 23.caw2063.11 act prescribed or allowed by the court." 32. It is not in the light of the above decisions open to the respondent to argue that a Court can fix time for the doing of an act like making of a deposit, in the instant case, but has no jurisdiction to extend the said period even when a case for such extension is clearly made out. The power to fix the time for doing of an act must in our opinion carry with it the power to extend such period, depending upon whether the party in default makes out a case to the satisfaction of the Court who has fixed the time. There is nothing in Section 148 of the CPC or in any other provisions of the code to suggest that such a power of extension of time cannot be exercised in a case like the one at hand. The argument that the power to extend time cannot be exercised where the act in question is stipulated in a conditional decree has not impressed us. We see no reason to draw a distinction depending on whether the prayer for extension is in regard to a conditional order or a conditional decree. The heart of the matter is that where the Court has the power to fix time and that power is not regulated by any statutory limits, it has in appropriate cases the power to extend the time fixed by it. It is common ground that neither the CPC nor the provisions of M.P. Accommodation Control Act places any limitation on the power of the Court in case like the one in hand.” 4. He also relied upon the Judgment of the Learned Single Judge of this Court (S.B. Deshmukh, J) in the case of Yamunabai Pundalik Kachane vs. Vijaya Dnyandeo Ingale & ors. reported in 2008(1) Mh. L.J. 5182 to contend that the Court is vested with the power to enlarge the time beyond the period of 30 days under section 148 of the Code r/w section 158 of Code in appropriate cases subject to satisfaction of sufficient cause. 2 2008(1) Mh. L.J. 518 5 23.caw2063.11 5. On the other hand, Mr. Kantawala, Advocate for the Respondent vehemently opposed the Application. He relied on the Judgment of the learned Single Judge of this Court (N.A. Britto, J) in State Bank of India vs. Shri Laxmikant Vithal Palekar & ors. and submitted that the elasticity of the expression “sufficient cause” does not mean that it can be stretched to a breaking point. He further relied on the Judgment of the Supreme Court in the case of Salem Advocates Bar Association, Tamil Nadu vs. Union of India (2005) 6 SCC 344 = 2005(5) All M.R. (S.C.) 8763 and particularly on the observations made in paragraphs 45 to 47. He submitted that extension beyond maximum of 30 days can be permitted if the act could not be performed within 30 days for the reasons beyond the control of the party. 6. Mr. Kantawala also relied upon the Judgment of the Supreme Court in th case of Balwant Singh vs. Jagdish Singh & ors. AIR 2010 SC 30434 and particularly reliance was placed on the observations in paragraph-14 of the Judgment. It was contended that liberal construction of a statutory provision cannot result in injustice to the adversary and this is not a fit case for exercising a discretion. 3 (2005) 6 SCC 344 = 2005(5) All M.R. (S.C.) 876 4 AIR 2010 SC 3043 6 23.caw2063.11 7. I have carefully considered the rival contentions. In the present case, a decree for possession of suit premises which is Room No. C-11, 2nd Floor, Lalsingh Building, Lohar Chawl, Mumbai 400 002 has been passed. The Writ Petition has been admitted for final hearing which obviously indicates that this Court had found prima facie merits in the case of the Applicant/Petitioner. It is no doubt true that while continuing interim relief the Court had imposed a condition that the amount of Rs. 5,000/- over and above a contractual rent should be deposited. It is also true that this condition has not been complied with by the Petitioner. That is the reason why this Application for extension of time is filed. 8. It is pertinent to note that even if the amount was to be deposited the Respondent was not allowed to withdraw the said amount and in fact the amount was to be invested in a nationalised bank. Thus, the prejudice if any to the Respondent is essentially on account of loss of interest on the amount which was to be deposited earlier in case the Respondent ultimately succeeds in the Petition and the Decree for eviction is confirmed. Thus, this is not a case where some vested rights had accrued in favour of the Respondent which cannot be compensated in terms of 7 23.caw2063.11 money. 9. The reason given by the Applicant that she is not earning and she had to borrow funds from her relatives so as to make arrangement for arrears of compensation is a plausible explanation and nothing has been placed on record to show that the Applicant is financially so sound that she had more than sufficient liquid funds to deposit the amount every month. In my opinion, the power to extend time is available and the Judgment of the Supreme Court in the case of Salem Advocate Bar Association (supra) is very clear on this point. The subsequent judgment of the Supreme Court in the case of D.V. Paul (supra) lays down the principle to be followed in such a cases in paragraph 25 to 32. In a suit for eviction the power under section 148 in this context will have to be exercised. 10. Reliance placed by the learned Advocate for the Respondent on the Judgment in the case of State Bank of India (supra) will not be of much assistance since that is a case covered by section 5 of the Limitation Act, 1963 and while deciding the case of Salem Advocate Bar Association (supra) the Supreme Court has clearly stated that power under section 148 8 23.caw2063.11 is not a akin to power to condone delay and both operates in different fields. The Application is filed for requesting this Court to exercise its inherent power under section 151. Inherent power can be exercised with a view to ensure that on account of an error or on account of some delay the litigant should not suffer. The last Judgment relied upon by Mr. Kantawala in the case of Balwant Singh (supra) deals with a situation arising out of section 5 of the Limitation Act, 1963 and Order 22 of the Code. Though the observations in the said Judgment as pointed out by Mr. Kantawala may prima facie support his submission, one cannot lose site of the fact that in the same Judgment the Supreme Court has also held that the words “sufficient cause” in making application will have to be understood and applied in a reasonable, practical and liberal manner depending upon the facts and circumstances of the case and the type of the case. In my opinion, considering the fact that the Applicant is a lady having no source of income and the fact that it is stated that her husband is also retired and both are dependent upon their son; this is a fit case for exercising that power for extension of time. The prejudice caused to the Respondent will have to be compensated in terms of money firstly by awarding costs of this Application; secondly by directing that the Applicant shall also deposit an additional amount towards interest 9 23.caw2063.11 calculated at 8% per annum on the amount of installment for which the default was committed. 11. Hence I pass following order : (i) Civil Application is partly allowed. The time fixed by this Court in Order dated 16/11/2010 in Civil Application No. 2320 of 2010 in Writ Petition No. 2484 of 2006 is extended. The amount of Rs. 3,83,610/- deposited by the Applicant in this Court pursuant to the earlier order dated 23/9/2011 shall be invested in a nationalised bank earning maximum interest and the deposit shall be kept renewed till disposal of the Writ Petition or any further orders from this Court. (ii)In so far as the amount of Rs. 5,000/- plus contractual rent of Rs. 158.75 is concerned, the Applicant shall continue to deposit the same in the Trial Court i.e. Court of Small Causes, regularly. The deposit for the month of October, 2011 can be made till 15th November, 2011. (iii)In addition to the aforesaid amount, the Applicant shall also deposit interest calculated at the rate of 8% per annum from the date of first installment till August, 2011 and the amount should be deposited in 10 23.caw2063.11 the Court of Small Causes on or before 30th November, 2011 and even that amount will be invested in a nationalised bank earing maximum interest. (iv)The Applicant shall pay costs of this Application quantified at Rs. 2,500/- to the Respondent within a period of 6 weeks from today. (v)In case of default in compliance with the aforesaid direction, liberty is granted to the Respondent to file an application for vacating the interim relief. (GIRISH GODBOLE, J)