§@ IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR! l W1). U/A 227 No. g1 /2009 Singm enah 1] Manghan Das i ablani, Aged about 75 years, S/o. Bhuramal Hablani, PETITIONERS DEFENDANT 1 to 4 Prakashchand iHablani, S/o. Manghan Das Hablani, Alged about 43 years, Bheeshm Nara§an Hablani, Aged about 21 years, S/o. Erakashchand Hablani i Smt. Jaya Hablani, Aged about 38 years, W/o. Prakashchand Hablani ’All above resident of C/36, Vallabh Nagar, Raipur, District Raipur (CG) VERSUS {/K Suresh Kumar Meghani, S/o. Gurdasmal Meghani, Aged about 56 years, / Vinod Kumar Meghani, S/o. Gurdasmal Meghani, Aged about 45 years, 3] /Shankariai Meghani, S/o. Gurdasmal Meghani, Aged about 42 years, %1up Kumar Meghani, S/o. Gurdasmal Meghani, Aged about 39 years, All above R/o House N0. 14/376, near ShiV Temple, Vidya Nagar, Bilaspur (CG) Manish Kumar Meghani, S/o. Indralal Meghani, Aged about 37 years, 7W0 House N0. 14/376, near Shiv Temple, Vidya Nagar, Bilaspur (CG), Presently WO Abis Vizo, State California, (U.S.) Rajkuinari D/o. Gurdasmal Meghani, Aged about 49 years, R/o > Shahjahanabad, Bhopal, (M.P.) Champa Devi, D/o.Gurdasmal Meghani, Aged about 51 years, R/o behind Payal , Hotel, Pandari,‘ Raipur (CG) RESPONDENTS PLAINTIFFS ’1 z o @’ Mohini Devi, D/a). Gurdasmal Meghani, Aged about 53 years, WO Sitabardi, Nagpur, (M.H.) Indira Devi, D/o. Gurdasmal Meghani, Aged about 47 years, R/o Indrapuri, Indore (M.P. i 10] Raipur Develop ient Authority, Raipur, G.E’ Road, Raipur (CG) . . .respondent/defendant no.5 i 1 1] State of Chhattisgarh, through Collector, Raipur (CG) .. .respandent/defendant n0. 6 RIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION'OF INDIA \‘. ) W oQx ‘ g} i , HIGH COURT OF CHHATTISGARH AT BILASPUR W P (227) No 387 of 2609 WRIT I§ETITION UNDER ARTICLE 227 OF THE GONSTITUTION OF INDIA (Single Bench' Hon'ble Mr N K I Agarwal J ) Shrl Mane} Paranjpe, Advocate for petltloners Present : Shrl BP Sharma, Advocate for the respondent No 1 to 4 & 7 Shrl Vlnod Tekam, Panel Lawyer for the State Shr1 Devendra Patel Advocate for lj‘espondent No. 11. , ORAL ORDER E (Passed on 21.01 .201 1?) ”1. :T The Instant petltlon 1s dlrected agalnst the orders dated 14 11 2008 and 10 12 2008 passed by IXth Addltlonal D1str1ct V Iudge (FTC),‘Raipur,' in Civil Suit No. 2-A/2007. ‘ , ,2. 77 Facts in nutshell‘are that: the respondent No. 1 to 9/plaintiffs filed ‘a civil. suit for declaration and permanent injunction against the petitioners and respondent No, 10 & 11. On 08.08.08, the plaintiffs moved an application under Order 1 i I I R:ule 10 (2) read with Section 151 of CPC for impleading some , _ ’ v persons as_defendant‘s to whom it is stated that the petitioners f1 I .’ I ’ ' ' I I ‘ have sold the suit land. Vide order dated 31.10.2008, the trial J I " . ‘ court d1rected for Issuance of notice on the above apphcatlon to proposed defendants The tr1a1 court further passed preemptory ' . ”v; ii I. order d1rect1ng the plalntiffs to furnlsh correct description of I ‘ 4 ( 7‘ 3 such proposed defendants Within a period of 15 days falling x N M Pétitioners : Manghan Das Hablani & others ’ ‘ Versus Ré§pondents : I Suresh Kumar Meghani & others ‘ WhiCh their application will be deemed to be dismissed, and flxed the case on 14.1 1.08 for furnishing Such particulars of the i defendants On 14 11 08 a prayer has been made by the plalntiffs that they could not furnish the correct description of the proposed defendants as they were busy in election, and prayed for some more time for that purpose. The prayer was allowed by the trial: court and the case was fixed on 1()i.12.2008. As per order sheet \ dated 10.12.2008, the plaintiffs imoved an application under Section 151 of CPC. The defendants sought time to file reply ; and also to f11e copy of sale deed and on the request of both the parties, the ease was fixed on 06.01.09 for reply, argument and L for furnishing copy of sale deed; Shri‘ Manoj Paranjpe, learned counsel appearing for the petitioners would submlt that the trlal court has grossly erred 1n not dismissmg the application filed by the respondents in View f of its own order dated 31.10.08. He would further submit that once there is a preemptory order passed by the court, until and unless there is any application for extension of time supported With an affidav1t narratmg the suffic1ent cause, the trlal court is duty bound to follow the order and dismiss the application It 1s also Submitted by Shri Paranjpe that the trial court has grossly erred in directing the petitioners to produce theunknown sale deed, the description qfWhich is LalSo not known. 4 ’¥ On the other hand Shr1 BP Sharma, learned counsel appearlng for the respondent No 1 to 4 and 7 would subm1t that the application was not fmally dismissed by the trial court despite the preemptory order passed by it and timervwas extended on plaintiffs prayer Vide its order dated 14.11.08. By placing reliance upon the judgments of MP High Court in case of Budhulal Kasturchand V Chhotelal and others] and Kamaluddm (deceased by LRs) V Chhotelal (deceased by: LRs) he would subm1t that the tr1a1 court has not commltted' any illegality or irregularity warranting interference of‘thrs; L court. L : I have heard theicounsel appearing for the parties and perusedi the orders impugned. i, V It appears that the orders are pure procedural in nature. The L application 1s yet to be dec1ded by the tr1a1 court The d1rectlon to furnlsh complete descrlptlon of proposed defendants so that summons may be serVedupon them in tlme was w1th a View to avoid undue delay in the progress of the suit 0n the next day 1e on 14 11 08 tlme was extended and thus, the said appllcat1on tiled by the plalntlffs under Order 1 Rule 10 (2) of CPC was not finally dismlssed by the tr1a1 court. _ i Full Bench of MP High Court in case of Budhulal KasturChand I (Supra) while’considering preemptor'y‘ orders, has held in para 10 of its judgment as under :- l t :r ‘\\ 1rRi977i MPLI [’A1R1937m-39 . 12 A “10. ........Even if in the initial order the court may have said that if costs are not paid before a certain date flxed for it, the suit shall stand dismissed, the court does not lose seisin of the case after the expiry of such ‘period dotwithstanding a default. _ Such directionsare in terrorem 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 finallyndiisposing of the proceeding before it.” 3 Further, Single Bench ' of MP: High Court in \case of Kamaluddin (deceased by LRs) i(Supra) , has held in para 5 & 6 t dgment as under : of is ju “5. Section ‘ 148, CPC which deals with enlargement to'time, is being reproduced below: “148; Enlargement of time—Where any period is fixed or granted by the Court for the doing of any act prescribed orallowed by this Code, the , Court may, in its discretion, from time to time, ’ enlarge such period l[not exceeding, thirty days in total], even though the period originally fixed or granted may have expired.” The law on the point has been finally settled by the Supreme Court in the case of Mahanth Ram Das; AIR 1961VSC 882. According to Mahanth Ram ‘Das’s case (Supra) the Courts have undoubted jurisdiction to eXtend time in cases where S. 148 l, applies even after the eXpiry of the time originally i fixed, until andrunless the court has. made any 1 subsequent order ' finally disposing of the i proceeding and, that when S. 148 in terms does not apply, the Court may give relief inproper cases‘ under S. 7151,, CPC,‘ provided, however, the peremptorty order relating to the condition is proceduraland not connected With any substantive ' matter inuthe ‘Suit, appeal or application about which judgmentgor final order has been passed by I the "court asfiin a conditional decree. In a ‘ subsequent case, the Supreme Court has confirmed i thls Vlew m the case of Perlyakkal AIR 1983 SC 428 “Where in an ap eal arising out of an, application under O 21 R. 90, the parties entered into a compromise and invited the‘court to make an‘order in terms of the compromise which the court did, the time for deposit stipulated by the parties became the time allowed by-the court and this gives the court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It‘would be granted 1n rare cases to prevent manifest Injustlce True the court would not rewrlte a contract between the partles but the court would relieve against a forfelture clause and Where the contract of the partles has merged 1n the order of the court the court s freedom to act to thither the ends ’of éiustice would» surely not stand curtailed.” This court also in a Full Bench judgment in the cased of Budhulak ’Kastu’r’chand, \AIR 1977 Madh Pra—l followed the same View as laid down by their Lordships ofthe Supreme Court.” 6. Even if in the initial order the court may have said that if the costs are not paid before a certain date fixed for it, the suit shall stand dismissed, the court does not lose seisin' of the case aher the expiry of such period notwithstanding the default. The contention of Shri Sahastrabuddhe deserves to be rejected on the ground that the duty of the court of law is to administer justice, sometimes loosening the rigors of the procedural law. It is the substantive justice which should be administered and not the procedural justice. Procedure is meant - to facilitate the way for theradministration of real ustice and not to defeat it. S. 148 in terms allows extension of time even if the original period fixed is expired and, similarly, S.l49 also is equally liberal in this respect. An order extending time for ayment of the costs, though passed after the expiry of the time fixed, could operate from the ate of which the time fixed had expired This court cannot also forget the maxrm lex non coglt d 1mposs1b111a (1 e the law does not compel a man ~ to do that which he cannot poss1b1y perform) The legal max1m actus curlae nemmem gravablt (1 e the act of the court shall prejudlce no man) can also not be lost sight of.” . j p ‘ d a ' (g. Here in the instant case, directions are in terrorem sov that, dilatorylitigants‘ put themselves in brder. The matter is purely procedural in‘ nature and not connected with any substantive matter in the suit. I am in respectiiii agreement oith the ratio laid down by the High Court of MP Vide its judglments as referred hereinabove and I hold that the trlal court was not Incompetent to extend t1rne v1de order Impugned 1e 14 11 08 Further order sheet ated, 10.12.08 reveals that onithe request of defendants the I time was granted to them for tiling copy of sale deed, there is no order passed hy the trial court directing the defendants to file any sale deed and the contention put-forth by Shri Paranjpe that the trial court has erred in directing the defendants to furnlsh sale deed 1s deV01d of mer1t i V , It 1s well settled prmc1ple of law that under Artlcle 227 of the Constitution the High Court does not issue a writ of certiorari Artlcle 227 of the Constitution vests the High Courts With a3 ' ower of supenntendence which is to be very sparingly exercised to keep tribunals and courts Within the bounds of their authority. Under Article 227, orders of both c1Vil and criminal ' courts can be examined only in very exceptional cases when manifest miscarriage of justicevhas been occasioned. Such power, however, is not to be exercised to correct a mistakeiof 1V ‘ fact and of law. I“ d p @K dismissed. No order asto costs. The petitionérs have failed to) point out any illegality or irregularity in the orders passed} by the trial court. The petition being devoid of substance is liable ‘to‘ be and is hereby. f\N *‘ scv- I \ N.K.Agama1 Judge i ,7 “AW u