1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.726 OF 2010 Tulshiram Nagnath Mate & Ors. .. Petitioners versus Dashrath Pandurang Gaikwad (Kaikadi) & Ors. .. Respondents Mrs.Gauri S. Shah h/f Mr.Surel S. Shah for the petitioner. Mr.A.A.Valsangkar a/w Pankaj Das for respondent Nos.1 to 3. CORAM : A.S.OKA, J. DATE : 4th February 2010. P.C: . Heard learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. This writ petition involves a very narrow controversy. If this writ petition remains pending in this Court, prejudice will be caused to the respondents and therefore it is taken up for final disposal at admission stage. 2. The petitioners are the appellants in an appeal pending in the District Court. The applications were made by the petitioners at Exhibits 37, 38 and 39 for production of additional evidence. By order dated 23rd September 2009 the said applications were allowed by the learned District Judge subject to the petitioners paying costs of Rs.500/- on each application which was made payable within a period of ten days from the date of the said order. The amount was not paid within the stipulated time. Therefore, the petitioners made an application on 2 2nd November 2009 at Exhibit 42 praying for extension of time to deposit the costs. In the said application it was contended by the petitioners that they became aware of order dated 23rd September 2009 on the date of making application i.e 2nd November 2009. The said application was opposed by the respondents by contending that the order dated 23rd September 2009 is self- operative and as a result of non-payment of costs within period stipulated in order dated 23rd September 2009, the applications at Exhibits 37, 38 and 39 stand rejected. The application at Exhibit 42 made by the petitioners was rejected by the learned District Judge by observing that the order dated 23rd September 2009 is a self-operative order and on failure of the petitioners to deposit costs within period of ten days, the said applications stood rejected and therefore the Court was powerless to extend the time for deposit of the costs. 3. The learned counsel appearing for the petitioner submitted that the roznama of the proceeding show that on 23rd September 2009 the appeal was kept on 2nd November 2009. He submitted that daily board of 23rd September 2009 will show that on 23rd September 2009, the petitioners were not aware that orders were passed on 23rd September 2009. He contended that in any case on 2nd November 2009, the appellate Court could have exercised the power under section 148 of the said Code. 4. The learned counsel appearing for the respondent submitted that the Appellate Court is right in holding that the order being self-operative, the applications made by the petitioners at Exhibits 37 to 39 stood rejected and 3 remedy, if any, available to the petitioners is of making fresh applications for the same reliefs. He submitted that the applications stood rejected on account of default of the petitioners. He pointed out that the petitioner have not challenged the order dated 23rd September 2009. He submitted that the Court was powerless to extend the period for deposit of costs as the order dated 23rd September 2009 is a self-operative order which itself provides for consequences of not depositing the costs amount within the stipulated time. He submitted that section 148 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) will have no application as the act of deposit of the costs cannot be termed as any act prescribed or allowed by the Code. He, therefore, submitted that no case for interference is made out. He also pointed out that when order dated 29th September 2009 was passed by the Appellate Court, the roznama records that the advocates appearing for the petitioners were present. He, therefore, submitted that the petitioners cannot plead ignorance about the order dated 23rd September 2009. 5. I have carefully considered the submissions. At the outset it must be stated that the learned District Judge has completely ignored well settled principle that procedure is handmaid of justice. I am constrained to observe that the approach adopted by the learned District Judge is a very hyper-technical approach. 6. The operative part of the order dated 23rd September 2009 reads thus: “All applications Ex.37,38 and 39 are hereby allowed subject to cost of Rs.500/- on each application payable within ten days from the date of order, in default, the application shall be treated as rejected.” 4 7. Time of ten days for deposit of the costs expired on 3rd October 2009. Though the application at Exhibit 42 bears the date of 3rd November 2009, the roznama shows that the said application was filed on 2nd November 2009. The reply to the said application has been filed on 2nd November 2009. As stated earlier, the time for deposit of the costs amount expired on 3rd October 2009. Assuming that section 148 of the said Code is applicable, the Court possessed power to extend time to deposit costs till 2nd November 2009. 8. The argument made before this Court is that section 148 of the said Code will have no application. Section 148 reads thus: “148. Enlargement of time.-Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, [not exceeding thirty days in total,] even though the period originally fixed or granted may have expired.” The said argument cannot be obviously accepted as the power to impose costs is conferred by section 35 of the said Code. Therefore, an act of payment of costs imposed by the Court is an act prescribed by the said Code and therefore section 148 of the said Code was squarely applicable. 9. It is true that order dated 23rd September 2009 is a self-operative order. However, the order does not take away the power of the Court to extend the period provided therein for deposit of the costs. The Court is not powerless to extend the period fixed by itself. 5 10. The application at Exhibit 42 was filed on 2nd November 2009. The application shows that the petitioners were willing to deposit the amount of costs immediately. The case made out in the application is that the petitioners became aware of the order dated 23rd September 2009 on the very day i.e on 2nd November 2009. The advocate for petitioners may be very much present on 23rd September 2009. It is not stated in the application that even the advocate was not aware of the order. What is stated is that the petitioner himself became aware of the order on 2nd November 2009. All these aspects have been completely glossed over by the learned District Judge. The learned District Judge was impressed by the fact that the order is self-operative. The said order does not divest the Court of powers under section 148 of the said Code. On 2nd November 2009, the Court could have exercised the power by permitting the petitioner to deposit the costs amount on the very day. 11. The effect of adopting such technical approach has to be also understood. There is a decree operating in favour of the respondents. It is obvious that in the appeal the execution decree must have been stayed. If such hyper-technical approach would not have been adopted, by this time even hearing of the appeal would have been over. Thus, by the impugned order, in a way the respondents have suffered as hearing of the appeal has been delayed. All this could have been avoided if the learned District Judge would have adopted a pragmatic or justice oriented approach. If application at Exhibit 42 would have been allowed, the petitioners would have deposited the amount of costs on the very day. Now the petitioners can deposit the amount only after a copy of this order becomes 6 available and therefore a reasonable time will have to be granted to the petitioners to pay costs. 12. Hence, the petition must succeed and I pass the following order: : O R D E R : (a) The impugned order dated 2nd November 2009 is quashed and set aside. (b) Application at Exhibit 42 is allowed and time for payment of costs fixed under order dated 23rd September 2009 is extended till 28th February 2010. If the amount of costs is not paid or deposited on or before the said date, the applications at Exhibits 37, 38 and 39 will stand rejected. (c) Writ petition is allowed in above terms. (A.S.OKA,J)