CRA/391/1986 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 391 of 1986 With CIVIL REVISION APPLICATION No. 178 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= = PRATAPSINH DANSINH - Applicant Versus NARANBHAI PUNJABHAI PRAJAPATI. - Respondent ========================================================= Appearance : MR KC SHAH for Applicant: 1, MR SR DIVETIA for Respondent: 1, 1.2.1,1.2.2 ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 31/07/2008 COMMON CAV JUDGMENT 1. In these Civil Revision Applications, the CRA/391/1986 2/16 JUDGMENT petitioner as well as the opponents is common. 2. The Civil Revision Application No. 391 of 1986 is preferred by the applicant challenging the judgment and order passed by the learned 2nd Extra Assistant Judge, Narol dismissing his Civil Revision Application No. 15 of 1984 and confirming the order passed by learned 2nd Joint Civil Judge (SD) in Execution Proceeding No. 175 of 1979 to proceed further with Darkhast for taking possession of the suit premises from judgment debtor i.e present applicant. 3. The Civil Revision Application No. 178 of 1991 is also preferred by the applicant challenging the order dated 19.9.1983 made below Exh. 26 in Civil Misc. Application No. 363 of 1980, where under, his prayer for extension of time for depositing the deficit arrears of rent and cost was rejected and application was disposed. The Executing Court therefore proceed further with the Darkhast Execution against the applicant for recovering of the possession of the suit premises. 4. Facts in brief deserve to be narrated as under to appreciate the controversy in both these revision applications. 5. The revisionist applicant – original defendant tenant and original plaintiffs hereinafter referred to as 'the plaintiff' and 'the CRA/391/1986 3/16 JUDGMENT defendant' for sake of convenience. The plaintiff filed Regular Civil Suit No. 186 of 1979 in the Court of learned Civil Judge (SD) Narol against the defendant tenant for decree of eviction on the ground of arrears of rent and mesne profit to the tune of Rs.736-30ps. Summons in the suit was served by affixing. On 4.9.1979, the plaintiff filed Exh. 8 application contending that the defendant had not appeared in spite of substituted service of summons and the suit was kept for ex-parte hearing and proper decree as deemed fit may be passed taking into consideration the affidavit filed. It deserved to be noted here that affidavit of plaintiff's son had been filed at Exh. 9. The concerned trial Court on 20.7.1979 decreed the suit in favour of plaintiff and ordered that the plaintiff is entitled to recover the vacant possession of the suit premises from the defendant together with Rs.721=30ps out of suit amount Rs.736=30ps together with mesne profits at the rate of Rs.19/- per month from the date of the suit till the actual vacant possession of the suit house was received by him and the cost of this suit. 6. The opponent filed Regular (Execution) Darkhast No. 175 of 1979 for recovery of possession and an amount of Rs.920=50ps. The defendant filed objection in the said execution proceedings and contended that the decree passed in Regular CRA/391/1986 4/16 JUDGMENT Civil Suit No. 186 of 1979 was nullity and was not binding on the defendant and plaintiff has obtained the decree by keeping the defendant in dark and by making wrong representation and the plaintiff was not entitled to take possession. The defendant also submitted an application Exh. 31 in the execution proceedings contending that the decree was not executable. The defendant has also contended in the objection that the restoration application No. 363 of 1980 was filed by him and decree passed in Regular Civil Suit No. 186 of 1979 did not exist. The learned trial Court was pleased to make an order in Civil Misc. Application No. 363 of 1980 on 17th June, 1982 setting aside the ex-parte decree on a condition that the defendant to pay up the arrears of rent due and cost of the suit within 15 days from the date of the order. In the said application i.e. C.M.A. No. 363 of 1980 the plaintiff filed an application Exh. 21 and stated that the defendant had deposited the amount, which was short by Rs.367=10ps and as he had not complied with the order dated 17th June, 1982, the suit could not be said to have been restored and the Court may permit the execution proceedings to go on. The defendant filed an application Exh. 26 for condonation of delay and seeking time to pay up the entire amount as ordered under order dated 17.6.1982 in C.M.A. No. 363 of 1980. He narrated the grounds for which the payment was not made. The ailment CRA/391/1986 5/16 JUDGMENT of his wife was pleaded as one of the grounds for not being in a position to pay up the amount in time. The Court on 19th September, 1983 passed an order recording that as the averments made in the application showed, the applicant had not paid or deposited the cost amount within 15 days period from 17th June, 1982, the application did not survive and it stood disposed of. This order was made on Exh. 26 application of the applicant on 19th September, 1983 and in view of that order, the plaintiff's application below Exh. 21 was allowed and the execution proceedings recommenced. By order dated 4th July, 1984 passed below Exh. 1 in Regular Civil Suit No. 175 of 1979, the trial Court and Executing Court issued Jangam warrant under Order 21 Rule 30, 43 of Civil Procedure Code and possession warrant under Order 21 Rule 35 of Code of Civil Procedure, on payment of process fees, which was made returnable on 12.7.1984. 7. The defendant – present revisionist applicant preferred Civil Revision Application No. 15 of 1984 in the Court of learned District Judge, Ahmedabad (Rural) at Narol and that by judgment and order dated 28.2.1986, the learned 2nd Extra Assistant Judge, Narol was pleased to dismiss the Civil Revision Application and confirm the order dtd 4.7.1984 passed below Exh. 21 in Execution Proceedings No. 175 of 1979 ordering the darkhast to proceed further for taking CRA/391/1986 6/16 JUDGMENT possession of the suit premises and to direct the applicant to pay the costs. Being aggrieved and dissatisfied with the said order of dismissal, the applicant has preferred the Civil Revision Application No. 391 of 1986. 8. The applicant also preferred Civil Revision Application No. 178 of 1991 challenging the order passed by learned Civil Judge (SD) on 19th September, 1983 below Exh. 26 in Civil Misc. Application No. 363 of 1980. It deserved to be noted that this application was filed on 18.3.1986, however, as there was a delay, it appears that delay condonation application being Civil Application No. 888 of 1986 in Civil Revision Application (Stamp) No. 3904 of 1986 had been filed for seeking condonation of 827 days. This Court (Coram: M.B.Shah, J.) (as he then was) on 14.8.1986 condoned the delay in filing Civil Revision Application and Civil Application No. 888 of 1986 was disposed of. Ordinarily, as the delay was condoned in the year 1986, the matter could have been registered in that very year, however, as record indicates that Civil Revision Application came to be registered in the year 1991. Be that as it may. 9. Thus, two Revision Applications filed by common applicant against common respondent from the proceedings and both were ordered to be heard together by this Court (Coram: J.M.Panchal, J.) CRA/391/1986 7/16 JUDGMENT (as he then was) on 25.8.1992. This order was made in CRA No. 178 of 1991. The interim relief granted earlier was ordered to be continued till further order. Thus, both the matters are heard together and are being disposed of by this common judgment. 10.Shri Shah, learned counsel appearing for the applicant submitted that the order passed by the learned Civil Judge (SD) in Civil Misc. Application No. 363 of 1980 and which is impugned in Civil Revision Application No. 179 of 1991, deserved to be quashed and set aside. Learned Judge ought to have appreciated the fact that Civil Court has a discretion to condone the delay and grant time for making up deficiency in deposit or to order for restoring the original suit by virtue of provisions of Section 148 of the Code of Civil Procedure. The concerned Court was duty bound to exercise its discretion in considering the case of the applicant either for condoning delay and grant him time for making up deficit and deposited amount and ought to have given reasoning for not accepting the prayer for delay condonation and permission to make up deficiency in the deposit. The order of the learned trial Court impugned in the CRA No. 178 of 1991 on the face of it, indicates that the learned trial Court has not exercised its discretion as the trail Court has merely observed that as the averments made in the CRA/391/1986 8/16 JUDGMENT application at Exh. 26, the applicant has not paid or deposited the cost amount within 15 days period from 17.6.1982, the present application would not survive and it stands disposed of. This order cannot be said to be an order passed after exercising the discretion vested in the Court under Section 148 of the Code of Civil Procedure. The application Exh. 26 contained various grounds and incidents indicating the delay occurred on the part of the applicant in making the deposit. This application, therefore was required to be decided on its own merits and duty was caste upon the concerned Court for recording its reasons for not granting time for making up the deficiency. Non-payment of cost in itself cannot be a ground for not extending the time. It appears that learned trial Court has erroneously proceeded on the footing that 15 days time has been over, the Court has no power or authority to extend the time limit, which is contrary to provisions of Section 148 of the Code of Civil Procedure. Shri Shah, learned counsel further submitted that if the court consider and accept the challenge to the order dated 19.9.1983 in this Civil Revision Application, then, as a logical consequences thereof, the execution proceedings wherein the order of the trial Court of issuing Jangam warrant on 4.7.1984, which has been confirmed by the revision Court in Revision Application No. 15 of 1984 on 28.2.1986, which is impugned in CRA/391/1986 9/16 JUDGMENT Civil Revision Application No. 391 of 1986, would also have to be quashed and set aside as the suit proceedings will have to be gone ahead considering that the suit was restored. 11.Shri Shah, learned counsel for the applicant has relied on the following authorities: (i) AIR 1961 SC 882 (V 48 C 141) in case of Mahant Ram Das Vs. Ganga Das. (ii)AIR 1988 Madras, 241 in case of Muniammal Vs. Sakkubai and another (iii)(1989) 4 SCC 403 in case of Johri Singh Vs. Sukh Pal Singh and others. (iv)AIR 1977 Madhya Pradesh 1 Full Bench in case of Budhulal Kasturchand Vs. Chhotelal and others. 12.Learned counsel for the respondent has submitted that plaintiff has all along been vigilant, whereas, the defendant has not been vigilant in defending the case. The defendant's explanation for not paying the entire amount does not seem to be reasonable and cogent so as to inspire confidence of the Court. He further submitted that the discretion is vested in the court for extending the time for complying with the conditional order and if the discretion is not exercised in favour of the defendant, who has not been vigilant in making the payment so as to have the suit restored, no irregularities could be said to have been committed so as to CRA/391/1986 10/16 JUDGMENT call for any interference under Section 115 of the Code of Civil Procedure. He submitted that the application deserves to be rejected. He further submitted that the revision court's reasoning in the impugned order in Civil Revision Application No. 391 of 1986 also go to show that the decree cannot be said to be non- executable on account of reasoning pressed into service by the defendant. The order of revision Court in holding that the execution proceedings were rightly ordered to be conclude, cannot be interfered with under present proceedings and therefore, the order impugned in this proceedings deserve to be sustainable and revision applications deserve to be dismissed. In the alternative, without prejudice to the aforesaid, Shri Divetia, submits that in case, Court is inclined to accept the Civil Revision Applications, then, looking to the passage of time, appropriate order be passed for expeditious hearing of the matters before the trial Court in the interest of justice. 13.Heard learned counsel for the parties. It is most expedient to examine the challenge to order dated 19.9.1983 passed by learned Joint Civil Judge (JD), Narol below Exh. 26 application in Misc. Civil Application No. 363 of 1980 as the same go to the route of the controversy and decision thereon will have bearing upon the order impugned in Civil Revision Application No. CRA/391/1986 11/16 JUDGMENT 391 of 1986. 14.The applicant-defendant had never been served originally in person. The suit was filed by the plaintiff for decree of eviction against defendant-tenant and summons was served by affixing. The plaintiff moved an application Exh. 8 praying the concerned Court for decreeing the suit in his favour based upon the affidavit of his son. As the defendant did not appear, though serve by affixing, the said application was allowed and the suit was decided on the basis of the affidavit itself. The suit was decreed in favour of the plaintiff by concerned trial Court vide order dated 20.9.1979 as it appears from the record. The defendant moved an application being Civil Misc. Application No. 363/80 for setting aside the ex-parte order dated 20.9.1979 passed in Regular Civil Suit No. 186 of 1979. The concerned trial Court on 17.6.1982 passed an order in Civil Misc. Application No. 363 of 1980 recording that the original decree was passed on the basis of affidavit of the plaintiff. The Court has also recorded that ordinarily the rule was that the decision on facts must be decided on evidence recorded in the Court as contemplated under Order 18 Rule 4 of the CPC. The Court has further recorded that in absence of any specific ground for taking evidence by affidavit as envisaged under Order 18 Rule 1, the taking of evidence is sin-a-qua none for deciding the CRA/391/1986 12/16 JUDGMENT matter. The Court further recorded that in rent possession cases, the substantive law calls for satisfaction of the court as to whether grounds for eviction of tenant exist or not. The Court has also recorded that hence decree, which was based on the affidavit, was without evidence and therefore, deserve to be set aside and the Court pass the order condoning delay and set aside the ex-parte decree subject to condition that applicant i.e defendant pay up all the arrears of rent, cost of the suit and that of application within 15 days thereof. This order was passed on 17th June, 1982. 15.The original plaintiff filed application in the proceedings of Civil Misc. Application No. 363 of 1980 being application Exh. 21 for vacating stay against the execution on the ground that defendant was to make payment of Rs.1847-10ps as per order dated 17.6.1982 and he had paid only Rs.1480-00 and thus, not deposited Rs.376=10ps and has not complied with the order and therefore, the stay be vacated and the execution proceeding No. 275 of 1979 be proceeded with. The defendant could not make the payment on account of serious ailment of his wife as he has pleaded in the application at Exh. 26. The defendant has also enlisted reasons for his inability to pay the amount in time and prayed for extension of time and sought condonation of delay. The concerned Court has passed an order CRA/391/1986 13/16 JUDGMENT on 19.9.1983, which could be set out here, read applications. As per the averments made in this application, the applicant has not paid or deposited the cost amount within 15 days period from the order dtd 17.6.1982. Hence, the application does not survive and stands disposed of. 16.This order is assailed in Civil Revision Application No. 178 of 1991. The court has not adverted to the grounds and reasons stated for defendant's inability to pay up the amount within the time limit fixed by the Court for restoring the suit and set aside the decree in question. The Court has proceeded on the footing that defendant did not deposit the amount of cost within 15 days limit from the date of the order i.e. 17.6.1982, the application did not survive and it was treated to have been disposed of. Section 148 of the Code of Civil Procedure thus confers power upon the Court to enlarge period for complying with such order. Section 148 of the Code of Civil Procedure deserves to be set out as under : “Section 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 CRA/391/1986 14/16 JUDGMENT such period, [not exceeding thirty days in total,] even though the period originally fixed or granted may have expired.” 17.Thus, the Court has power to enlarge the time limit on being satisfied that the order was not complied on account of sufficient cause. In the instant case, as could be seen from the order impugned, the court did not address itself to the ground narrated in the application Exh. 26, which prevented the defendant from depositing the amount as ordered. The Court has proceeded further as if non-payment of the amount within 15 days was sufficient to try the application being Civil Misc. Application No. 363 of 1980 incapacity of being survive. In other words, non-address itself to grounds and not recording its finding about its adequacy is not proper. In other words, the trial Court has not exercised the jurisdiction vested on it and therefore, Section 115 of the Code of Civil Procedure can rightly be invoked by the defendant. The Apex Court in case of Mahant Ram Das (Supra) has observed that Section 148 of the Code, in terms allows extension of time even if original period fixed, has expired. The Court has further observed that the orders are often passed in terrorem so that dilatory litigants might put themselves in order and avoid delay. In view of this, this Court is of the view that the said case with all four is applicable to the present CRA/391/1986 15/16 JUDGMENT case. 18.The decisions cited at bar by Shri Shah need not be elaborately discuss. Suffice it to say that principle is absolutely clear with regard to the applicability of Section 148 of the Code as the order in question viz. Order dated 17.6.1983 was though conditional, but not such as to render the Court helpless in light of Section 148. Section 148 does empower the Court to enlarge time as could be seen from the observations of the Apex Court in case of Mahant Ram Das (Supra). Therefore, this Court is of the considered view that learned trial Court has patently erred in not exercising its jurisdiction vested in it while rejecting the application vide impugned order. The Court is unable to accept the submission of Shri Divetia that order is in any way does not call for any interference. In fact, Exh. 26 application made by the defendant does go to show that there were some ground available for not depositing the amount within time and praying time to deposit the same. 19.In view of the question arise, it will not be proper at this stage to relegate the parties to once again to make submission on Exh. 26 applications and this would amount to delaying the matter further. Instead of that, it is most expedient that the trial Court be asked to decide the suit on its own merits within CRA/391/1986 16/16 JUDGMENT stipulated time of three months. In view of this, the Court is inclined to allow both the Civil Revision Applications. As the Revision Applications are allowed, the order of execution also will have to be required to be quashed and set aside. When the Court has ordered expeditious hearing of the suit within 3 months, the execution proceedings cannot go on as the decree itself is treated to have been set aside. Shri Shah submits that the applicant is depositing rent amount in the trial court regularly and therefore, the suit be ordered to be decided within 3 months. 20.In view of the aforesaid, both Civil Revision Applications are allowed and the orders impugned in both the Civil Revision Applications are hereby quashed and set aside and the trial Court is directed to decide the suit on merits as expeditiously as possible within 3 months from the receipt of this Order. The petitioner tenant shall keep paying the rent regularly till suit is decided finally. Rule made absolute in both the matters. There shall be no order as to costs. [S.R.BRAHMBHATT, J.] pallav