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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

Even in cases where an order is made by the court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dismissed if the thing is not done within the time fixed, the court has jurisdiction, if sufficient cause is made out, to extend the time even when the application for extension of time is made after the expiry of the time fixed.

It is not the application for grant of further time, whether made before or after the expiry of the time granted which confers jurisdiction on the court. The court possesses the jurisdiction under S. 148, C.P.C. to enlarge the time and the application merely invokes that jurisdiction.

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Section 148, C.P.C. provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Various situations can be envisaged where a party to the proceeding is prevented by circumstances beyond his control from doing the required act within the fixed period.

In Mahanth Ram Das v. Ganga Das, the Court observed:

“The procedural orders though peremptory (conditional decrees apart) are in essence, in terrorem, so that dilatory litigants might put themselves in order to avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed.”

The Supreme Court further observed that section 148 clothes the Court with ample power to do justice to a litigant if sufficient cause is made out for extension and that an order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired.

The Court is empowered to do justice to a litigant if sufficient cause is made out for extension and that an order extending time, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired.

Though the Civil Procedure Code by itself does not apply to the proceedings under the Income-Tax Act, we see no reason why a principle of procedure evolved for doing justice to a party to the proceeding cannot be called in aid to while interpreting a procedural provision contained in the Act.

Section 148 of the Code provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

The Supreme Court while dealing with the power of the Court under section 148 observed in the case of Mahanth Ram Das v. Ganga Das:

“The procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, estop a Court from taking note, of events and circumstances which happen within the time fixed.”

The Supreme Court further observed that section 148 clothes the Court with ample power to do justice to a litigant if sufficient cause is made out for extension and that an order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired.5

While depositing the full amount of purchase money together with the costs (Rs. 17,936) within the time fixed by court, only a very small fraction of the amount (25 paise) was deposited beyond time and the delay had been condoned by the executing court.

The Supreme Court held that in the circumstances delay in depositing occurred due to bona fide mistake on the part of the appellant and was condonable in exercise of discretionary power under S. 148. The first executing appellate court was not justified in dismissing the execution proceedings on the ground of delay.

An application for dispensing with the filing of certified copy of the impugned order of the lower appellate court was filed with the memorandum j of appeal. The High Court while admitting the appeal granted time to the appellant to file the certified copy “as soon as it is available”.

The certified copy was filed in court seven days after obtaining the same. It was held by the Supreme Court that the High Court was not justified in dismissing the appeal on the ground of delay in filing the certified copy, without going into its merits. The delay was condonable in exercise of its discretionary power under S. 5 of the Limitation Act, 1963.

Where in an appeal arising out of an application under Order XXI, Rule 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 in rare cases to prevent manifest injustice. True the court would not re-write a contract between the parties but the court would relieve against a forfeiture clause; and where the contract of the parties has merged in the order of the Court, the Court’s freedom to act to further the ends of justice would surely not stand curtailed.

In a suit for specific performance of a contract of sale, a decree was passed with a condition that the plaintiff should deposit a certain amount towards the sale price within one month. An application was filed by the plaintiff before the expiry of one month, praying for extension of the period to deposit the amount.

The application came up for hearing after the expiry of the specified period. The subordinate court rejected the application on the ground that it had no jurisdiction to entertain the same. The High Court in civil revision held that as the period specified in the decree had not expired on the date when the application was filed, the court had jurisdiction to entertain the application for extension of time.

The fact that the application was heard after the expiry of the period specified in the decree would be of no moment. Any order passed on the said application even after the time fixed by the original judgment, would operate from the date of expiry of the period originally granted.

Where a decree was passed by the Court for possession of property and the decree-holder was directed to deposit a certain amount into court within a month, but the decree did not say that on failure to do so, the suit should stand dismissed, the time fixed cannot be intended to be final. The court retains control over the proceedings and it has all the jurisdiction under S. 148 to enlarge the time.

148-A. Right to lodge a caveat:

(1) Where an application is expected to be made, or has been made in a suit or proceeding instituted, or about to be instituted, in a court, any person claiming a right to appear before the court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator), shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under sub-section (1).

(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.

With a view to preventing any party to obtain an ex parte order S. 148A empowers any person claiming a right to appeal before the court on the hearing of any application, which is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a court, to lodge a caveat in respect thereof.

Where a caveat has been lodged, the person by whom the caveat has been lodged, viz., the caveator, shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made.

Where after a caveat has been lodged, any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator. Where a notice or any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

The caveat shall not remain in force indefinitely and a time limit of ninety days has been fixed from the date on which it was lodged.

It is clear from the reading of Rule 11 (1) of Order XLI, C.R.C. that only the appellant or revisionist or his pleaders are required to be heard and not counsel for respondent or opposite party or his pleader at the stage of admission of appeal or revision, even when caveat has been filed. Section 148A provides hearing of any application to be moved by any person claiming a right to appear before the court on the hearing of such application.

It nowhere lays down that by filing a caveat a person is entitled to even oppose the admission of appeal or revision which are continuation of the suit. Memorandum of appeal and revision are different from other applications moved in them. By filing caveat under S. 148A the caveator or his counsel are not entitled to oppose admission of appeal or revision.

They are entitled only to be heard when any application is expected to be moved in appeal or revision. It is another case that notices have been issued to the respondents or opposite parties or their pleader and in that case the respondents or opposite parties or their pleader are entitled to oppose the admission but in no other case.

The court has to give an opportunity of hearing to caveators if it has to pass an order against them.

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