NASIK MUNICIPAL CORP.versusM/S. R.M. BHANDARI & ANR.

                             [2016] 2 S.C.R. 174


A                       NASIK MUNICIPAL CORP.
                                      v.
                      M/S. R.M. BHANDARI & ANR.
                       (Civil Appeal No. 1856of2016)
B                           FEBRUARY 26, 2016
            [T. S. THAKUR, CJI AND R. BANUMATHI, J.)
           Code of Civil Procedure, 1908 - s. 1./8 - Enlargement of time
    by court - On facts, appellant-Corporation sought restoration of
C   execution petition-Special Darkhast, which was allowed by the High
    Court subject to the appellant depositing Rs. 25,0001- as cost -
    However, executing court rejected the application requesting the
    court to accept the cost of Rs.25,000/- and to restore Special
    Darkhast, on the ground that the time limit granted by the High
    Court was over and it had no power to extend the time granted by
D   the High Court - Thereajier, the appellant filed application u!s.
    1./8 seeking extension of time for depositing the cost of Rs. 25,0001
    - and the High Court dismissed the same - On appeal, held: In
    terms of s. 1./8, the court has discretion to extend the time, even if
    the time originally fixed or granted by the court has expired -
    Enlargement of time should not exceed thirty days in total - If the
E   act could not be performed within thirty days for the reasons beyond
    the control of the parties, the time beyond maximum thirty days can
    be extended u!s. 151 - High Court while declining to enlarge the
    time to deposit the cost neither took into consideration the sequence
    of dates and events stated by the corporation nor the explanation
F   offered by the corporation for the delay in depositing the amount -
    Time ought to be extended to deposit the cost - Appellant to deposit
    the cost ofRs.25, 0001- within the stipulated period and on the deposit,
    Special Darkhast would be restored- C.P.C. (Amendment) Act, 1999.
           Allowing the appeal, the Court
G          HELD: 1.1 A plain reading of s.148 of the Code of Civil
    Procedure, 1908 would show that when any period or time is
    granted by the court for doing any act, the court has the discretion
    from time to time to enlarge such period even if the time originally
    fixed or granted by the court has expired. Previously discretion
    was given to the court to enlarge the period fixed or granted by
H
                                      174
     NAS!K MUNICIPAL CORP. v. MIS. R.M. BHANDARI                     175


the court for any act prescribed or allowed by the Code. The A
C.P.C. (Amendment) Act, 1999 puts a limit of thirty days on the
enlargement of such period. The words "11ot exceedi11!( thirty r/([ys
i11 tot([r' have been inserted with a view to curtail procedural delay
caused by any party to the suit or proceeding. Enlargement of
time, whether one-time or phased, cannot exceed thirty days. If
                                                                       8
the act could not be performed within thirty days for the reasons
 beyond the control of the parties, th_e time beyond maximum thirty
days can be extended u/s. 151C.P.C.[Para11, 15) [179-F-G; 181-
E)
      1.2 The High Court declined to extend the time mainly on
the ground that the SLP filed by the respondents was dismissed        c
as withdrawn and that the respondents have lost their right to
challenge the order passed by the Court in the Writ Petition.
The High Court while declining to enlarge the time to deposit
the cost neither took into consideration the sequence of dates
and events stated by the appellant-corporation nor the explanation    D
offered by the appellant-corporation for the delay in depositing
the amount. This is not correct. [Para 12) [180-D-F)
      1.3 Coming to the finding of the High Court that the
respondents have Jost their right to challenge the order passed
by the High Court in the Writ Petition, it is true that SLP was
dismissed by this Court on the ground that cost was not deposited     E
by the appellant. But that was not of much significance. In the
application before the High Court, what was important was that
whether the appellant has made out a case for extension based
on which time can be extended. From the sequence of events,
the appellant explained the reasons for the delay in depositing       F
the cost and the time ought to be extended to deposit the cost.
[Para 161 [182-C-D]
      1.4 While extension of time is granted to the appellant to
deposit the cost, the respondents cannot be rendered. remediless
and the respondents are to be given liberty to have their first       G
appeal restored by making necessary application before the first
appellate court. [Para 171 [182-E-F]
      1.5 The impugned order is set aside. The appellant-
corporation would deposit the cost of Rs.25,000/- as directed by
the High Court in Writ Petition within the stipulated period and
on such deposit, Special Darkhast would be restored and the same      H
176             SUPREME COURT REPORTS                        [2016] 2 S.C.R.


A     would be proceeded with in accordance with law. [Para 18) (182-
      -F-G)
            Mhatarba Laxman Dongare (Dead) thr. L.Rs vs. Central
            Bank of India and Ors., 2005 (2) ALL. M.R. 742;
            Chinnamarkathian alias Muthu Gounder and Anr. v.
B           Ayyavoo alias Periana Gounder and Ors. 1982 (2) SCR
            146: (1982) 1 sec 159; Jogdhayan V. Babu Ram and
            Ors. 1983 (1) SCR 844:(1983) 1 SCC 26; Johri Singh
            v. Sukh Pal Singh and Ors. 1989 (1) Suppl. SCR
            17:(1989) 4 SCC 403; Ganesh Prasad Sah Kesari and
            Anr. v. Lakshmi Narayan Gupta 1985 (3) SCR
C           825:(1985) 3 SCC 53; D. V. Paul v. Manisha Lalwani
            2010 (10) SCR 425:(2010) 8 SCC 546; Salem
            Advocates Bar Association, TN vs. Union of India 2005
            (1) Suppl. SCR 929: (2005) 6 SCC 344 - referred to.
                              Case Law Reference
D          2005 (2) ALL. M.R. 74.2 referred to.     Paras
           1?82 (2) SCR 146        referred to.     Para 13
           1983 (1) SCR 844        referred to.     Para 14
           1989 (1) Suppl. SCR 17  referred to.     Para 14
           1?85 (3) SCR 825        referred to.     Para 14
 E         2010 (10) SCR 425       referred to.     Para 14
           2005 (1) Suppl. SCR 929 referred to.     Para 15
           CIVIL APPELLATE .JURISDICTION : Civil Appeal No. 1856
      of2016
            From the Judgment and Order dated 28.01.2011 in Civil
 F    Application No. 2305 of2010 in Writ Petition No. 1077 of20 I 0 passed
      by the High Court of Judicature of Bombay.
            Shivaji M. Jadhav, Murali Patil, Advs., for the Appellants.
            Aniruddha P. Mayee, A.Selvin Raja, Advs., for the Respondents.
            The Judgment of the Court was delivered by
 G
            R. BANUMATHI, J. I. Leave granted.
             2. The present appeal impugns the order of High Court of
      Judicature at Bombay dismissing Civil Application No.2305 of2010 in
      Writ Petition No. I077 of2010, filed by the appellant declining to extend
 H    the time in depositing the cost of Rs.25,000/- in terms of the order dated
     NASIK MUNICIPAL CORP. v. M/S. R.M. BHANDARI                          177
                  [R. BANUMATHI, J.]

03.05.2010 passed by the High Court in the said Writ Petition No. I 077   A
of2010. ·
       3. There has been a chequered history of litigation between the
parties for about two decades leading to filing of the present appeal. The
appellant being a municipal corporation had invited public tender for
construction and concreting of the area from Gadage Maharaj Bridge to B
Rokadoba Sandwa, to which the respondents emerged as successful
bidders .. The respondents were to commence the work on 23.01. f990
and the same was to be completed on or before 22. I 0.1990. However,
the respondents did not show any progress in the work and consequently
the appellant-corporation withdrew the work from the respondents and
allotted the same to Mis. N.H. Company Pvt. Ltd. for the purpose of C
gettillg the work completed, for which the appellant suffered an excess
amount ofRs.29, 76, 740/-.
        4, The appellant-corporation filed a suit being Special Civil Suit
No.339 of 1991 against the respondents seeking recovery of the said
amount before the Civil Judge (Senior Division), Nashik The respondents D
also preferred Special Civil Suit No.171 of 1991 againstthe appellant for
a declaration and recovery of amount before the Civil Judge (Senior
Division), Nashik. The court disposed of both the suits vide common
judgment dated 18. I 0.1994 thereby decreeing the suit of the appellant
and dismissed the suit ft led by the respondents. The court directed the · E
respondents to pay an amount ofRs.29,40,366/-to the appellant alongwith
interest at the rate of 18% per annum. Being aggrieved, the respondents
filed the appeal being First Appeal No.344 of 1995 challenging the decree
dated 18.10.1994 before the High Court of Bombay. Alongwith the
appeal, the respondents also filed Civil Application No.2330of1995 for
stayofthe decree. Vide order dated 12.06.1995, the High Court granted F
stay of the decree on condition that the respondents will deposit t)le
entire decretal amount before the lower court within eight weeks failing
which the stay shall stand vacated automatically. The respondents did
not deposit the decretal amount. Thereafter, the said First Appeal No.344
of 1995 was dismissed as withdrawn vide order dated 13.01.2009.            G
       5. The appellant had preferred an execution petition in Special
Darkhast No.49 of2002 for execution of the decree dated 18. I 0.1994.
The said execution petition was dismissed for default of the decree holder
vide order dated 29.07 .2006. The appellant then preferred C.M.A. No.155
of 2006 on 28.08.2006 seeking restoration of the execution petition. H
178              SUPREME COURT REPORTS                         [2016] 2 S.C.R.


A     Relying upon the judgment in Mhatarba Laxman Dongare (Dead) thr.
      L.Rs vs. Central Bank of India and Ors., reported in 2005 (2) ALL.
      M.R. 742, the executing court vide order dated 29.10.2007 declined to
      restore the execution petition-Special Darkhast No.49 of 2002. The
      appellant then preferred the second execution petition being Special
      Darkhast No.40 of2008 and the same was dismissed as being barred by
B
      limitation.
             6. The appellant challenged the said order of the executing court
      in Writ Petition No.6622 of2009. While the said writ petition was pending,
      the appellant also filed another Writ Petition No. I 077of2010 challenging
      the order dated 29.10.2007 passed by the executing court rejecting the
C     appellant's application for restoration of the earlier Special Darkhast
      No.49 of 2002. Both the writ petitions were disposed of by the High
      Court by the common judgment dated 03.05.2010 and the High Court
      allowed the writ petition No.1077of2010 and the order dated 29. I 0.2007
      passed by the executing court was set aside and Special Darkhast No.49
D     of 2002 was restored. However, the High Court imposed the cost of
      Rs.25,000/- upon the appellant as a condition precedent for restoration
      of the execution petition. Challenging the said order dated 03.05.2010,
      respondents preferred SLP (C) No.21975of2010 before this Court and
      the said SLP was dismissed as withdrawn vide order dated 16.08.2010.

 E           7. Pursuant to the order passed in W.P. No.1077/2010, the
      appellant-corporation filed applications before the executing court on
      30.06.2010 requesting the court to accept the cost of Rs.25,000/- and to
      restore Special Darkhast No.49 of 2002. Those applications were
      rejected by the executing court interalia stating that the time limit granted
      by the High Court was over on 28.06.2010 and that the court had no
 F    power to extend the time granted by the High Court. In these
      circumstances, the appellant preferred Civil Application No.2305of2010
      in Writ Petition No.1077 of2010 under Section 148 C.P.C. seeking
      extension of time for depositing the cost of Rs.25,000/- and the same
      was dismissed by the impugned order.
 G           8. Learned counsel for the appellant Mr. S.M. Jadhav submitted
      that the High Court erred in not taking note of the ·explanation given by
      the appellant for the delay in depositing the cost and the High Court was
      not justified in dismissing the application. It was contended that the
      High Court failed to consider that the right of the appellant for invoking
 H    the jurisdiction of the court under Section 148 C.P.C. is an independent
     NASIK MUNICIPAL CORP. v. MIS. R.M. BHANDARI                              I 79
                  [R. BANUMATHI, J.]

right and the same cannot be curtailed in view of the order passed by A
this Court in SLP (C) No.2 I 975 of 20 I 0. It was further submitted that .
the High Court failed to consider that withdrawal of the first appeal by
the respondent before the High Court was at their own risk and the
appellant's right to restore the execution petition cannot be curtailed on
that basis.
                                                                            B
       9. Per contra, learned counsel for the respondents Mr. Aniruddha
P. Mayee submitted that the appellant offered a vague explanation for
the delay in depositing the cost and the appellant cannot take advantage
of its own wrong. It was further contended that since the execution
petition was dismissed, the respondents have withdrawn the first appeal C
and by restoration of the execution petition at this distant point of time
the respondents.cannot be rendered remediless and the learned counsel
prayed for liberty to restore the first appeal.
       I 0. Upon consideration of the rival contentions, the point falling
for consideration is whether or not the court has the discretion to enlarge
the time for doing any act prescribed by the Code or allowed by the            D
Code.
      11. Section 148 C.P.C. provides for enlargement of the time by
the court. Section I 48 C.P.C. reads as under:
         S.148. Enlargement of time.- Where any period is_ fixed or            E
       granted by the Court forthe 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.
A plain reading of the above would show that when any period or time is
                                                                               F
granted by the court for doing any act, the court has the discretion from
time to time to enlarge such period even if the time originally fixed or
granted by the court has expired. Previously discretion was given to the
court to enlarge the period fixed or granted by the court for any act
prescribed or allowed by the Code. The C.P.C. (Amendment) Act,
1999 puts a limit of thirty days on the enlargement of such period. The        G
words "not exceeding thirty days in total' have been inserted with a
view to curtail procedural delay caused by any party to the suit or
proceeding. Enlargement·oftime, whether one-time or phased, cannot
exceed thirty days.
       12. Considering the re:ison for the delay in depositing the cost, as    H
180             SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A noticed earlier, the High Court allowed the Writ Petition No. I 077 of
  2010 vide order dated 03.05.2010 and restored the Special Darkhast
  No.49 of 2002 subject to the payment of cost of Rs. 25,000/- to the
  respondents within a period of eight weeks from the date of the order.
  The appellant stated that the copy of the order dated 03.05.20 I 0 was
B received in the office of its Legal Department on 12.05.20 I 0 and the
  Accounts Department gave its approval for the payment of cost on
  26.05.2010. The Legal Department thereafter prepared voucher/bill for
  the amount of Rs.25,000/- for being paid in the name of Civil Judge
  (Senior Division), Nashik and the same was approved on 03.06.20 I 0
  and after completing the procedural fonnalities, the Accounts Department
C issued the cheque on 15.06.201 O. lt is further averred that the applications
  were presented before the executing court to accept the cheque on
  30.06.2010 and the said applications were dismissed inreralia holding
  that the time limit granted by the High Court was over 011 28.06.2010
  and the executing court had no power to extend the time granted by the
D High Court. The executing court was correct in saying that it could not
  extend time for depositing the cost as the same had been stipulated by
  the High Court. The High Court has declined to extend the time mainly
  on the ground that the SLP(C) No.21975 of20 I 0 filed by the respondents
  was dismissed as withdrawn and that the respondents have lost their
  right to challenge the order passed by the Court in Writ Petition No.1077
E of2010 .. The High Court while declining to enlarge the time to deposit
  the cost neither took into consideration the sequence of dates and events
  stated by the appellant-corporation nor the explanation offered by the
  appellant-corporation for the delay in depositing the amount. This, in our
   view, is not correct.
 f           13. In Chinnamarkathian alias Muthu Gounder anrf Anr. v.
      Ayyavoo alias Periana Gounder and Ors., ( 1982) I SCC 159, this
      Court called in the principle of equity and held that the court has the
      jurisdiction to examine alteration or modification which may necessitate
      extension of time. In para ( 15), this Court held as under:-
 G          " .... It is a well accepted principle statutorily recognised in Section
            148 of the Code of Civil Procedure that where a period is fixed or
            granted by the court for doing 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 expire. If a court in exercise of the jurisdiction can grant
 H          time to do a thing, in the absence of a specific provision to the
     NASIK MUNICIPAL CORP. v. MIS. R.M. BHANDARI                             181
                  [R. BANUMATHI, J.)

      contrary curtailing, denying or withholding such jurisdiction, the A
      jurisdiction to grant time would inhere in its ambit the jurisdiction
      to extend time initially fixed by it. Passing a composite order would
      be acting in disregard of the jurisdi.ction in that while granting time
      simultaneously the court denies to itself the jurisdiction to extend
      time. The principle of equity is that when some circumstances B
      are to be taken Into account for fixing a length of time within
      which a certain action is to be taken, the court retains to itself the
      jurisdiction to re-examine the alteration or modification of
      circumstances which may necessitate extension of time. If the
      court by its own act denies itself the jurisdiction to do so, it would
       be denying to itself the jurisdiction which in the absence of a C
      negative provision, it undoubtedly enjoys .... "
        14. Reference may also be made to the decisions <;if this Court in
Jogdhayan v. Babu Ram and Ors., (1983) I SCC 26, Johri Singh"
Sukh Pql Singh and Ors., ( 1989) 4 SCC 403, Ganesh Prasad Sah
Kesari and Anr. v. Lakshmi Narayan Gupta, ( 1985) 3 SCC 53 and               D
D. 1'. Paul v. Manisha Lalwani, (20 I 0) 8 SCC 546.
       I5. In terms of Section 148 C.P.C. court has the discretion to
extend the time. The words "not exceeding thirty days in totaf' have
been inserted by the C.P.C. (Amendment) Act, 1999. Observing that if
the act could not be performed within thirty days for the reasons beyond E
the control of the parties, the time beyond maximum thirty days can be
extended under Section 151 C.P.C., in Salem Advocates Bar
Association, T.N vs. Union of India (2005) 6 SCC 344, this Court in
para (41) held as under:
       ~·4 J; The amendment made in Section 148 affects the power of F
       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 G
       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
                                                                             H
182                SUPREME COURT REPORTS                       (2016] 2 S.C.R.


A           maximum of 30 days, thus, can be permitted ifthe 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
B
            by the court for performance of an act prescribed or allowed by
            the court."
             16. Coming to the finding of the High Court that the respondents
      have lost their right to challenge the order passed by the High Court in
      Writ Petition No. I 077 of20 I 0, it is true that SLP (C) No.21975 of20 I 0
c     was dismissed by this Court on the ground that cost was not deposited
      by the appellant-corporation. But that was not of much significance. In
      the application before the High Court, what was important was that
      whether the appellant has made out a case for extension based on which
      time can be extended. From the sequence of events, in our opinion, the
D     appellant-corporation has explained the reasons forthe delay in depositing
      the cost aµd the time ought to lie extended to deposit the cost.
             17. We find substance in the submission of the respondents that
      since the execution petition was dismissed, the respondents have
      withdrawn the First Appeal No.344of1995 and the respondents cannot
 E    be deprived of the opportunity of maintaining a first appeal for challenging
      the decree passed against them. While extension of time is granted to
      the appellant to deposit the cost, the respondents cannot be rendered
      remediless and in our view, the respondents are to be given liberty to
      have their first appeal restored by making necessary application before
      the first appellate court.
 F
              18. In the result, the impugned order is set aside and this appeal is
      allowed. The appellant-corporation shall deposit the cost ofRs.25,000/-
      as directed by the High Court in Writ Petition No. I 077 of 2010 within a
      period of four weeks from today and on such deposit, Special Darkhast
      No.49 of 2002 shall stand restored and the same shall be proceeded
 G    with in accordance with law. The respondents are at liberty to have the
      first appeal filed by them being Appeal No.344of1995 restored by making
      an application. We make it clear that we have not expressed any opinion
      on the merits of the matter. In the facts and circumstances of the case,
      there is no order as to costs.
 H    Nidhi Jain                                                    Appeal allowed.