P L D 1969 Dacca 171 (PLP)

"(2) Orders directing anything to be done by parties or their Pleaders shall be signed then and there by the parties or their Pleaders." The Note (1) thereto provides: ‑ "Note (1). While every endeavour should be made got the signature of the Pleader concerned to important orders, their attention is drawn to the fact that it is not the duty of the officers of the Court to call upon the Pleader to sign the orders issued, or to inform them of the nature of the orders passed. It is for the Pleader to be present at the proceedings make themselves acquainted with the order passed." In the case of Nasir Mia Maji alias Nasir Mia v. Probode Ranjan Paul (Civil Revision No. 868 of 1966) where a similar point was raised we dealt with the matter at length and held as follows: ‑ "this Court's order was rather made in terrorem with the object that the defendant after this sharp reminder would bring himself to order and perform his obligations with greater caution and diligence and avoid acting in a lethargic fashion. It was however not intended and in fact could not be expected that the defendant would adhere to standards and norms which are not otherwise normally attainable. The fact of the arrival of records in the trial Court cannot be ordinarily known to a party to a suit unless the came is brought to the notice of the party or his lawyer. . ..It therefore seem to us that in construing an order of the High Court wherein a party has been asked to perform a duty within a fixed period of time to be calculated from the date of the arrival of the record in the trial Court, it is necessary that such date should be communicated or made known to the party concerned. It is only from the date of knowledge of that party, or the date when such knowledge would have been derived, had the party exercised ordinary care and diligence in the matter, that such a period begins to run. To hold otherwise, in our opinion, would be extremely unreasonable and will be contrary to the principles of justice. This view is clearly based on a reading of Rule 466 (2) of the High Court Civil Rules and Orders." This view of ours also finds support in another earlier decision of this Court in the case of Mohammad Ramzan v. Fazlul Huq (P L D 1963 Dacca 987). It was that argued on behalf of the petitioner that the rules contained in the High Court Civil Rules and Orders have no statutory force and as such the provision contained therein can not be called in aid in condoning the delay in putting the deficit court‑fees. The impact and applicability of these rules have now been set at rest by a decision of our Supreme Court in the case of the Hanover Fire Insurance Company v. Messrs Muralidhar Banechand (P L D 1958 S C (Pak.) 138). Their Lordships observed "The directions in the orders and rules of practice are based only on this principle. In the judgment under appeal these rules and orders are ignored on the ground that such directions cannot override the provisions of the Code; but these directions are given by the learned Judges of the High Court in accordance with the provisions of the law concerned. It is true that such direction cannot override the provisions of law and they should be ignored if they are contrary to the provisions of law, but a High Court should at least examine them carefully before declaring them to be of no value when their purpose is to guide the subordinate Courts and they have been framed or adopted by the High Court itself. Had the learned Judges considered the rules and orders relevant to the subject under discussion they would have found that they do not override rule 5 but indicate how the discretion given under rule 5 of Order XXVI should be exercised." In the case of Central Bank of India Limited v. Ehram Jute Baling ((1962) 12 P L R Dacca 201) this Court observed as follows: ‑ "These Rules rather prescribe how to give effect to the provisions of the Code of Civil Procedure and do not contravene any provision of the Civil Procedure Code." From the above it would be obvious that the time will begin to run in the matter only from the date when the fact of arrival of the record in the Court below was known to the party in question or the same should have been known to that party if that party had exercised due care and caution in the matter. We have already stated that the record in this case was received in the trial Court on 24‑5‑66 and the same was made known to the plaintiff's lawyer on 31‑5‑66 but the entire deficit court‑fee was only deposited on 19‑7‑

66. As such it will appear that long after one month from the date of knowledge of the arrival of the record in the trial Court the deposit was made. This however the plaintiff says was due to the mistake on the part of the trial Court and as such the plaintiff claim, that the trial Court was right in granting the extension of time for making the deposit. In our opinion this contention of the plaintiffs‑opposite‑party is not based on sound principles. When the High Court fixes a time‑limit for performing an obligation or duty by a particular party, then that obligation or duty is to be discharged or performed within that period of time and the Court below has no jurisdiction in according an extension of that time beyond the period stated. When once that period has started to run the same must come to an end on the date stated in the order of the superior Court and the lower Court will not be permitted to grant enlargement of the period. This view of ours finds support in the case of Mohidden Kuppsi and another v. Mariam Kanni and others (12 I C 139). It was observed in that case as follows: ‑ "The general rule is that `specific directions' contained in the mandate of the appellate Court are beyond the judicial discretion of the lower Court and hence must be implicitly followed by the latter Court." In a recent decision of our Supreme Court in the case of Shah Wali v. Ghulam Din alias Gaman and another (P L D 1966 S C 983) this view appears to have been approved. This case was however concerning a claim for pre‑emption, which as observed by his Lordship the Chief Justice is a right "which is susceptible of being avoided for technical fault." In our view however the general principle indicated in this judgment concerning the power of the trial Court or appellate Court in granting extension of time under section 148, Civil Procedure Code after the time granted for the purpose has already expired is clearly applicable. S. A. Rahman, J., in the majority decision in the said case of Shah Wall observed: ‑ " I have reached the conclusion that for the respondent's default in making payment of the correct amount within the time fixed by the appellate decree, his suit stood dismissed end there was no question of extension of the time involved, either by the original Court or by the appellate Court thereafter, the appeal or revision from the appellate decree having already been dismissed." The learned Chief Justice in the same case observed: ‑ "There being in fact a short‑fall, the condition that the suit would stand dismissed on the 30th April 1962, if the amount fixed by the District Judge was not duly deposited, came into operation, and although it may be regretted that a just claim which had been duly established was thus brought to a nullity, yet the claim being one for pre‑emption, it is susceptible of being avoided for a technical fault." On the same point about applicability of section 148, Civil Procedure Code Hamoodur Rahman, J., also observed: ‑ "But this section, it is now well settled, does not apply where the period is fixed by a decree in a suit unless the decree is in the nature of a preliminary decree and the Court still retains seisin over the action." In the case of Banchi Dewan and others v. M. U. Talukder and others (A I R 1933 Cal. 83) Rankin, C. J. with whom C. C. Ghose, J. con curred, observed as follows: ‑ "It appears to me quite clear that the only right of the plain tiff to have a retrial was conditional upon his making the payment in time and that it was not necessary for the lower Court to exercise any sort of discretion in the matter. If the payment was not made within that time, the intention was that the suits should stand dismissed without further order. On that view it appears to me that the view taken by the learned Munsif was correct . . . . . . . However that may be, it does seem to me that on the lapse of two months the plaintiff' had lost his chance except possibly by proceeding to the Court which made the appellate decree and asking it in review for an extension of the time limited in the circumstances of the case." From this it will appear that the trial Court clearly had no jurisdiction to extend the time beyond the terminal date mentioned in the order of this Court. As such the order complained of is liable to be set aside: ‑‑ The Rule therefore as issued in Civil Revision Case No. 894 of 1966 is made absolute without any order as to costs. In the Civil Revision Case No. 895 (R) of 1966 the question that arises is whether under the facts and circumstances of this case, this Court can exercise its powers in granting the extension of time under sections 149 and 151, Civil Procedure Code read with section 28 of the Court Fees Act. In view of the facts and circumstances disclosed in the record, it is clear that the delay is due to the mistake of the Court in calculating the deficit court- fee and as soon as the mistake was detected by the Court, the plaintiff' deposited the deficit court‑fee. As such it is clear that action of the plaintiff was bona fade and that he was all along diligent. In the above cited case reported in P L D 1966 S C 983 his Lordship the Chief Justice observed as follows: ‑ "The matter may have been corrected by obtaining from the High Court an order supplementing its appellate decree of the 2nd February 1920, (sic) by fixing a date for deposit of the pre-emption money." The power of the High Court in granting extension of time in appropriate cases, particularly in cases of mistake by the Court below was not negatived in the decision delivered by S. A. Rahman, J. with whom Fazle‑Akbar, J. and Yaqub Ali, J. concur red. Hamoodur Rahman, J. in para. 40 of the judgment observed as follows: ‑ "That decree could only have been modified on an appeal from the decree itself to a competent Court under Order XLI, rule 31 of the Code of Civil Procedure and not under section 148 of the said Code." From a reading of this decision we are of the view that this Court is entitled to grant an extension of time by reviewing its earlier order even after the expiry of the original period if proper circumstances are established for that purpose. The Supreme Court has not observed anything in this decision, which can disentitle this Court from exercising this power in a case of a mistake committed by the lower Court in construing the order of this Court relating to the payment of court‑fee. In fact the decision reported in Nijabat Khan v. Nur Ahmed (P L D 1957 Lah. 92) was noticed and distinguished in the majority decision, but was not disapprov ed. The learned Advocate for the petitioner has argued that in view of the decision of the Supreme Court in the aforesaid case, even this Court is not entitled to grant any extension of time in this matter. This contention in our opinion is not sustainable as we have already pointed out. There are two other reasons for which we think that the decision of our Supreme Court in the case of Shah Wali is not applicable to the power of this Court in view of the facts and circumstances of this case. Firstly, the present case is a case where the delay took place because of mistake committed by the Court itself in calculating the court‑fee required to be paid as held by this Court. Their Lordships of the Supreme Court in the aforesaid case had not the occasion to consider a situation wherein delay was committed by a party due to the mistake of the Court. As such the powers of this Court under sections 149 and 151 of the Code of Civil Procedure, read with section 28 of the Court Fees Act was not considered. In a Full Bench decision of the Allahabad High Court in the case of Hari Ram v. Akbar Husain (I L R 29 All. 749) it was observed on the authority of section 28 of the Court Fees Act as follows: ‑ "When it has been discovered at any time that through mistake or inadvertence a plaint has been filed on an insuffi cient court‑fee stamp, any Judge who discovers the mistake can at any time and without any regard to limita tion have the proper court‑fee made up, and that when it is so made up, the plaint is valid as if it had been properly stamped when presented." Similar view was also taken by the Madras High Court, in the case of Sreepathi Balaiah and another v. Darsi Ramayya and another (A I R 1941 Mad. 706). In that case it was held as follows: ‑ "Unfortunately, that order wrongly set forth the nature of the actual order of the Court. But it seems to me that the Court must have inherent power to prevent a party from being damnified by the error of the Court's own officer. The respon dents did that which they should have done according to the order as embodied in the rough diary. The money was receiv ed without objection by the petitioners' Advocate who seems to have been under the same misapprehension owing to the terms recorded in the rough diary; and though, in my opinion, the District Judge had no power under section 148, Civil P. C., to reopen a closed matter and give an extension of time, he bad power under section 151, Civil P. C., to do that which was necessary for the ends of justice in order to set right the consequences of an unfortunate error committed by an officer of Court." In a full Bench Decision of the Lahore High Court in the case of Jagat Ram v. Kharaiti Ram (A I R 1938 Lah. 261) it was observed: ‑ " . . . it seems to me that the discretion conferred on the Court by section 149, Civil P. C., is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind." This observation was again approved in a subsequent decision of that Court in the case of Saeed Ahmed v. Karam Singh (A I R 1949 Lah. 121) wherein Cornelius, J. (as his Lordship then was), observed as hereunder: ‑ "Under section 148, the Court undoubtedly has discretion to enlarge time for the doing of any act allowed by the Code, even after expiry of the period originally fixed for the purpose . . . . . . . . . . " From the above discussion it will appear that sections 149 and 151, Civil Procedure Code read with section 28 of the Court- Fees Act granted adequate power to this Court to grant exten sion of time in putting in the proper court‑fee even though the period for depositing such court‑fee has expired, provided that the delay is due to the mistake of the Court which prevented the party in question in performing its duty. The second reason for holding that the embargo on the jurisdiction as mentioned in the case of Shah Wali is only applicable where the period is fixed by a final decree in the suit. Orders relating to the payment of court‑fee can hardly be treated on the same level as a final decree. Order VII, rule 13 clearly provides that the rejection of plaint on the ground of non‑pay ment of the court‑fee does not preclude the possibility of bringing a fresh suit in respect of the same cause of action. From this stand‑point also we are of the view that the decision of our Supreme Court in the case of Shah Wali does not stand in the way of exercising our power to extend time for the payment of the deficit court‑fee, though the time granted by this Court had already expired. In the Calcutta case cited by us the view of Rankin, C. J. as quoted by us also supports the view that this Court is entitled to exercise the power to grant an extension of time even when the original time granted by this Court has expired, if there was a sufficient cause which prevented the party in question in fulfilling his obligation. The view expressed in A I R 1961 S C 882 also supports this view. It is well settled that the party should not be penalised and deprived of his legal right if the same is entirely due to the oversight or error on the part of the Court. Maclean, C. J in the case of Lakhan Chunder Sen v. Madhusu an Sen (I L R 35 Cal. 209) observed as follows: ‑‑ "In this connection the language of Lord Eldon in Pultency v. Warrent, has some application: ‑ `If there be a principle, upon which Courts of justice ought to act without scruple, it is this, to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases'. This view was approved by the House of Lords in the East India Company v. Campion." In the case of Nijabat Khan v. Nur Ahmad and 7 others Kaikaus, J. observed "As regards the first reason, it is well‑established principle that no person can be prejudiced by an act of Court." It is, therefore, well‑established that no party should be made to suffer if it is due to the mistake of a Court. From the above it will appear that it is right and proper that the plaintiff should be relieved of the consequences of the delay committed by her in depositing the deficit court‑fee, which was paid beyond the period of time mentioned in the order of this Court in Civil Revision No. 737 of 1965. In the result, therefore, the time for payment of deficit court‑fee is extended up to 19‑7‑66 and the deposit of deficit court‑fees made on that day is accepted and the defect in the plaint on the score of insufficiency of court‑fee is rectified. The suo moto rule issued in Civil Revision No. 895 (R) of 1966 is therefore made absolute without any order as to costs. The records in this case are to be sent down expeditiously to trial Court for proceeding in with the suit in accordance with law. M. R. KHAN, J.‑I agree. A. H. Order accordingly.