Mahant Ram Das v Ganga Das (1961)

This is the standard authority on the court's power to enlarge time it has itself fixed peremptorily. It is set on the syllabus under inherent powers, and it carries a phrase worth remembering: such peremptory procedural orders are in essence in terrorem, so that dilatory litigants may put themselves in order — they are not like the law of the Medes and the Persians.

It also matters because it shows a High Court that felt real sympathy for a litigant and thought itself powerless to help him. The Supreme Court's answer is that it was not powerless at all: s. 148, s. 149 and s. 151 each gave it the power it needed.

The appellant sued in the court of the Subordinate Judge II, Gaya, for a declaration that he had been nominated Mahant of Moghal Juan Sangat by his Guru, Mahanth Gulab Das, by a registered deed dated 21 October 1944, and that he was therefore entitled to manage the Sangat and its offshoots. The suit was dismissed on 31 May 1947.

On appeal, the Patna High Court decided in his favour on 26 November 1951, but conditionally: he was to pay court-fee on the amended relief of possession, and the case was sent back to the court of first instance to value the properties and fix the fee. On the report being received, the High Court held the valuation to be Rs 12,178-4-0 with ad valorem court-fee payable on it, and directed that the office calculate the fee and inform counsel; that the plaintiff have three months from the date counsel was informed to pay the fee for the trial court and the High Court; that if the amount was not paid within that time the appeal would stand dismissed; and that if it was paid, the appeal would be allowed and the suit decreed.

The office gave intimation on 8 April 1954 that the deficit court-fee was Rs 1,987-8-0. The time was to expire on 8 July 1954. The appellant could not find the money. His advocate asked for the case to be mentioned before the Vacation Judge on 8 July so that an extension could be sought, but no Division Bench was sitting. On 8 July 1954 — within time — he filed an application asking to be allowed to pay Rs 1,400 immediately and the balance within a month.

That application came before a Division Bench, which dismissed it on the ground that by virtue of the earlier order the appeal had already stood dismissed because the amount had not been paid within the time given.

An application under s. 151 was rejected on 2 September 1954, the judges suggesting that the proper remedy was review. A further petition under s. 151 read with Order XLVII Rule 1 set out the reasons for the failure — that the appellant had been seriously ill, that he had tried to raise a loan but could not get sufficient money because the grain market had suddenly slumped — and offered to pay within such further time as the court might fix.

That review petition was dismissed on 27 September 1955. The judges held that the application did not fall within Order XLVII Rule 1; that ss. 148 and 149 applied only to cases not finally disposed of, so that time under them could be extended only before the final order was made; and that the request to extend time under inherent powers failed for the same reason. The judgment ended with the observation that the court had considerable sympathy for the petitioner but must not allow sympathy to affect judgment.

Where a court has peremptorily fixed a period for doing an act, and provided that on default a proceeding shall stand dismissed, is it powerless to enlarge that time?

No. The Supreme Court set aside the order of 13 July 1954 and the subsequent orders, set aside the dismissal of the appeal and of the suit, and granted the appellant two months from the date of its judgment to pay the deficit court-fee — being satisfied on the application and affidavit that sufficient cause for extension had been made out. It added the hope that after the lesson learnt the appellant would not ask the court, perhaps vainly, for further indulgence.

The application was within time. The application for extension was made before the time fixed had actually run out. It appears not to have been considered at all, because of the earlier peremptory order, and mainly because by the date the petition was heard the period had expired. That the application was filed in the vacation, when no Division Bench was sitting, should have been taken into account; the order, though passed after expiry, would have operated from 8 July 1954.

Sections 148 and 149 are wider than the High Court thought. Section 148 in terms allows extension of time even if the original period fixed has expired, and s. 149 is equally liberal. A fortiori those sections could be invoked where the time had not actually expired.

The character of a peremptory order. The judgment observes how undesirable it is to fix time peremptorily for a future happening in a way that leaves the court powerless to deal with events occurring in between; such orders often turn out to be inexpedient. Procedural orders of that kind, though peremptory — conditional decrees apart — are in essence in terrorem, so that dilatory litigants may put themselves in order and avoid delay. They do not completely estop a court from taking note of events and circumstances happening within the time fixed. The illustration given is memorable: it cannot be said that if the appellant had set out with the full money, in good time, and had been set upon and robbed by thieves the day before, he could not ask for extension or that the court was powerless to grant it.

Authority for moulding practice. Courts have moulded their practice to meet such a situation and have restored a suit or proceeding even though a final order had been passed; the court cites Lachmi Narain Marwari v Balmakund Marwari (1924). It adds, following Lord Phillimore, that it does not wish to place any impediment in the way of courts enforcing prompt obedience and avoiding delay.

Where the High Court went wrong. It could have exercised its powers first on 13 July 1954, when the petition filed within time was before it, and again under its inherent powers when the two petitions under s. 151 were filed. On either occasion ss. 148 and 149 would have clothed it with ample power to do justice to a litigant for whom it entertained considerable sympathy but to whose aid it erroneously felt unable to come.

For a question on s. 151, this case supplies the positive side of the doctrine: the inherent power is there to prevent the court's own procedural orders from working injustice. Pair it with the limiting principle from the s. 151 authorities — that inherent power is not to be exercised in conflict with an express provision or over substantive rights.

For a question on s. 148, quote the essential words: the court may in its discretion, from time to time, enlarge the period even though the period originally fixed or granted may have expired. That single phrase disposes of the High Court's whole reasoning.

The Supreme Court is careful to leave one situation open. If the High Court had considered the application and rejected it on the merits, other considerations might have arisen. The vice was not that the extension was refused; it was that the court thought it had no power to consider the request at all. In an answer, distinguish a refusal on merits from a refusal for want of power.