India: Upper Limit Fixed Under Section 148 CPC Cannot Take Away The Inherent Powers Of The Court

Last Updated: 31 May 2011
Article by Sonam Lhamu Bhutia and Vasundhara Kamath S

Section 148 of the Civil Procedure Code (hereinafter referred to as CPC) gives power to the Court for the enlargement of time fixed by it with regard to the doing of an act prescribed or allowed by the CPC. Following the Amendment of 1999, the time permitted to be enlarged was limited to thirty days. In Evoke Building Concepts Pvt Ltd v. Hindware Home Retail Pvt Ltd the Delhi High Court laid down that in case of amendment of Counter-claim, if the same was an integral part of the defence, a rigid interpretation of the Section was not to be taken and the Court could extend the time beyond thirty days.

The Defendant, Hindware Home Retail Pvt Ltd, had sought to amend its Counter-claim based on an alleged trademark registration, in the case filed against it by Evoke Building Concepts Pvt Ltd (Plaintiff). The same was granted by an Order of the Court. However, it had failed to place on record the amended Counter-claim and Written Statement even after the expiry of time, neither did it seek extension of time within the prescribed period. The Plaintiffs therefore sought for the striking-off of all the Defendant's pleadings as per Order VI Rule 18 of the CPC.

The main contention of the Plaintiff in this case was that the Court did not possess any powers to extend the period beyond thirty days under Section 148 CPC. In order to substantiate the same it relied on the judgment of the Delhi High Court in Glaxo Smithkline Consumer Healthcare v. Anchor Health & Beauty Care [CS (OS) 1908/2002 dated 13.07.2009] and that of the Supreme Court in Union of India v. Pramod Gupta (D) by LRs & Ors [AIR 2005 SC 3708].

The Plaintiff maintained that the Defendant was in the wrong since it had not even moved an application setting forth any reasons why the delay had to be condoned and hence prayed for the exclusion of the amendments in the records.

The Defendant reverted that though there was no separate application seeking to condone the delay, the reasons for non-filing of the amended Counter-claim within the prescribed time had been spelt out in the reply to the application. Furthermore, the averments made in the reply were also brought to the attention of the Court, wherein it had claimed that the delay in filing the amended Counter-claim had been due to pure inadvertence and was unintentional. It was claimed that the provisions enumerated in Order VI Rule 18 CPC were not mandatory and the delay could be condoned as per Section 148 CPC. The Defendant insisted that there was a need for the same by submitting that the Counter-claim was necessary to bring out the real questions before the parties. In addition it was argued that by virtue of Section 151 CPC, the Court could exercise its inherent powers to extend the time granted by it for the performance of any function, by either of the parties.

The decision of the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India [AIR 2005 SC 3353] was relied on where the question was whether, following the Amendment of the CPC in 1999, the Court had inherent powers to extend the time beyond thirty days. The Apex Court had noted that the Section had to be allowed to operate entirely, since its rigid operation would lead to absurdity. In instances where the act could not be completed within the given time due to factors beyond the control of the party, the Court would be well within its power to permit such an extension. The Court also provided a word of caution that the same was applicable to those circumstances only where the time was granted by the Court for the performance of an act and not where the time was stipulated by the Limitation Act.

The Defendants further alleged that the decisions relied on by the Plaintiffs to put their point across were inappropriate in the present matter. It was alleged that the Glaxo Smithkline case was inapplicable since the explanation for the delay had been rejected in that Order. The Pramod Gupta case was claimed to be inapplicable on the basis that the Court had no occasion to deal with Section 148 in that particular case.

After careful consideration of the submissions presented by both the parties, the Delhi High Court noted that the two applicable precedents viz., the Pramod Gupta case and the Salem Advocate Bar Association case had been delivered in close proximity by the Supreme Court. The Court highlighted the significance of the Counter-claim in the present case by stating that the same was premised upon an important aspect, which was an integral part of the defence in the case. By relying on the decision in the Salem Advocate Bar Association case, the Court found it fit to exercise its powers laid down in Section 148 and accordingly permitted the amended Counter-claim to be taken on record, subject to the payment of costs by the Defendant.

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