Legal Provisions for Enlargement of Time under Civil Procedure Code
What are distinctive features and characteristics of section 148 of CPC as compared to section 149 of CPC?
The provision for enlargement of time is assimilated under Section 148, CPC which articulates that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the CPC, the Court may, in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Whereas Section 149 deals with the power to make up the deficiency of court fee which elucidates in a translucent stipulation that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court- fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
Whether section 149 CPC is an exception to the command delineated under sections 4 & 6 of Court Fees Act, 1870?
It is visible from Section 149, CPC that it an exception to the command delineated under Sections 4 and 6 of the Court Fees Act, 1870. The exercise of discretion by the Court at any stage is, as a general rule, expected to be exercised in favour of the litigant on presenting plausible reasons which may include bona fide mistake in the calculation of the court fee; unavailability of the court fee stamps; or any other good cause or circumstances beyond control, for allowing time to make up the deficiency of court fee stamps on a case to case basis, and the said discretion can only be exercised where the Court is satisfied that sufficient grounds are made out for nonpayment of the court fee in the first instance. The provisions depicted under Order VII, Rule 11 and Section 149, CPC have to be read collectively.
What does term “functus officio” indicate?
The Latin maxim “functus officio” denotes that once the competent authority has finalized and accomplished the task for which he was appointed or engaged, his jurisdiction and authority is over and ended or, alternatively, that the jurisdiction of the competent authority is culminated once he has finalized and accomplished his task for which he was engaged. If the Court passes a valid order after providing an opportunity of hearing, it cannot reopen the case and its authority comes to an end and such orders cannot be altered save for where corrections need to be made due to some clerical or arithmetical error.
In what proceedings, the doctrine of “functus officio” is applicable and what would be consequences if this doctrine is not adhered to?
This doctrine is applicable to both judicial and quasi-judicial authorities, and, if it is not adhered to, it may result in turmoil for the litigating parties. If the authorities or the judges would be able to alter, change or modify orders capriciously and variably then resultantly will leave no certainty and firmness to any order or decision passed by any Court or authority. It is imperative for a sound judicial system to result in finality and certitude to the legal proceedings.
What is reason of incorporating section 148 CPC and whether discretion for extending time u/s 148 can be exercised arbitrarily, capriciously or whimsically?
The raison d'etre of incorporating Section 148 in the CPC is to deal with genuine cases for extension or enlargement of time in exigency on a case to case basis and despite lapse of time either granted by the Court or the CPC, the Court has been vested with the jurisdiction to extend time in suitable cases. No doubt the time allowed for doing a thing can be enlarged by the Court under Section 148, CPC, in its discretion from time to time, even though the period originally fixed or granted may have expired, but this discretion cannot be exercised arbitrarily, capriciously or whimsically, rather such discretion must be exercised and structured in a reasonable and judicious manner.
What type of construction of law ought to be avoided?
A construction which renders the statute or any of its sections or components redundant should be avoided and must be so construed so as to make it effective and operative.
What is effect of passing conditional order to the effect that in non- compliance of court order, suit/application shall stand dismissed?
Such conditional orders are against the spirit of the powers granted to the Court to meet exigencies and as a result, even in genuine cases with proper explanation and sufficient cause of non-compliance or some force majeure circumstances, the party will be non-suited unless the conditional order of dismissal of suit or rejection of plaint or memo of appeal is reviewed by the Court itself or is set aside by the higher fora.
Whether rejection of plaint for non-deposit of court fee precludes the plaintiff from presenting fresh plaint?
Under Order VII, Rule 13, CPC, the rejection of a plaint on any of the grounds hereinbefore mentioned (i.e. in Order VII) shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Meaning thereby that, as the plaint in this case was rejected due to non- payment of court fee and not for any other cause such as limitation, a pathway was opened to the petitioner/plaintiff to invoke the remedy provided under Order VII, Rule 13, CPC by presenting fresh plaint within the prescribed period of limitation.
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