K.J. Sengupta, J.@mdashThis application has been taken out after disposal of an appeal by an order dated 18th August. 2011. The applicant who was appellant has prayed for modification of the aforesaid order by way of granting extension of time for making comprehensive representation in terms of the aforesaid order. By order dated 18th August, 2011 this Court had given following directions:-
Therefore, we direct, on the suggestion of the learned counsel Mr. Yadav. appearing for the Indian Oil Corporation. Executive Director of Indian Oil Corporation, Calcutta, to give a hearing to Mr. Bandopadhyay''s client against the decision of cancellation of his client''s candidature. In this regard Mr. Bandopadhyay''s client would be entitled to make comprehensive representation to the Executive Director of Indian Oil Corporation. Calcutta, within a week from date irrespective of receipt of the copy of this order....
...In the event no representation is made by Mr. Bandopadhyay''s client, the matter would be treated to be a closed chapter and in that case the choice of third party, namely. Tapan Biswas has to be accepted and follow up action may be taken.
2. The gist of the grounds stated for obtaining extension is as follows:-
When the aforesaid order was being dictated by the Court only the learned Advocate-on-record was present in Court, but after conclusion of argument other learned Advocates left the Court Room with the leave granted by Their Lordships. The learned Advocate-on-record for the petitioner missed that portion of the direction of Their Lordships'' with regard to the time limit. In substance there was a lapse and/or mistake on the part of the Advocate-on-record of the petitioner and as such the application could not be made within the time fixed by the Court.
3. This application is seriously opposed by both the respondents and it is stated that having regard to the language mentioned in the order no extension can be granted as on efflux of time as mentioned in the said order consequence would follow. Accordingly. vested right has accrued in favour of the private respondents and in terms of the said order Corporation Authority cannot decide the matter beyond the time fixed by the Court.
4. Mr. Kalyan Bandopadhyay. learned Senior Advocate while supporting this application contends that it is true that time limit is fixed by the earlier order however the Court''s jurisdiction cannot be fettered and in exercise of power u/s 148 read with Section 151 of the CPC read with Rule 53 of the Writ Rules, this Court had inherent power to grant extension under any circumstances for meeting the ends of justice. This proposition of law has been well settled by the Supreme Court by its following decisions:
5. He has drawn our attention to the annexures of the application that representation has already been made however taking advantage of the time limit fixed by the Court, authority has refused to entertain the same.
6. Therefore the time should be extended similarly direction be given to consider the same in terms of the earlier order.
7. Learned Counsel, Mr. Arunabha Ghosh appearing for the private respondent No. 4 counters the submission of Mr. Bandopadhyay contending that the nature of the order is such that the Court cannot grant extension. The Court can grant extension if the order is in the nature of terrorem. But if order is of mandatory character that can be found whereas consequences of failure is recorded, and if the Court become functus officio to touch the same.
8. He submits that the statement made purporting to be ground mentioned in the petition is wholly untrue as all the learned counsels were present and in their presence the order was dictated, hence if the representation was not made within the time the respondent-Corporation simply cannot consider. Moreover, the allegations of lapses of the learned Advocate-on-record made by the petitioner is not supported and corroborated by any document. This Court while entertaining the application had given direction specifically that it should be open for the Advocate-on-record of the petitioner either to swear an affidavit in support of the petitioner.
9. Under such circumstances this Court cannot grant any extension.
10. Learned counsel for the Indian Oil Corporation while opposing this application supports and admits the argument of Mr. Ghosh.
11. After noting the submissions of the learned counsels and reading the statement made in the petition now following questions have arisen:
(i) Whether this Court having regard to the language of the order can grant extension or not?
(ii) Whether there is sufficient and cogent ground to grant extension even if the Court has power to grant?
12. While examining the first point and reading the decisions cited by Mr. Bandopadhyay we are of the view that the power of this Writ Court for that matter Writ Appellate Court of this High Court to grant extension is no doubt inhere u/s 148 read with Section 151 of the Code read with Rule 53 of the Writ Rules. Supreme Court''s decisions cited above supports the aforesaid views. In case of
Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July, 13. 1954...These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed.
13. In the case of
It is a well accepted principle statutorily recognised in Section 148 of the CPC 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 time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inherent in its ambit the jurisdiction to extend time initially fixed by it.
(Emphasis supplied)
14. A fairly recent judgment of the Supreme Court in case of
The heart of the matter is that where the Court has the power to fix time and that power is not regulated by any statutory limits, it has in appropriate cases the power to extend the time fixed by it...."
15. On careful reading of the above decisions this provision of Section 148 read with Section 151 of the CPC it emerges as follows:-
The power of the Court to grant extension is not a matter of course or right and it is absolute discretion and it depends upon each and every individual facts and circumstances of this case. According to us while noting the aforesaid case of
16. Taking cue from of the observation of the Supreme Court in that case we are of the view that granting of extension in future by the Court can be regulated by the Court itself while passing the first order. If the Court itself curtails such jurisdiction initially with a clear mind that in future no extension can be granted then subsequently such an application cannot be entertained after expiry of the time limit stipulated in the order.
17. In this case as rightly pointed out by Mr. Ghosh the Court has specifically made it clear that in the event no representation was made the matter would be treated to be closed chapter, and in that case the choice of the third party namely Tapan Biswas has to be accepted and follow up action may be taken. With this language we think the Court has decided that no extension would be granted under any provision of the law, and it has put an end to the dispute between the parties.
18. Other two decisions of Supreme Court have nowhere stated that the Court under all circumstances will grant extension without any hesitation. Therefore in the fact and circumstances of this case if the Court is powerless to grant an extension as above order cannot be said to be an order in terrorem. We however add the power of extension can be exercised in a case where order is in the nature of terrorem viz. where consequence in case of default is not provided. As far as second question is concerned we are of the view that in this case alleged lapse on the part of the Advocate is not believed and accepted by the Court as this statement and averment has been denied and disputed by filing affidavit. While reading the order we do not find learned counsel and other lawyers except the Advocate-on-record after argument was over left the Court. In the order appearance and presence of all the lawyers for the petitioner till dictation of the order can be presumed, unless it is substantiated by the evidence. At the time of admission of this application a copy of the application was asked to be served upon the Advocate-on-record by the applicant and in spite of receipt of the same the said Advocate-on-record has not come forward either to make a statement or to swear an affidavit to corroborate the version of the petitioner. Ironically learned Advocate-on-record did not forget to mention the advantageous portion of the order while communicating the letter dated 20th August, 2011 immediately after passing of the said order. In the said letter it has been specifically mentioned that fresh representation was required to be considered and this should be considered within two weeks from the date of such communication. Moreover, it appears from the verification of the petition the petitioner was present and he has verified the statements in paragraphs 1 - 7 and 9 - 11 as true to his knowledge. So in paragraph ''6'' petitioner has stated that petitioner was directed to make representation within a week from the date of the order irrespective of receipt of the copy of this order. This statement has been verified as true to his knowledge therefore he was present in Court and must have heard this, as he is English knowing person, he has signed the petition in English. It is therefore misplaced statement. Thus it is immaterial whether learned Advocate-on-record missed the aforesaid portion of the order, when the litigant himself remaining present in Court is presumed to have heard dictation of the order given by Court, he has unnecessarily put blame on the learned Advocate-on-record who has not taken upon himself the responsibility of such lapse making any statement before Court or filing supportive affidavit. This Court disbelieves the statement outright. In view of the aforesaid discussion this application is dismissed. There will be no order as to costs.
Joymalya Bagchi, J.
I agree.
