High Court Of Telangana
Civil Revision Petition No. 2892 Of 2002
DATE: 14-06-2002
B.K. Office Needs Private Limited
Vs.
Divya Shakthi Granites Limited, Hyd
J U D G M E N T
G. ROHINI, J.
( 1 ) THESE two Civil Revision Petitions arising out of a common order in two interlocutory applications in O. S. No. 647 of 1996 on the file of the Court of the V Senior Civil Judge, City Civil Court, Hyderabad are heard together and decided by this common order:
( 2 ) THE defendant, who is the petitioner in the said two Interlocutory applications, is the Petitioner in both the Revision Petitions. For the sake of convenience the parties shall be referred as they were arrayed in the suit.
( 3 ) THE facts which are not in dispute are as follows; the plaintiff who is the respondent herein filed OS No. 674 of 1996 as a summary suit for recovery of Rs. 18,46,813. 36 Ps alleged to be due from the defendant. The defendant filed. A. No. 1139 of 1996 seeking leave to defend the suit. The said application was allowed by order dated 4-11-1997 subject to the condition of depositing Rs. 6,80,741. 42 Ps within six weeks. Aggrieved by the said order the defendant filed CRP No. 349 of 1998 but the same was dismissed on 19-6-1998 directing the defendant to deposit the amount within sixty days. However, the defendant failed to deposit the amount within the time granted and consequently. A. No. 1139 of 1996 was dismissed on 10-11-1998. In the meanwhile the defendant filed review CMP No. 20238 of 1998 seeking review of the order of this Court in CRP No. 349 of 1998 by permitting him to deposit the original title deeds of immovable property as security instead of depositing Rs. 6,80,741. 42 Ps to the credit of the suit. The said review petition was dismissed by this Court by order dated 31-12-1998, however, this Court granted time till 21-1-1999 to comply with the earlier order to deposit the amount. In compliance with the said order the defendant deposited the amount by way of demand draft dated 12-1-1999 vide memo dated 18-1-1999. He also filed IA No. 1221 of 1999 to receive the demand draft and the same was allowed on 27-1-2000. Thereafter on 5-4-2000 a notice was issued to the defendant by the Court below to get the demand draft revalidated on or before 10-4-2000. At the request of the defendant the Court below extended the time from time to time till 23-6-2000. At that stage the defendant filed IA No. 997 of 2000 to accept the Bank guarantee for Rs. 6,80,742. 00 in lieu of depositing the amount as per the order dated 4-11-1997 in IA No. 1139 of 1996. The defendant also filed IA No. 998 of 2000 to modify the order dated 4-11-1997 in. A. No. 1139 of 1996 directing deposit of Rs. 6,80,741. 42 Ps to the credit of the suit by receiving bank guarantee No. 2000005 issued by SBI Nungambakam Branch, Chennai for the same amount. In the affidavit filed in support of the said applications the petitioner-defendant stated that as per the notice received by them from the Court the demand draft deposited by them was returned by the Accounts Section of the Court on the ground that it was out of date. In the circumstances the defendant was asked to get the demand draft renewed. When they presented the demand draft for revalidation their Banker informed that revalidation is not possible since the Demand Draft was obtained from them availing credit facility subject to payment of high interest and a sum of about Rs. 30. 00 lakhs was outstanding for the past 1 1/2 years. In the circumstances the Bank cancelled the demand draft and appropriated the proceeds of the same towards the arrears outstanding to their credit as per the Rules of the Bank. However, the bank has agreed to issue bank guarantee for the same amount of Rs. 6,80,742. 00 as an alternative measure. While producing the said bank guarantee the defendant filed the aforesaid two applications seeking permission of the Court to modify the earlier order suitably and to accept the bank guarantee.
( 4 ) THE said applications were contested by the plaintiff by filing a detailed counter. The Court below by order dated 19-7-2000 dismissed both the applications holding that the reliefs sought by the defendant granted would amount to contempt of Court since the order in JA No. 1139 of 1996 directing to deposit the amount was upheld in C. R. P. No. 349 of 1998. Aggrieved by the said common order in IA Nos. 997 and 998 of 2000 the defendant preferred the present two civil revision petitions.
( 5 ) HEARD the learned Counsel for the petitioner as well as the respondent.
( 6 ) SRI V. LN. G. K. Murthy, representing Sri K. Suryanarayana, learned Counsel appearing for the petitioner submitted that admittedly the defendant-petitioner complied with the order in IA No. 1139 of 1996 by depositing the demand draft within the time prescribed by this Court in CRP No. 349 of 1998 and failure of the Court to encash the demand draft in time shall not cause any prejudice to the petitioner, and therefore, the Court below is not justified in dismissing the applications. While quoting the maxim “actus curiae neminem gravabit” the learned Counsel contended that in the facts and circumstances of the case it cannot be held that there is any default on the part of the defendant and therefore the party should not be made to suffer. In support of his contention the learned Counsel placed reliance upon Jung Singh v. Brij Lal, AIR 1966 SC 1631, and Johri Singh v. Sukh Pal Singh, AIR 1989 SC 2073.
( 7 ) THE principle underlying the maxim “actus curiae neminem gravabit” is that the act of Court should harm no one. The said maxim is founded upon the principle of justice and good conscience. Explaining the maxim the Courts have held that where an error was committed by the Court the same must be undone by the Court and the blame cannot be shifted to the party who was expected to rely upon the Court and its officers and to act in accordance with their directions.
( 8 ) IN Jung Singh v. Brij Lal (supra) a suit for pre-emption ended in a compromise decree directing the plaintiff to deposit Rs. 5,951. 00 less Rs. 1,000 already deposited by him by 1-5-1958 failing which the suit stands dismissed with costs. The plaintiff made the deposit in time, but on the basis of a challan prepared by the Clerk of the executing Court a sum of Rs. 4,950. 00 was deposited instead of Rs. 4,951. 00. Thereafter he obtained an order for possession of the land. However, subsequently it came to light that the deposit made by the plaintiff was short of one rupee. On an application of the defendant for dismissal of the suit the Court held that the pre-emptor by his failure to deposit the correct amount incurred the dismissal of the suit under the decree and accordingly directed restoration of possession of the land. On appeal by the plaintiff the appellate Court held that the plaintiff was prevented from depositing the full amount by the act of the Court and therefore the deposit made was sufficient compliance with the terms of the decree and accordingly set aside the order of the executing Court. However the High Court did not agree with the view taken by the appellate Court and restored the order of the executing Court. On an appeal to the Supreme Court while referring to the maxim “actus curiae neminem gravabit” it has been held as under: “it is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court is supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: “adits curiae neminem gravabit”. In the facts and circumstances of the case the Supreme Court held that the appellate Court was right in reversing the decision of the executing Court, but it is not correct to hold that the decree was sufficiently complied with since the decree can only be fully complied with by making the deposit of balance of rupee one. Accordingly the Supreme Court allowed the appeal and granted one month time for depositing the said one rupee.
( 9 ) SRI V. LN. G. K. Murthy also relied upon Johri Singh v. Sukh Pal Singh (supra ). In the said case the decree did not quantify the purchase money. There was an inadvertent error in arithmetic calculation and the application of the appellant together with the challan annexed was allowed by the Court without pointing the mistake. Consequently though the amount payable was deposited within the time fixed, there was a deficit of Rs. 100. 00. The trial Court allowed the application made by the appellant for enlarging the time in exercise of the discretion vested in him, apparently on the view that sufficient cause has been made out for non-deposit of Rs. 100. 00. However the said order was set aside by the High Court in Civil Revision under Section 115 of CPC. The Supreme Court while discussing the scope of Section 148 of CPC regarding extension of time and the scope of revisional jurisdiction under Section 115 of CPC held as follows:”. . . NOTHING has been brought to our notice on the basis of which it could be said that the discretion exercised by the Senior Subordinate Judge was in breach of any provision of law or that he committed any error of procedure which was material and may have affected the ultimate decision. That being so, the High Court had no power to interfere with the order of the Senior Subordinate Judge, however, profoundly it may have differed from the conclusions of that Judge on questions of fact or law. On the facts and circumstances of the case we feel justified in allowing this appeal, setting aside the impugned judgment of the High Court, and in restoring that of the Senior Subordinate Judge allowing 10 days time to deposit the balance of Rs. 100. 00 exercising power under Section 148, C. P. C. on facts of the case. “though the maxim “actus curiae neminem gravabit” was referred to, the principle underlying the said maxim was not applied while adjudicating the issue in question in Johri Singh v. Sukh Pal Singh (supra ). In my considered opinion the said decision is of no assistance to the contention raised by the petitioner.
( 10 ) THE facts in the decision of Jung Singh v. Brij Lal (supra) are also entirely different. In the said case a finding was recorded that the Court and its officers were largely attributed to the error which resulted in depositing lesser amount by the party. In the circumstances it was held that dismissing the suit because the party was also partly negligent does not exonerate the Court from its responsibility for the mistake. The wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for the said error the Court must take full responsibility and the error must be set right by the Court. Accordingly the Supreme Court observed that the case must go back to the stage when the mistake was committed by the Court and the party should be ordered to deposit one rupee which fell short and if he fails to make the deposit within the time specified the suit may be dismissed but not before. The principle laid down is that in view of the mistake of the Court which needs to be righted the parties shall be relegated to the position they occupy when the error was committed by the Court.
( 11 ) IN the instant case the Court below while granting leave to defend directed the defendant to deposit Rs. 6,80,741. 00 within six weeks. By order of this Court in CRP No. 349 of 1998 the time for depositing the amount was granted till 21-1-1999. It is also pertinent to note that the plea of the defendant to permit him to deposit the title deeds of immovable property as security instead of making cash deposit in compliance with the order in IA No. l 139 of 1996 was not accepted by this Court while dismissing the Review Petition in CRP No. 349 of 1998. Admittedly the defendant did not deposit the said amount in cash to the credit of the suit, but a demand draft dated 12-1-1999 was deposited, vide memo dated 18. 1. 3 999. Though the defendant filed IA No. 1221 of 1999 to receive the demand draft on 18-1-1999, the same was pending in the Court for about an year and ultimately it was allowed on 27-1-2000. There is absolutely no plea in the affidavit filed in support of the present applications that the defendant has taken any steps for expeditious disposal of 1a No. 1221 of 1999 nor there is any allegation of inaction on the part of the Court in allowing IA No. 1221 of 1999 inspite of diligent efforts on the part of the petitioner. It may also be pointed out that the defendant/petitioner has not pleaded before the Division Bench that though the demand draft was deposited in time, it was not encashed in time due to default of the staff of the Court. The said contention has been raised for the first time in these Revisions while referring to the maxim “actus curiae neminem gravabit.
( 12 ) I am of the view that the present case cannot be placed on par with the decision in Jung Singh v. Brij Lal (supra), and it cannot be said that failure to encash the demand draft can be attributed to the act of the officers of the Court below. As can be seen IA No. 1221 of 1999 to receive the demand draft was allowed only on 27-1-2000. Even by that time the demand draft dated 12-1-1999 has already lapsed. Even assuming that the pendency of IA No. 1221 of 1999 has resulted in not encashing the demand draft and therefore it shall be treated as an error on the part of the Court, it may be noted that the Court below by notice dated 5-4-2000 called upon the defendant to get the demand draft revalidated and granted sufficient time till 23-6-2000 for revalidating the demand draft. Thus the mistake if any committed by the Court has been set right and the defendant was granted sufficient time to comply with the order in IA No. 1139 of 1996. Since he failed to deposit the revalidated demand draft within the time specified, the Court below refused to grant any relief in IA Nos. 997 and 998 of 2000. It cannot be said that the Court below acted with any illegality or material irregularity in exercise of jurisdiction vested under law in dismissing the said applications.
( 13 ) THAT apart as pointed out by the learned Counsel for the respondent this Court has already dismissed Review CMP No. 20238 of 1998 rejecting the request of the defendant to deposit immoveable property security instead of making cash deposit to the credit of the suit. Allowing IA Nos. 997 and 998 of 2000 would virtually amount to reviewing the order in CRP No. 349 of 1998 which has already become final. The learned Counsel for the respondent has also brought to my notice that since the defendant failed to comply with the conditional order in IA No. 1139 of 1996 the said application was already dismissed on 10-11-1998 and till today the said application has not been restored. As a matter of fact the suit itself was decreed on 26-7-2000 in view of the dismissal of IA Nos. 997 and 998 of 2000. In the circumstances I do not find any justifiable ground to interfere with the order under revision.
( 14 ) ACCORDINGLY, both the revision petitions are dismissed. However, in the circumstances, there shall be no order as to costs.
