M. R. CALLA, J. - (1.) THE applicants filed a suit seeking a decree for perpetual injunction restraining the defendants or their agents from making any construction over the 'sheikh Bao Grave yard' belonging to the applicants with the further prayer that the defendants be restrained from demolishing the graves of the ancestors of the applicants and from illegal and unauthorised interference with the use of the said grave-yard and that the illegal construction over the said grave yard be demolished and the original position be restored. THE defendants filed the written statement and denied the averments made in the plaint; but the case set up by defendants was that the applicants plaintiffs had no graveyard of their own and there was no grave-yard nor there was any boundary. THE applicants-plaintiffs filed an application under Order 6 Rule 17, CPC seeking amendment of the plaint. THE Munsiff Magistrate, Ajmer City (West) in this Civil Suit No. 230/1985, Abdul Gaffar vs. Shahid Hussain & Ors. rejected the application under Order 6 Rule 17, CPC through which the amendment was sought. Against the order dated 25. 11. 1987 passed by the Munsiff Magistrate, Ajmer City (West), the applicants preferred a revision petition under See 115, CPC, which was registered as S. B. Civil Revision Petition No. 910/1987. This revision petition was decided on 21. 03. 1990 and, taking note of the fact that in the main proceedings in the civil suit issues were yet to be framed, the order dated 25. 11. 1987 was set aside, the revision petition was accepted and the applicants-plaintiff were permitted to amend the suit. It was also ordered by the Single Bench of this Court in the order dated 21. 03. 1990, while deciding the revision petition, that the applicant-plaintiffs may file (he amended plaint as per the amendment application within a month and pay a sum of Rs. 500/- to the defendant within one month and, in case of failure to do so it will be presumed that the applicants-plaintiffs were not interested in amending the plaint and the application seeking amendment shall automatically stand rejected. THE revision petition was decided accordingly. 2 THE order dated 21. 03. 1990 is reproduced as under : ***** 3 According to this order dated 21. 03. 1990 the amended plaint was to be filed by 20. 04. 1990 and a sum of Rs. 500/- was also required to be paid to the defendants by 20. 04. 1990. However, the amended plaint was filed on 28. 05. 1990. " Counsel for the defendants accepted the copy of the amended plaint and cost. THE trial Court, however held that the application for amendment of the plaint stood rejected in terms of this Court's order dated 21. 03. 1990 because the applicants-plaintiffs had failed to file the amended plaint & to pay a sum of Rs. 500/- as cost within one month from the date of the peremptory order. THE trial Court recorded the order dated 5. 11. 1990, that the amended plaint cannot be taken on record. THE applicant again approached this Court by filing a miscellaneous application under Section 151, CPC in S. B. Civil Revision Petition No. 910/1987, seeking an amendment of the order dated 21sl March, 1990, stating therein that they had received no any information from their counsel about the order dated 21. 03. 1990 & that they had come to know of it on 14. 05. 1990 only through their counsel in the trial Court and thereafter they approached the counsel who had appeared in the revision petition on their behalf in this Court, but were told that the information had been sent and, in case the same has not been received by the applicants, he cannot be blamed. It has been further stated in this Misc. Application filed on 16. 11. 1990 before this Court that the applicants-plaintiffs are undeducted and poor and, had they come to know of the order passed by this Court they would have certainly complied with the same within time & that they came to know of it only through their counsel in the trial Court on the basis of the copy of this Court's order which was sent to the trial Court by the Registry of the High Court. It has also been submitted by the plaintiffs applicants that non-compliance of the order was not deliberate or wilful and they have been made to suffer without there being any fault on their part. On these facts, it was prayed that the order dated 21. 03. 1990 be ordered to be modified & the time for filing the amended plaint and the payment of the cost be extended. When this application dated 16th Nov. , 1990 came up before the Court on 10. 09. 1991, after hearing the counsel for both the sides and after considering the law laid down by this Court in Smt. Chhagani vs. Tara Kumari (1), and Gobardhan Singh vs. Barsati (2) one of us (Hon'ble Mehta, J.) who had heard the matter as Single Judge agreeing with the view taken by the All, High Court, referred this matter to the Larger Bench. Making a reference to the Larger Bench on 10. 09. 1991, the following question was formulated :- " Whether Sec. 148 read with sec. 151 CPC empowers the Court to extend the time after the expiry of the period originally fixed irrespective of the fact that the application for extension of time has been moved after the expiry of the period fixed under the order?"
(2.) THE order dated 10. 09. 1991 is reproduced as under: " Hon'ble D. L. Mehta, J. Mr. S. K. Keshote for the petitioner Mr. K. C. Sharma for the non-petitioner. Heard learned counsel for the parties. Learned counsel for the non-petitioner invited my attention to the judgement of this Court in the case of Smt. Chhagani vs. Tara Kumari 22 IIR (1972) Raj. page 1295. This Court held that time granted under a peremptory order should also be extended provided the application for extension of time was made before the expiry of the period fixed under the peremptory order meaning thereby that the Court has limited power of extending the period under section 148 CPC only in cases where the application has been filed within the period specified in the pre-emptory order. In this judgment, the provision of Section 148 CPC has been considered. Mr. Keshote cited before me the case of Gobardhan Singh V. Barsati (AIR 1972 All. page 246 ). In this case, the Full Bench of the Allahabad High Court has taken the view that Section 148 empowers the Court to extend the lime even after the expiry of period originally fixed irrespective of the fact that whether application for extension is made before or after the expiry of the period. Mr. Keshote has also cited some other cases. I agree with the view taken by the Allahabad High Court and I consider it proper to refer this matter to the larger bench to reconsider the decision given in the case of Ml. Chhagani (supra ). Hon'ble Chief Justice may be requested to constitute the larger bench for consideration of the judgment on the following point :- " Whether Sec. 148 read with Section 151, CPC empowers the Court to extend the time after the expiry of the period originally fixed irrespective of the fact that the application for extension of time has been moved after the expiry of the period fixed under the order?' Registrar is directed to place the file before the Hon'ble Chief Justice for constituting the Bench. THE proceedings in the trial Court shall remain stayed for a period of three months. It is expected that the Hon'ble Chief Justice will constitute the Bench within this period and matter be placed before the Bench so constituted for further orders. Sd/- D. L. Mehta J" Thus the limited question before us which has been referred to this Larger Bench is as to whether the Court is empowered under Sec. 14s read with Sec. 151 CPC to extend the time granted under a peremptory order even if the application for extension of time is filed after the expiry of the time originally granted by the Court. Shri S. K. Keshote appearing for the applicants-plaintiffs has submitted that ordinarily the Court may not extend the time granted under a peremptory order in case the application seeking extension of time is filed after the expiry of the period granted by the Court on a peremptory order but it cannot be a rule of thumb. His submission is that in a given case when it is made to appear before the Court that for reasons beyond the control and comprehension of a party, the application seeking extension of lime could not be filed prior to expiry of the period granted in the peremptory order if the Court feels persuaded that the party was really not at all at fault, it cannot be countenanced as a proposition of law that the Court has no powers to extend the lime if the application for extension is made after the expiry of the time originally fixed by the Court. According to Shri S. K. Keshorte, such power to grant extension of time even after the expiry of the period originally fixed by the Court is discernible from the provision of Sec. 148 read with Sec. 151, CPC Shri S. K. Keshote has submitted that the proposition which has been laid down in Ml. Chhagani vs. Tara Kumari (supra) does not lay down the correct law on the point and he has relied on the following authorities :- Mahant Ram Das vs. Ganga Das (3) Gobardhan Singh vs. Barsati (supra) Persiasami vs. Illupur Panchayat Board (4) Shankar vs. Parwatibi (5) Budhulal vs. Chhotelal (6) Akbar Ali vs. Abdul Wahab (7) Indian Statistical Institute vs. (Associated Builders (8) Chinnamarkathian vs. Ayyavoo (9) and Johri Singh V. Sukh Pal Singh (10) As against this, Shri Jain appearing on behalf of the respondents has placed reliance on Ml. Chhaganis. Tara Kumari (supra) and Mohan Prakash vs. Gulab Chand It has been argued by Shri Jain that once the period granted under the peremptory order is extended, no application seeking extension of time made after the expiry of the period originally fixed by the Court, can be entertained; and in case such an application is made even after expiry of period of peremptory order and if the time is extended even at this stage, there will be no sanctiy of the per-emptory order passed by Court and the whole stand defeated and frustrated. If an order passed before hand and it has to become effective on doing or not doing any act within the stipulated time, the order is known as Peremptory order. The word " Premptory" according to the Concise Oxford Dictionary, New 7lh Edition, at page 761, Col. 2 means as under :- " 1. (Law) final, not open to appeal or challenge (peremptor), challenge prisoner's objection to proposed juror by right without need to give reason 2. (of statement or command) admitting no denial or refusal; (of person etc.) dogmatic, imperious, dictatorial. " The word "peremptory" as such will certain suffixes has been given the following meaning in Webster's Third New International Dictionary, Vol. II, page 1677, Col. : Peremptory final decisive, to take away entirely, destroy, kill, I. Putting an end to for precluding a right of action debate or delay, admitting no contradiction, absolutely find. ' 2 A. expressive of urgency or command imperative, 3-a (i) marked by self assurance, confident, positive 4. of an arrogant or imperious nature, houghty, dictatorial (ordered around in the most terms ). Peremptory : a case, circumstance, document, or command that cannot be ignored; Peremptory Challenge : a challenge (as if a juror) made as of right without assigning any cause. Peremptory exception or peremptory plea : A legal exception or plea attacking the cause of action of defence or its merits. Peremptory instruction : An instruction charging a jury that if they agree to the truth of certain staled facts they must find for a designated party. Peremptory mandamus : A final and absolute mandamus to enforce the court's judgment. " The word "peremptory norms of Jus congens" has been given the following meaning in Vidhi Shabdawali (Legal Glossary), l988 issued by the Ministry of Justice and Legal Deaprtment at page 244, Col. I : ***** According to Stroud's Judicial Dictionary Vol. IV, the word "peremptory" at page 1982, means as under : (1) "peremptory" signifies a final and determinate act. without hope of renewing or altering (Cowel ). (2) A peremptory challenge of a juror is "used only in matters criminal, and alleged without other cause than barely the prisoners fancy" (Cowel, Challenge); but the Crown has also in some cases the right of peremptory challenge, sec here on Arch. Cr. 32nd ed.) 174. (3) " A peremptory DAY is when business is to be spoke to at a precise day; but if it cannot be spoken to then, the court, at the prayer of the party concerned, will give a farther day without prejudice to him" (Jacob ). (4) " A peremptory mandamus requires the thing to be done absolutely, and to it nothing but a certificate of perfect obedience can be proper return, see here on Short and Mellor's Crown Officer Practice (2nd ed.) 240. " (5) "a peremptory order for time to plead means that the order is final unless varied by a subsequent order on special circumstances being shown for a further extension (Falck Vs. Axtheim 24 ABD 176 ). " In 'judicial Dictionary' by K. J. Aiyar, 8lh ED. Page 712, the word "peremptory" has been given the following meaning :- " Peremptory : Final and determinate. " " Peremptory adjournment : An Adjournment to a day when the business shall be taken up and proceeded with the court. " " Peremptory challenge" An arbitrary species of challenge to a specified number of jurors by the accused or prisoner without any reason being stated. This is privilege accorded both to the Sovereign and to the prisoner, when jurors are chosen before the commencement of a trial by jury. " " Peremptory paper. A portion of the cause list in which mention will be made of all motions to be disposed of before any other business. " " Peremptory undertaking : An undertaking to proceed with the cause upon payment of costs; or to bring an action at the next adjourned or specified date upon payment of the costs. Ordinarily, adjournments are granted to a parly upon an undertaking to pay the other party its costs; the case, in the next adjourned date, will not be taken up, or, the case will be decided against the party who moved for the adjournment, if the costs ordered be not paid. The payment of the costs is a condition precedent for the right of hearing to the parly who applied for the adjournment. " P. Ramatha Aiyar's The Law Laxicon, Reprint Edition, l987, at page 964, Col. 2, deals with the word "peremptory" as under :- " Peremptory joined with a substantive, as action or exception signifies a final and determinate act, without hope of renewing or altering (Tomilins Law Dic. ). Imperative, absolute, not admitting of question delay, or reconsideration; positive, final, decisive, not admitting of any alternative, self determined, arbitrary. Any statement of declaration is peremptory which is meant to be final and determinate, and is therefore couched in absolute or positive language. There is no hope of further amendment or indulgence. Peremptory challenge. Peremptory challenges are those which are made to the jury without assigning any reason, and which the courts are bound to respect. Peremptory challenge of a juror's used only Juror (?) matters criminal, and alleged without other cause than barely the prisoner's fancy (Cowel ). Peremptory date, is when business is to be spoken to at a precise day, but if it cannot be spoken to them, the Court, at the prayer of the party concerned, may give farther day without prejudice to him (Jaco ). Peremptory mandamus, 'peremptory writ. of manadamus is an extraor dinary remedy to coerce the performance of a pre-existing duty or a clean and specific legal right. A peremptory order for time to plead, means, that the order is final unless varied by a subsequent order on special circumstances being shown for a further extension. (Falck v. Axtheli 24 QBC 176;59) LJOB 161 ). "
(3.) IT is, therefore, clear that when a peremptory order is passed by the Court, the Court passes a coercive order for the performance of a pre-existing duty in the nature of command for the obedience within a given time, failure of which is to entail a penal consquence. IT is clear that even if a peremptory order is final, it is sounless varied by a subsequent order on special circumstance being shown but for a further extension. The peremptory order is, therefore, capable of being varid in case special circumstances become the crux of the matter. In a gvin case,even if the special are shown for further extension. Thus it cannot be said once a peremptory order is passed it is untouchable and, once it is held that the time under an order can be further extended on special circumstances being shown such circumstances become the crux of the matter. In a given case, even if the special circumstances are shown after the expiry of the period fixed by the court for the purpose of exiention as well as to explain as to why an application seeking extension could not be made prior to the expiry of time, the time may be extended by the Court. Usually, this type of orders are passed by the Court to gel the compliance in lime bound manner and therefore, the whole purpose is that the lime schedule fixed by the Court should be adhered to and the order is faithfully and punctually complied with. In such cases, if any application is moved before the expiry of the lime fixed by the Court seeking extension of time, there cannot be any difficulty in extending the time. However the question posed in the reference under consideration is as to whether the courts can extend the lime even in such cases where the application seeking extension has been made after the expiry of the period fixed by the court. While considering this question, we have to keep in view that such cases may also be there where it was physically practically impossible for a particular party to apply for extention of time within the time fixed by the court, it may be beyond the control and comprehension of a party to make such an application within time prescribed by the court. There may be cases in which a party may be helpless and stands prevented by a reasonable, sufficient and just cause from making such an application within the time fixed by the court and there may be cases in which the court may find that in the facts of a given case, it would lead to a gross injustice if the application seeking extension of time made after the expiry of period fixed by the court, is not allowed. The question that arises for our consideration is whether in such cases also the courts should he rendered powerless and helpless spectator when even if the Court is convinced that the parly could not have approached the courts for extension of lime within the time fixed by the court and yet should withhold the order granting extension of time merely because the application seeking extension of time has been made after the expiry of the period fixed by the court. It is, of course, true that in Chhagani & Anr. Vs. Smt. Tara Kumari &. Anr. (supra) a division bench of this Court had taken the view that according to the provision of Sec. 148, CPC, lime granted under a peremptory order could be extended if the application in that behalf was made before the expiry of that time and in the facts of that case, a peremptory order was passed on 19. 07. 71 requiring compliance to pay the court-fee within a period of six weeks, failing which the appeal was to stand dismissed. The court fee had been paid on August 20,1971 and, yet an order was made on 23. 08. 1971 dismissing the appeal on the ground that the court-fee had not been paid and when an application was moved to set aside the order dated Aug. 23, 1971, saying that the court-fee had been paid on Aug. 20,1971, the application was dismissed. But in the facts of this case, it would appear that no application had been filed seeking extension of time after the expiry of six weaks. The application which was moved and which was rejected by the court was an application to set aside the order dated 23. 08. 1971 by which the appeal had been dismissed as a result of the peremptory order. Therefore, we find that though as a proposition of law, the Division Bench laid down the principle that the time granted under a peremptory order can be extended if an application in that behalf is made before the expiry of that time. But it has not been held in this case as a positive principle that extension of time cannot be granted in case the application seeking extension is filed after the expiry of the period granted under the peremptory order because, in fact, there was no application seeking extension of time, but the arguments was that the peremptory order stood complied with on 20. 08. 1971 by paying court-fee and therefore, the order dated 23. 08. 1971 should be set aside, and what was argued before the court was that the court had the jurisdiction to set aside the order passed on Aug. 23,1971 despite the fact that no application for extension of time was made before the expiry of six weeks time from July 5, 1971 allowed under the order dated July 9,1971. It was in this context that the court laid down that the time granted under a peremptory order could be extended provided an application for extension of time was made before the expiry of the period fixed under the peremptory order. ;