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1988 DIGILAW 131 (CAL)

GOBARDHAN PATRA v. ASHUTOSH NANDY

1988-03-28

SUSANTA CHATTERJI

body1988
SUSANTA CHATTERJEE, J. ( 1 ) THE petitioner/defendants have filed the present revisional application challenging Order No. 115, dated 8. 9. 86 passed by the learned munsif, 7th Court at Howrah in title suit No. 60 of 1971. An application under Section 151 of the Code of Civil Procedure was filed by the defendants for recalling the order passed by the learned munsif on 4. 2. 85. It was submitted that the application for amendment as prayed for by the plaintiff was allowed by Order No. 81, dated 4. 2. 85. In fact, the leave was granted by the appellate court to allow the plaintiff to seek amendment and thereafter the plaintiff filed an application under Order 6 Rule 17 of the Code of Civil Procedure. No time was st1pulated by the appellate court and accordingly under Order 6, Rule 18 it would be clear that if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or, if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the court. It is submitted that beyond the aforementioned 14 days an application for amendment was filed by Order No. 18. dated 4. 2. 85 the learned munsif has allowed the same, and thereafter a petition under Section 151 of the Code filed to recall the order. The learned munsif, however, rejected the said petition and being aggrieved the defendants have come to this Court. ( 2 ) IT is strongly submitted that the learned munsif ought not lave allowed the prayer for amendment of the plaint filed and time as envisaged under Order 6 Rule 18 of the said Code ought to have further considered the petition under Section of the Code to recall the order and to decide the case effectively. It further appears that the application for amendment was filed and after hearing both sides the learned munsif found that proposed amendment was not inconsistent and the same would change the character of the suit. Upon proper consideration prayer for amendment was allowed. Against the said order the Petitioners have not come to this Court. It further appears that the application for amendment was filed and after hearing both sides the learned munsif found that proposed amendment was not inconsistent and the same would change the character of the suit. Upon proper consideration prayer for amendment was allowed. Against the said order the Petitioners have not come to this Court. On the other hand, a petition under Section 151 of the Code was filed as indicated above. ( 3 ) ATTENTION of this Court was drawn to a case reported in 19 C. W. N. 200 (Thakur Madan Mohan Nath Sahi Deo vs. Maharaja Pratap Udai Nath Sahi Deo ). It was found that Rule 18 of Order 6 of the Code of Civil Procedure did not apply to the matter as the order of the High Court directing amendment was not made under Order 6 Rule 17 C. P. C. but under the power of the court to order that certain steps should be taken by the parties to enable the differences between them to be properly settled, and the amend- It made was not out of time. It was clearly pointed out that where leave was not granted strictly within the scope of Order 6 Rule 17 of the Code there cannot be any operation of Order 6 Rule 18 of the Code. Attention of this court was further drawn to a reported in A. I. R. 1985 Orissa. 165 (Pahali Raut vs. Khulana Bewa and Ors.) where the amendment has not been carried out by party after obtaining leave within time limited by the order or tin !4 days from the date of order where time was not so specified , extension of time to amend could be granted under Section 151 he Code of Civil Procedure. It was found further that it should not be forgotten that the practice sometimes lulls the party his counsel into inaction and the party and his counsel learned at a later stage to ,their discomfiture that the amendment has not been carried out despite leave having been granted and Rule 18 of Order 6 is the stumbling block. ( 4 ) THE next case cited was the decision reported in A. I. R. 1977 Gujarat 109 (Naresh Chandra Chinubhai Patel vs. The State of Gujarat and Anr. ). ( 4 ) THE next case cited was the decision reported in A. I. R. 1977 Gujarat 109 (Naresh Chandra Chinubhai Patel vs. The State of Gujarat and Anr. ). It is also found that there is no scope of Section 148 of the Code of Civil Procedure, inasmuch as, in both the categories of case, viz. , where a party has not amended within the time granted by the court in the order or a party, where no such time is limited in the order itself, has not done it within 14 days from the date of the order, the party is not permitted to amend either after expiration of such limited time as aforesaid or of such 14 days, as the case may be, unless the time is extended by I the Court. Section 148 of the Code cannot be resorted to, for narrowing down the scope of Order 6 Rule 18 of the Code, the language of which is quite clear and unambiguous to indicate that the Court's power under Order 6 Rule 18 to extend such time is not limited only to one category of cases. The next case cited is the decision reported in A. I. R. 1974 S. C. 130 (Dilbagh Rai Jerry vs. Union of India and Ors. ). It was found therein that while it is true that Rules 17 and 18 of Order 6 of the Code of Civil Procedure do not, in terms, apply to amendment of an application under Section 15 (2), the authority is competent to devise, consistently with the provisions of the Act and the rules made thereunder, its own procedure based on general principles of practice, equity and good conscience. One of such principles is that defeats equity. Therefore, where the petitioner took no steps whatsoever to carry out the amendment for several months after the Order permitting the amendment, and thereafter, when the case was at the final stage, he suddenly woke up and sought to amend his application, the authority was justified in refusing to carry out the amendment. ( 5 ) ANOTHER decision of the case is pointed out by referring the case reported in A. J. R. 1974 Karnataka 136 (B. Channabyre Gowda and Ors. vs. State. of Mysore ). ( 5 ) ANOTHER decision of the case is pointed out by referring the case reported in A. J. R. 1974 Karnataka 136 (B. Channabyre Gowda and Ors. vs. State. of Mysore ). It was decided therein that no Order of the Court extending time for amendment fixed by court unless the defendant is not filing additional written statement since amended plaint was not filed within time fixed and held that the court below was in error in treating amended plaint as one filed in compliance with Order 6 Rule 18 of the Code. ( 6 ) CONSIDERING all these submissions regarding the scope of filing a petition for amendment after the expiry of 14 days, it appears that the prayer for amendment was filed in the court below and it was considered by the learned munsif who allowed the same on merit. Two things have got to be found out. In the first category of cases where leave is granted under Order 6 Rule 17 of the Code, the procedure as envisaged in Order 6 Rule 18 is attracted. Regarding the second category of cases, where leave has been granted to amend the pleadings for effective adjudication of the matter in dispute not strictly within the scope of Order 6 Rule 17 there cannot be application of time limit as envisaged under Order 6 Rule 18 of the Code. The third aspect of the matter is that if the petition for amendment is filed beyond 14 days time where no time is stipulated by the appeal court, which court would be competent to extend time, or would the courts be helpless to extend the time at all. In my opinion, when the rules of procedure are handmaids of justice they should be applied not in a pedantic manner but with all pragmatic force. The Court should not be found to be helpless to extend time even if the prayer for amendment of the plaint is filed beyond time as provided by the order or in the absence as indicated in Rule 18 of Order 6. The question of extension of time will have to be made either by the Appeal Court or by the Trial Court. The question of extension of time will have to be made either by the Appeal Court or by the Trial Court. If upon proper circumstances the amendment could not have been filed the petitioner will have to make such application and the Learned Court would consider and in that event both the Appeal Court and the Trial Court would be deemed to be possessed of the power to consider the same. In the next case where there is no amendment under Order 6 Rule 17 of the Code the question will not arise. In the instant case having gone through the pleadings and the materials on record it is not clear that the amendment was essentially allowed under Order 6 Rule 17 of the Code to bring into action of Rule 18 or, Order 6. Besides the prayer for amendment was considered which may be challenged under Section 105 of the Code at a later stage. The petition under Section 151 of the Code was filed and the same was not entertained by the learned munsif, and after going through both the orders, namely, Order No. 81, dated 4-2-85 and the impugned order, this Court does not find that there is any prejudice towards the interest of the opposite party and I am not inclined to interfere with the impugned order. On this score this revisional application is rejected without any order as to costs. ( 7 ) LET a copy of this Order be sent to the Court below as early as possible. Application rejected.