Rajalakshmi v. P. Shanthi — 1992 DIGILAW 459 (MAD)

Judgment :- 1. The revision petitioners are the defendants in the suit O.S. No. 1856 of 1984 which was filed by the respondent-plaintiff for a declaration of her title and for prohibitory and mandatory injunctions. Pending suit, the respondent-plaintiff filed an application, I.A. No. 2981 of 1984 for amendment of plaint, particularly with regard to the boundaries of the suit property under O. 6, R. 17, of the Code of Civil Procedure but the same was dismissed by the trial court. The respondent preferred C.R.P. No. 630 of 1985 and the same was allowed on 19.4.1985 by the High Court with the result the respondent was permitted to amend the plaint. No time was fixed by the High Court for carrying out the amendment. The respondent received the copy of order in C.R.P. No. 630 1985 on 6.5.1985. The High Court directed the payment of Rs. 100/- as costs to the petitioner herein and the same was also paid by the respondent subsequently. The amendment in the plaint was not carried out by the respondent as the records had been sent to High Court in connection with C.R.P. No. 630 of 1985 and they were received back by the trial court sometime after 19.4.1985. The respondent came to know that the amendment was not carried out in the plaint only on receipt of the certified copy of the decree of the trial court and therefore, she filed T.A. No. 1491 of 1991 seeking permission of the court to carry out the amendment and the same was opposed by the petitioner as time barred. In the meantime the petitioners had preferred an appeal, A.S. No. 221 of 1991 in the District Court, Salem, against the judgment and decree of the trial court in O.S. No. 1856 of 1984. The application in I.A. No. 1491 of 1991 filed by the respondent was kept pending in the trial court. In the meantime the petitioners had preferred an appeal, A.S. No. 221 of 1991 in the District Court, Salem, against the judgment and decree of the trial court in O.S. No. 1856 of 1984. The application in I.A. No. 1491 of 1991 filed by the respondent was kept pending in the trial court. The respondent filed application in I.A. No. 46 of 1992 in A.S. No. 221 of 1991 in the District Court, Salem, praying for permission of the Court to carry out the amendment in the plaint under O. 6 R. 18 of the C.P.C. by pleading that it could not be carried out within the time prescribed for the reason that the records had been sent to High Court for the purpose of C.R.P. No. 630 of 1985 and the records were received late and no time was prescribed for carrying out the amendment. The petitioners-defendants opposed the application contending that the amendment ought to have been carried out within 15 days from the date of the order if no time was prescribed in the order of the High Court and that as such the application was barred by time. The petitioners also pleaded that they were to be given an opportunity for filing additional written statement if the amendment that was allowed by the High Court was carried out in the plaint. The learned Principal District Judge who enquired the application I.A. No. 46 of 1992 allowed the same on condition that the respondent should pay Rs. 100/- as costs to the petitioners on or before 10.3.1992 failing which the application shall stand dismissed. The matter was to be called on 10.3.1992. The petitioners have come forward with the present revision petition challenging the correctness of the said order of the learned Principal District Judge. 2. I heard the claims and contentions of the learned counsel on both sides. It is not in dispute that in the suit filed by the respondent the amendment of plaint sought for by the respondent in the trial court was rejected but that the same was allowed by the High Court in C.R.P. No. 630 of 1985 on 19.4.1985. It is also not in dispute that the order of the High Court does not prescribe any time limit within which the amendment should be carried out in the plaint. It is also not in dispute that the order of the High Court does not prescribe any time limit within which the amendment should be carried out in the plaint. Even the fact that the respondent has not carried out the amendment in the plaint within 14 days from 19.4.1985 as contemplated under O. 6, R. 18 of the C.P.C. is not in dispute. O. 6, R. 18 of the C.P.C. says: “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.” The plea of the respondent is that she could not carry out the amendment because the records had been sent to the High Court in connection with C.R.P. No. 630 of 1985 and they were returned to the trial court long after 19.4.1985 and in any event, not within 14 days from 19.4.1985. The respondent is said to have received the copy of the order in the C.R.P. only on 6.5.1985 which is also after 14 days from 19.4.1985. If 14 days time is calculated from 19.4.1985, the date of the order, it comes to 3.5.1985 and that must be the date within which the respondent was to carry out the amendment in the plaint and that she could not be permitted to carry out the amendment subsequent to 3.5.1985. The fact that the records were held up in the High Court as mentioned above and that the same had been returned to the trial court after 14 days from 19.4.1985 is not at all disputed in this case. 3. What has to be done by the respondent-plaintiff who has succeeded in getting an order for amendment of the plaint in the High Court in the circumstances will be relevant here. The respondent ought not to have filed an application before the trial court or the first appellate court, i.e., District Court, for grant of permission to carry out the amendment in the plaint. The respondent ought not to have filed an application before the trial court or the first appellate court, i.e., District Court, for grant of permission to carry out the amendment in the plaint. The respondent should have applied to the High Court subsequent to the receipt of the copy of order in C.R.P. praying for extension of time to carry out the amendment in the plaint by duly explaining the Circumstances in which the amendment could not be carried out in the plaint as provided under O. 6, R. 18 of the C.P.C. S. 148 of the C.P.C. says that where any period is fixed or granted by the Court for the doing of any Act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. 4. It has been held in Gurmit Singh v. Labhu Ram AIR (90)1952 Pepsu 42 that where an appellate court allows the plaintiff to amend his plaint within a certain time it is not competent to subordinate court to extend that time. The same view has been expressed in the decision reported in Ramulu Patrudu v. Narayana Raju AIR 1962 Andhra Pradesh 527. That was a case in which an amendment of plaint was disallowed by the trial court but allowed by the High Court on a revision petition on 12.2.1959 and no time for carrying out the amendment was specified. There was delay in the communication of the order allowing the amendment to the trial court but soon after the trial court learnt that there was dissolution of the stay of the suit and order in regard to the making of the amendment had been passed by the High Court, the plaintiff filed an application praying the trial Court to order amendment to be carried out in the plaint as per the orders of the High Court. The trial Court passed an order on 28.10.1959 to carry out the amendment without going into the question whether in the circumstances it had power to extend time for amendment or not. The amendment was carried out on 29.10.1959. The trial Court passed an order on 28.10.1959 to carry out the amendment without going into the question whether in the circumstances it had power to extend time for amendment or not. The amendment was carried out on 29.10.1959. On objection by the defendant therein that the amendment was not carried out within the time allowed bylaw the plaintiff applied to the High Court of Andhra Pradesh for an order that time from 26.2.1959 to 29.10.1959 might be extended. It was observed that the word court in O. 6, R. 18, had to be understood in the context. Trial courts also allow amendments and when the trial courts refuse, the appellate or revisional courts interfere and allow amendments. Such cases not being unknown, it is all the more reasonable that the word court should be a matter for understanding according to the context. In that case, even the trial Court thought it had powers to extend time given by the revisional court to amend the plaint. Such a mistake committed in the circumstances, could certainly be held to be bona fide. Therefore, on discovering the mistake an effort had been made by the plaintiff to file an application in the High Court to get a formal order of extension of time for amendment. It was held that in any case the mistake could be condoned, if necessary, by the exercise of the inherent powers vested in the High Court under S. 151 of the C.P.C. for the purpose of meeting the ends of justice AIR 1952 Pepsu 42 already referred to above has also been considered in the judgment of the High Court of Andhra Pradesh reported in AIR 1962 Andhra Pradesh 527 mentioned above. In Pahali Raut v. Khulana Bewa AIR 1985 Orissa 165 also it has been held that where the amendment has not been carried out by the party after obtaining leave within time limited by the order or within fourteen days from the date of the order where time was not so specified, extension of time to amend could be granted under S. 151 of the C.P.C. 5. The facts of the present case are also not anything different from those concerned in AIR 1962 Andhra Pradesh 527 and therefore the observations and principles enunciated therein may well apply to the present case. The facts of the present case are also not anything different from those concerned in AIR 1962 Andhra Pradesh 527 and therefore the observations and principles enunciated therein may well apply to the present case. We have already seen that the amendment that was originally sought for by the respondent in the trial court was rejected and it was allowed only by the High Court in C.R.P. No. 630 of 1985 dated 19.4.1985 and no time limit has been prescribed in the said order to carry out the amendment in the plaint. The amendment could not be carried out by the respondent plaintiff as the records including the plaint were not received in the trial court within 14 days from 19.4.1985 to enable him to carry out the amendment. Undeniably the records have been received and the copy of the order also has been received only after the expiry of 14 days from 19.4.1985. The respondent has filed the application, I.A. No. 1491 of 1991 in the trial court and I.A. No. 46 of 1992 in the appellate court seeking permission to carry out the amendment only subsequent to the expiry of the 14 days from 19.4.1985. I.A. No. 1491 of 1991 is said to be pending in the trial court but I.A. No. 46 of 1992 has been disposed of by the first appellate Court permitting the respondent to carry out the amendment of course subject to the condition of the respondent paying Rs. 100/- as costs. It is the said order passed by the first appellate court District Court that is now being challenged by the petitioners as illegal. In the circumstances, applying the principle stated in AIR 1962 Andhra Pradesh 42, it has to be held that the respondent may be permitted by the High Court to carry out the amendment even though the respondent has failed to file such an application before the High Court which allowed the amendment, but has filed the application, I.A. No. 46 of 1992 before the first appellate court. The High Court in the exercise of its inherent powers under S. 151 of the Code of Civil Procedure may condone the mistake of the respondent in filing the application I.A. No. 46 of 1992 before the first appellate court and treat the same as one filed under Ss. The High Court in the exercise of its inherent powers under S. 151 of the Code of Civil Procedure may condone the mistake of the respondent in filing the application I.A. No. 46 of 1992 before the first appellate court and treat the same as one filed under Ss. 148 and 151 of the C.P.C. and permit the respondent to carry out the amendment in the plaint. Now that the matter has come up on revision and the High Court was seized of the matter, it will be in the fitness of things and in the interest of justice that the High Court permits the respondent to carry out the amendment in the plaint. 6. In the result, this petition is dismissed. The respondent is permitted to carry out the amendment in the plaint within fourteen days from the date of receipt of this order by the trial court. On such amendment of plaint the petitioners-defendents may be given opportunity for filing additional written statement and both parties may adduce further oral and documentary evidence, if need be.