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1998 DIGILAW 396 (RAJ)

Ajay v. Anupama

1998-03-20

P.C.JAIN

body1998
JUDGMENT 1. - The defendant-petitioner has filed this revision petition under section 115 CPC against the order dated 28.11.1997 of the learned District Judge, Sri Ganganagar passed in Civil Misc. Case No. 3/97 whereby the learned District Judge allowed the application filed by the non-petitioner-plaintiff u/O. 6 R. 17 on payment of cost of Rs. 100/, 2. The non-petitioner-plaintiff filed a suit for cancellation of a compromise decree passed by the learned District Judge, Sri Ganganagar in Misc. Case no. 399/96 on 6.1.1997 under section 13-A of the Hindu Marriage Act, 1956. The above decree was passed after observing all the legal requirements and formalities and after being satisfied with the truthfulness of the statements of both the parties. The non-petitioner filed a suit seeking declaration that the decree be cancelled. The petitioner resisted the above suit and filed reply and inter alia pleaded that the suit as filed by the non-petitioner is not maintainable in view of the provisions contained in 0.23 R. 3-A CPC. On the pleadings of the parties, issues were struck on 3.5.1997 and the case was fixed for the evidence of the plaintiff,non-petitioner. On 11.10.1997, the non-petitioner moved an application u/O. 6 R. 17 CPC seeking amendment in the pleading. It was stated in the application that the plaintiff has sought cancellation of the decree passed on 6.1.1997 on the ground of fraud and misrepresentation. The plaintiff, in view of the provisions contained in 0. 23 R. 3-A CPC and the judgments of various Courts delivered in pursuance .of the above provisions thought it proper to seek amendment by inserting Section 151 CPC because in the opinion of the plaintiff, even if the suit of the plaintiff may not be maintainable, the desired relief can be conferred by the Court under the inherent power conferred by Section 151 CPC. The plaintiff could not insert Section 151 CPC in the suit. The above omission is bona fide and not intentional. The plaintiff, therefore, sought that Section 151 CPC be added. He also sought the amendment that with the word "plaintiff" the word "petitioner" be added. The application was vehemently contested by the defendant-petitioner on the / ground that such amendment cannot be allowed inasmuch as the suit filed by the plaintiff is not obviously maintainable in view of the provisions contained in 0. 23 R. 3-A CPC. He also sought the amendment that with the word "plaintiff" the word "petitioner" be added. The application was vehemently contested by the defendant-petitioner on the / ground that such amendment cannot be allowed inasmuch as the suit filed by the plaintiff is not obviously maintainable in view of the provisions contained in 0. 23 R. 3-A CPC. Faced with dilemma, the plaintiff is seeking the insertion of Section 151 CPC. The amendment cannot be allowed. After hearing both the parties, the learned District Judge, by the impugned which is a short one, has allowed the same. 3. I have heard Shri S.D. Vyas appearing on behalf of the petitioner and Shri K.N. Joshi appearing on behalf of the non-petitioner. 4. Shri Vyis vehemently assailed the impugned order on the ground that the learned District Judge, while passing the above order, did not assign any reason why the proposed amendments were allowed. Every judicial order must contain reasons for its decision. Be that as it may, the amendments sought by the plaintiff-non-petitioner could not have been allowed because the suit filed by the plaintiff-non-petitioner is not obviously maintainable in view of the provision contained in 0. 23 R. 3-A CPC. The defendant-petitioner challenged the maintainability of the suit filed by the non-petitioner on this ground. When the plaintiff realised the above legal position, the proposed amendments were sought. Such an amendment Cannot be allowed in the above suit because it will effect the extinguishment of the suit itself. The relief under section 151 CPC can only be sought in that suit only. On separate application or suit invoking inherent power of the Court is maintainable. By allowing the above amendment, the Court has armed the plaintiff to agitate the plea of inherent power in the above suit which is legally not sustainable. Shri Vyas has relied on Manoharlal Chopra v. Seith Heeralal, AIR 1962 SC 527 , Raja Soap Factory v. S.P. Shanta Raj & Ors., AIR 1965 SC 1449 and Kumar Swami v. D.R. Nanjappa, AIR 1978 Mad. 285 . 5. Shri Joshi has submitted that the plaintiff has sought the airtndment seeking insertion of Section 151 CPC in the suit. He has submitted that the inherent power of the Court can be invoked whenever a situation demands invoking of the same in order to render justice to the parties. 285 . 5. Shri Joshi has submitted that the plaintiff has sought the airtndment seeking insertion of Section 151 CPC in the suit. He has submitted that the inherent power of the Court can be invoked whenever a situation demands invoking of the same in order to render justice to the parties. The inherent power of a Court under section 151 CPC is not intended to enable the Court to confer a right upon a party. The powers are meant to enable the Court to pass such orders for the ends of justice as may be necessary considering the rights which are conferred upon the parties by substantive law. In the instant case the amendment allowed by the Court has not caused any prejudice whatever to the petitioner-defendant inasmuch as the plaintiff could have requested indulgence of the Court to invoke the inherent power even without seeking the above amendment. The amendment sought by the plaintiff is not of a substantive nature but a formal one. It is sort of a relief based on the allegations made inserted in the plaint of the non-petitioner,plaintiff. 6. Shri Joshi also submitted that after passing of the impugned order, the plaintiff filed the amended plaint, the defendant amended written statement and an additional issue has also been framed. Even the plaintiff has produced nine witnesses. The defendant-petitioner did not object when the above procedure was adopted. The petitioner is, therefore, estopped from challenging the amendments allowed by the Court. Shri Joshi also submitted that after the above amendments, an additional issue No. 13 has been struck which will decide whether the plaintiff-non-petitioner can invoke the inherent power of the Court under section 151 CPC. In this revision petition, the Court is not called upon to decide the whether the suit as filed by the plaintiff is maintainable or not because an appropriate issue regarding this aspect of the matter has been framed which will be adjudicated upon at an appropriate time. Shri Joshi has relied on Laxmi Narasimhachari & Ors. v. Shri Agasthe Swara Swami Varu, AIR 1960 SC 622 and Manoharlal v. N.B.M. Supply, Gurgaon, AIR 1969 SC 1267 . 7. I have considered the rival contentions. A perusal of the impugned order shows that the learned District Judge has not assigned reasons for allowing the application filed by the non-petitioner-plaintiff. v. Shri Agasthe Swara Swami Varu, AIR 1960 SC 622 and Manoharlal v. N.B.M. Supply, Gurgaon, AIR 1969 SC 1267 . 7. I have considered the rival contentions. A perusal of the impugned order shows that the learned District Judge has not assigned reasons for allowing the application filed by the non-petitioner-plaintiff. Normally when an amendment application is allowed, it must be followed by reasons for the same. The plaintiff sought amendment of inserting Section 151 CPC in the suit. The proposed amendment is sort of a prayer made by the plaintiff for seeking indulgence of the Court to invoke the inherent power in her suit. The question is not whether the Court can exercise the above power under section 151 CPC in the facts and circumstances of the case because this stage will come later on when the petitioner will be given a full opportunity to challenge the maintainability of the suit. He will also be allowed to contend that the suit of the plaintiff is not maintainable even with the add of Section 151 CPC. By allowing the above amendment, the Court has not clothed the plaintiff-non-petitioner with any right. It only enabled the plaintiff to invoke Section 151 CPC. In my opinion a party is entitled to plead before the Court to exercise the inherent power vested in it under section 151 CPC even orally because as has been observed in Manoharlal v. N.B.M. Supply, Gurgaon that Rules of Procedure are intended to be hand-maid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. 8. In Raja Soap Factory's case, the Apex Court, while interpreting the provisions of Sections 151 & 24 IPC, observed that extra ordinary situation does not confer enlarged jurisdiction on the High Court. Section 151 CPC preserves the inherent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court : it does not, however authorised the High Court to invest itself with jurisdiction where it is not conferred by law. 9. That power may be exercised where there is a proceeding lawfully before the High Court : it does not, however authorised the High Court to invest itself with jurisdiction where it is not conferred by law. 9. In Manoharlal Chopra's case, the Supreme Court observed:- "Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code." 10. I am not impressed by the argument of Shri Joshi that by filing amended written statement and participating in recording of the evidence, the defendant-petitioner is estopped from challenging the amendment inasmuch as the petitioner has not submitted to the order and did not accept the amendment cost tendered by the non-petitioner. 11. My conclusion, therefore, is that the above amendment has not conferred any additional right on the non-petitioner. It has also not caused any prejudice to the defendant-petitioner inasmuch as his right to challenge the maintainability of he suit in view of the provisions contained in 0. 23 R. 3-A CPC remains intact. The amendment has only enabled the non-petitioner-plaintiff to invoke the inherent power of the Court in respect of her suit. Whether the Court can exercise such power in the present suit is a matter for the Court to decide. No comment can be offered in this petition regarding this important aspect of the case. The amendment is not of a substantive nature. It can only be treated to be a relief sought by the plaintiff on the basis of Section 151 CPC. 12. For the above reasons, I do not find any substance in the revision petition and the same is hereby dismissed.Revision Dismissed. *******