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2007 DIGILAW 268 (ORI)

HARACHAND NAYAK v. RAMAMANI MOHAPATRA

2007-04-16

A.S.NAIDU

body2007
( 1 ) PETITIONERS are plaintiffs in T. S. No. 226/1986 pending before the Civil judge (Sr. Division), Jaipur. During pendency of the suit a petition was filed under order 6, Rule 17, CPC to amend the plaint. The same has been rejected mainly on the ground that in consonance with the provision of Order 6, Rule 17, cpc after commencement of hearing of a suit, no amendment should be allowed. According to Mr. Mishra, learned counsel for the petitioners, the conclusion arrived at by learned Civil judge (Sr. Division), Jajpur is not in consonance with law. ( 2 ) HEARD learned counsel for the petitioners at length. Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 deals with repeal and savings. Sub-section (1) of 'section 16 stipulates that any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed'. Sub-section 2 (b) of Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 reads as follows : "2 (b ). The provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil procedure (Amendment) Act, 1999 and Section 7 of this Act. " ( 3 ) THE aforesaid provisions make it abundantly clear that the proviso which was inserted in the year 2002 by the Code of Civil procedure (Amendment) Act, 2002 shall not apply to suits which were filed earlier. This court is also fortified by a decision of the supreme Court in the case of State Bank of Hyderabad v. Town Municipal Council reported in 2007 (1) Orissa LR (SC) 406. ( 4 ) THE case at hand is of the year 1986 and the amended provision of under Order 6, Rule 17, CPC shall not be applicable. The court below had lost sight of the aforesaid provision. ( 4 ) THE case at hand is of the year 1986 and the amended provision of under Order 6, Rule 17, CPC shall not be applicable. The court below had lost sight of the aforesaid provision. However admitting the writ petition and issuing notice to the opposite parties who are more than 48 years would cause unnecessary delay. I therefore dispose of this writ petition giving liberty to the petitioners to file a fresh petition before the said Court seeking amendment of the plaint which shall also be disposed of by the Court below without being influenced by any of the observations made by the earlier order. This order being passed without issuing notice to the opposite parties, liberty is granted to them to approach this Court, if they are aggrieved. Order accordingly.