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2017 DIGILAW 799 (ALL)

AZAD KHAN v. RIYAJUDDIN

2017-03-21

P.K.S.BAGHEL

body2017
JUDGMENT Hon’ble P.K.S. Baghel, J.—The second appeal arises against a judgment and decree of the appellate Court dated 28.11.2016 passed by the Additional District Judge/ Special Judge (SC/ST Act), Kanpur Nagar, dismissing the appeal and confirming the judgment and decree of the trial Court dated 16.2.2016 passed by the Civil Judge (Junior Division) Kanpur Nagar. 2. The respondent-plaintiff filed a suit for permanent injunction to restrain the defendants from interfering in possession of his House No. 132 of 552, Babupurwa, Kanpur (suit property). 3. The plaintiff’s case is that he is the tenant in the suit property in portion comprising one room, Courtyard and varandah at the rate of Rs. 40 per month. Previously, his father had taken the said accommodation on rent 85 years back. He lived in the said suit property in his life time and after his death the plaintiff is in possession of the said accommodation. He instituted the suit to restrain the landlord from evicting him and he may not cause any interference in his possession. 4. During the pendency of the suit the appellant Nos. 1 and 2 Azad Khan and Naushad Khan moved an application under Order I, Rule 10 and Order-XXII, Rule 10 read with Section 151 C.P.C. on the ground that they have purchased the suit property vide sale-deed dated 11.12.2012 from the defendant No. 1 Sajida Khatoon hence they may be impleaded as party in the suit. 5. The plaintiff filed an objection on the ground that the defendant No. 1 had no right to execute the sale-deed hence the sale-deed dated 11.12.2012 is void and non est. The trial Court vide its order dated 16.1.2015 allowed the application of the appellant (third party) and granted a week’s time to amend the memo of parties. 6. The plaintiff did not comply with the order dated 16.1.2015 passed by the trial Court as he did not amend the memo of parties and the appellant third party was not impleaded in the suit. The third party had also filed their W.S., although they were not impleaded. 7. The trial Court, granted several opportunities to the plaintiff for compliance of its order. The trial Court vide its order dated 16.2.2016 dismissed the suit on the ground that the plaintiff was absent on several previous dates and he has not complied the order of the Court dated 16.1.2015. 8. 7. The trial Court, granted several opportunities to the plaintiff for compliance of its order. The trial Court vide its order dated 16.2.2016 dismissed the suit on the ground that the plaintiff was absent on several previous dates and he has not complied the order of the Court dated 16.1.2015. 8. The appellant-third party moved an application 47-Ka stating that the trial Court on 16.1.2015 had allowed the impleadment application but the plaintiff is not appearing in the suit and it appears that he does not want to proceed with the suit hence a prayer was made that the applicant be allowed to carry out the order of the trial Court dated 16.1.2015. 9. The trial Court rejected the said application vide is order dated 16.2.2016 on the ground that the plaintiff was absent on several dates and in absence of the plaintiff, the suit cannot proceed. It was further observed that since the plaintiff has not complied the previous order dated 16.1.2015, therefore, the applicant, the third party is yet to be impleaded in the suit. 10. As regards the claim of the third party to consider his counter claim was also rejected by the trial Court on the ground that the suit cannot proceed in absence of the plaintiff who has not impleaded the third party/ appellant. 11. Aggrieved by the judgment and decree dated 16.2.2016 the third party (appellant) preferred a regular first appeal being First Appeal No. 40 of 2016. The appellate Court has taken the view that unless the memo of the parties is not amended, the third party has no locus as they are yet to be impleaded in the suit. Accordingly the appeal has been dismissed. 12. Learned counsel for the appellants submits that both the Courts below have failed to consider the counter claim of the appellants and the counter claim is treated to be a cross suit in itself in terms of the provisions of Order VII Rule 6-A (2)(3) & (4) of the Civil Procedure Code. 13. Next, it is submitted that even if the plaintiff is not pursuing his suit yet, the counter claim of the appellant ought to have been considered by both the Courts below. 13. Next, it is submitted that even if the plaintiff is not pursuing his suit yet, the counter claim of the appellant ought to have been considered by both the Courts below. Lastly, it was urged that amending the memo of the parties was a ministerial act by incorporating amendment and the failure of the plaintiff to do so cannot prejudice the cause of the third party. 14. I have heard learned counsel for the appellants and perused the record. 15. Admittedly, the plaintiff was not attending the Court and he did not comply the order dated 16.1.2015 to amend the memo of the parties. If the plaintiffs do not want to pursue his suit, they cannot be compelled to contest the case. The submission of learned counsel for the appellants that the appellate Court has wrongly held that counter claim of the appellants has been rejected, I find that the said submission has no force. 16. From the perusal of the order of the trial Court and the appellate Court it is evident that both the Courts have not adjudicated the counter claim of the appellants on merit hence there is no question of its rejection by the Courts below. 17. I find that both the Courts below have rightly recorded the findings that the appellants have no locus as the memo of parties was not amended by the plaintiff and he was not present on the date fixed. In his absence the trial Court has rightly dismissed the suit. Order VI, Rule 18 C.P.C. provides that if a party fails to comply the direction of the Court and does not amend in terms of order of the Court, he shall not be permitted to amend after expiry of the time allowed by the Court. For the sake of convenience the said provision is quoted below: “18. Failure to amend after Order.—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.” 18. On a plain reading it becomes clear that if a party has failed to comply the order within the time frame, he shall not be permitted to carry out the amendment. Of course the Court has power to extend the time. In this case no application was moved by the plaintiff for extension of time. As noted above the plaintiff was not present on the dates fixed. The provision of Order XVI, Rule 18 was inserted by Act 22 of the 2002. The intention of the legislature is clear that there should not be delay in deciding the suit by taking recourse to delaying tactic. 19. In the light of above discussion, I find that the findings recorded by the Courts below do not suffer from any illegality. 20. In addition to above, no substantial question of law has been raised in the appeal. Since the appellants have not been treated to be party in the suit no prejudice has been caused if their counter claim has been adjudicated by both the Courts below in absence of the plaintiff and for non-compliance of the order of the Court. The Supreme Court in the case of State Bank of India and others v. S.N. Goyal, AIR 2008 SC 2594 , has laid down the law in respect of ‘Substantial Questions of Law’. The relevant part of the judgment of the Supreme Court is extracted herein below: “(9.1) Second appeals would lie in cases which involve substantial questions of law. The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ‘Substantial questions of law’ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower Court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance....” 21. The Supreme Court in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and others, (2010) 13 SCC 216 , has reiterated the same principles. 22. In view of the above, the appeal lacks merits. It is, accordingly, dismissed. 23. No order as to costs.