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Pahali Raut Vs. Khulana Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 274 of 1981
Judge
Reported inAIR1985Ori165; 60(1985)CLT33; 1985(I)OLR370
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 6, Rules 18 and 19
AppellantPahali Raut
RespondentKhulana Bewa and ors.
Appellant AdvocateM.M. Sahu and ;Bhimsen Sahu, Advs.
Respondent AdvocateR.N. Sinha, ;S.N. Sinha and ;P.K. Routray, Advs.
DispositionRevision allowed
Cases ReferredIn Rahmat Bi Saheba v. R. Krishna Doss Lala
Excerpt:
.....the code is as follows :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 ofsuch limited time as aforesaid, or of such fourteen days, as the case may be, unless the time is extended by the court. (c) failure to amend within the time as in clause (b) debars the party who has obtained leave to amend (d) unless time is extended by the court, that is to say, in appropriate cases, the court may extend the time. the second part imposes a penalty upon the party who has obtained the leave to amend the plaint but has failed to do so..........as he desired them to be. the alterations or additions are in accord with the leave granted. sometimes amendments are extensive. incorporation thereof into the existing pleadings may be difficult. and it would not be proper to permit the office to touch the pleadings. the responsibility should be of the party.6. but the courts in various jurisdictions in the state do not follow the provision contained in rule 18 strictly. a firm and consistent practice is lacking. very often amendments are carried out by the office. the courts are not unaware of this practice. of course such cases generally involved minor and not extensive amendments. but the law as it stands makes no distinction.7. it should not be forgotten that the practice sometimes lulls the party and his counsel into inaction and.....
Judgment:

R.C. Patnaik, J.

1. The short question that falls for consideration in this revision under Section 115 of the Code of Civil Procedure at the instance of defendant No. 6 is if the trial Court had jurisdiction to extend time to enable defendant No. 6 whose application for amendment of the written statement had been allowed earlier to carry out the amendment long after the expiry of the period of fourteen days prescribed under Order 6, Rule 18 of the Code.

2. By order dated 18-12-79 defendant No. 6's prayer for amendment of written Statement was granted subject to payment of cost. Cost was paid the next day. No time having been fixed for carrying out theamendment by the order, the same was to be carried out within fourteen days from the date of the order. Defendant No. 6, however, did not amend his written statement. The matter rested like that until it was discovered much later i.e, at the state of argument that the amendment had not been incorporated in the written statement of defendant No. 6. He filed an application under Section 151 of the Code of Civil Procedure on 25-4-81 for carrying out the amendment which the officer had failed to carry out. Being of the view that it was defendant No. 6 who was to carry out the amendment and not the office, the Court rejected the application.

3. Mr. Sahoo, the learned counsel for the petitioner, has submitted that the Court by its order did neither direct defendant No. 6 to carry out the amendment nor did it fix any time for the purpose. In many cases the amendments are carried out by the office. As the amendment was not extensive, defendant No. 6 remained under the impression that after his prayer for amendment was allowed, the same would be effected by the office. He has urged that in the facts and circumstances, when a request was made under Section 151 of the Code for giving effect to the order, the Court in the interest of justice should not have refused the prayer.

4. Mr. R. N. Sinha, the learned counsel for the opposite parties, has referred me to the provision contained in Rules 17 and 18 of Order 6 and resisted the submission of the learned counsel for the petitioner. He has submitted that having regard to the provisions contained in Rule 18 of Order 6, the party whose prayer for amendment is allowed is to carry out the amendment and if the same has not been done within the time fixed by the order or within fourteen days from the date of the order, if no time has been fixed specifically, the amendment shall not be carried out, that is to say, it shall be deemed as if the prayer for amendment had not been allowed.

5. Order 6, Rule 18 of the Code is as follows :

'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 ofsuch limited time as aforesaid, or of such fourteen days, as the case may be, unless the time is extended by the Court.'

The provision may be broken up into the following : (a) Where a party has obtained leave to amend under Order 6, Rule 17, the party has to amend his pleadings; (b)(i) within the time limited for that purpose by the order, or (ii) within fourteen days from the date of the order if no time during which the amendment is to be carried out is specifically fixed; (c) failure to amend within the time as in clause (b) debars the party who has obtained leave to amend (d) unless time is extended by the Court, that is to say, in appropriate cases, the Court may extend the time.

It is, therefore, indisputable that the amendment is to be carried out by the party and not by the Court or its office, the logic being that the pleadings are of the parties verified by them. Having obtained the leave to amend, it is his responsibility to carry out the amendment and to be sure that his pleadings are in the form and manner as he desired them to be. The alterations or additions are in accord with the leave granted. Sometimes amendments are extensive. Incorporation thereof into the existing pleadings may be difficult. And it would not be proper to permit the office to touch the pleadings. The responsibility should be of the party.

6. But the Courts in various jurisdictions in the State do not follow the provision contained in Rule 18 strictly. A firm and consistent practice is lacking. Very often amendments are carried out by the office. The Courts are not unaware of this practice. Of course such cases generally involved minor and not extensive amendments. But the law as it stands makes no distinction.

7. It should not be forgotten that the practice sometimes lulls the party and 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.

8. The next question then is what is the way out where amendment has not been carried out by the party after obtaining leave within the time limited by the order or within fourteen days from the date of the order wherethe time is not specified? Is the law that harsh and relentless? The last clause of Rule 18 comes to the rescue of the unwary party -- 'unless time is extended by the Court'; even otherwise Section 151 of the Code of Civil Procedure would in appropriate case come to his aid.

In Dandapani Goudo v. Khetrabasi Goudo (1972) 2 Cut WR 1428. a Division Bench of this Court after referring to Rule 18 of Order 6, observed:

'.......The first part refers to carrying outamendment of the plaint after obtaining leave for the same within the time specified in the order granting leave to amend or, if no such time has been fixed then within 14 days from the date of the order. The second part imposes a penalty upon the party who has obtained the leave to amend the plaint but has failed to do so within the time specified in the rule, by debarring him from amending the plaint unless time is further extended for the purpose by the Court.'

In Dandapani's case an application was filed, in course of hearings of the appeal by this Court, for extension of time to carry out the amendment as the same had not been carried out in the Court below. This Court taking the facts and circumstances into consideration extended time to carry out the amendment.

In Nareshchandra Chinubhai Patel v. State of Gujarat, AIR 1977 Guj. 109, Sheth, J. after referring to Rule 18 observed (Para 3) :

'A plain reading of this rule, in my opinion, leaves no doubt, that this rule contemplated two categories of cases. One category of cases was a category of cases, where a party obtaining an order for leave to amend did not amend accordingly within the time limited for that purpose by the order. It will mean a category of cases where the Court had fixed or granted time to amend the pleading and the party who obtained such an order for leave to amend did not amend it within the period so granted or fixed by the Court. It also contemplated a category of cases where no time was limited. Then the statute fixed that time by stating, that in such cases where no time is limited then a party obtaining such leave to amend has to amend within fourteen days from the date of the order. Thereafter, a party who does not act accordingly, embargo is placed and that embargo is that such a party will not he permitted to amend after the expiration of such limited time as afore-said or of suchfourteen days, as the case may be, unless the time is extended by the Court........'

The learned Judge was of the view that time could be extended even under Section 151 to carry out the amendment if the circumstances warranted.

In Banku Ramulu Patrudu v. Konda Narayana Raju, AIR 1962 Andh Pra 527, leave to amend was granted by the revisional Court. It was not carried out. The mistake was discovered in the trial Court and an application was made to the trial Court for extension of time, and it extended the time and the amendment was carried out. Objection was raised to the jurisdiction of the trial Court to extend the time when leave to amend was granted by the revisional Court. The learned Judge observed (at P. 528) :

'....Though this has been wrongly carried out it cannot but be held to be bona fide, and in any case such as could be condoned, if necessary, by the exercise of the inherent powers vested in this Court under Section 151 C.P.C. for the purpose of meeting the ends of justice.'

'In Rahmat Bi Saheba v. R. Krishna Doss Lala, AIR 1940 Mad. 641, leave was granted but the amendment was not carried out. Later on an application was filed for extension of time and the Court on the said application directed the officers of the Court to carry out the amendment and that was done. In such circumstances, the Court held that 'there was sufficient compliance of Order 6, Rule 19'.

9. The aforesaid discussion shows that it is the obligation of the party to carry out the amendment where leave to amend has been granted, within the time specified by the order or, within fourteen days from the date of the order where time is not so specified. Lest the party be indifferent or rest on his oars the embargo is put that unless the amendment is carried out aforesaid, the party shall be debarred from amending his pleadings. But the harshness of the provision is mellowed by clothing the Court with jurisdiction to extend time in fit cases; even otherwise there is the saviour provision in Section 151 of the Code of Civil Procedure. However, extension should not be a matter of course but would depend upon facts and circumstances.

10. We cannot be oblivious of facts of life, namely, the parties in Courts are mostly ignorant and illiterate -- unversed in law.Sometimes their counsel are also inexperienced and not properly equipped : Thanks due to sub-standard teaching and instructions imparted in most of our law colleges and the system of law examination where of late resort to malpractice is quite extensive.

11. The facts and circumstances of the case compel me to take a liberal view of the matter and to hold that the trial Court ought to have extended time and permitted defendant No. 6 to amend his pleadings for, the endeavour is to ascertain the truth to do justice. Not much injustice would be caused to the other side if the time was extended. The inconvenience suffered by the other side could be compensated by cost.

12. I would, therefore, vacate the order and extend the time permitting the defendant No. 6 to amend his pleadings subject to payment of Rs. 300/- as costs to opposite party No. 1 within one month from today, failing which the order of the Court below shall stand and the leave to amend already granted by the Court on 18-12-79 shall stand dissolved. If the amount is paid within the time fixed, defendant No. 6 shall carry out the amendment in the Court below within two weeks from (sic).

13. The revision is accordingly allowed. In the facts and circumstances, there would be no order for cost of this revision here.


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