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Jagdish Chander and anr. Vs. Bakshi Chatarpal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 45 of 1973
Judge
Reported in11(1975)DLT97
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantJagdish Chander and anr.
RespondentBakshi Chatarpal Singh and ors.
Advocates: Goja Nand,; J.P. Gupta and; Gurcharan Singh, Advs
Cases Referred(See Shamu Patter v. Abdal Kadir Ravulhan.) It
Excerpt:
.....giving proper opportunity to the parties - the court also set aside the direction allowing suo motu amendment and accepted the revision. - - on or about 29th april, 1972 an application was filed purporting to be under section 151 of the code of civil procedure for framing an issue as under :isthe application not maintainable because the defendants are bound by the decree which was passed against their partners on coatest ?' it was alleged in the application that a very important legal objection to the maintainability of the judgment-debtors' application under order 9 rule 13 was lost sight of ;that defendants 1 to 8 were served as partners and some of them chose to contest while other like the present petitioners did not choose to fight the case personally it was submitted that..........since the final arguments have not been heard, i think it better to allow the plaintiffs so suo motu amend the reply filed by him to the application under order 9 rule 13cpc and to raise a plea specifically...... but the decree holder is allowed in the discretion of this court to amend the reply filed by him to the application under order 9 rule 13cpc and to raise the objection under the present application but cond tionally on payment of rs. 20.00 as costs. to come up on 14th november, 1972 for amended reply.'(5) the judgment-debtors refused to accept the costs and have come up to this court in revision. the learned counsel for the petitioners, shri gaja nand, has argued that the court could not suo motu allow the amendment. it was submitted that the amendment could be allowed only.....
Judgment:

Yogeshwar Dayal, J.

(1) This is a petition for revision against the order of the trial court dated 13th October, 1 972, whereby the trial court suo motu allowed an amendment in a reply filed by the plainuffs-decree-holders to the application filed by the petitioners under Order 9 Ruls 13 Civil Procedure Code for setting aside the decree passed against them and to raise a new plea subsequently.

(2) The decree dated 25th November, 1966 was pasted against the petitioners and respondents 2 to 10 for money where the present petitioners were judgment-debtors Nos.7 and 9. On the petitioners coming to know the decree they filed an applicat on under Order 9 Rule 13 read with section 151 of the Code of Civil Proeedure for setting aside the decree passed on 25th November. 1966.

(3) It was alleged in the application that the pstitioners had come to know of the decree on or about 9th December, 1968 It was pleaded that they were not served at all in the suit and had no knowledge of any kind whatsoever about the proceedings of the sdit It was submitted that in spite of non-service exparte proceedings were taken against them and exparte decree was passed which was liable to be set aside. The application was filed on or about 1st January, 1969 and reply to the same followed by a replication was also filed. Volumunous evidence was recorded and the case was thereafter posted for arguments from time to time. On or about 29th April, 1972 an application was filed purporting to be under section 151 of the Code of Civil Procedure for framing an issue as under :

'ISthe application not maintainable because the defendants are bound by the decree which was passed against their partners on coatest ?'

It was alleged in the application that a very important legal objection to the maintainability of the judgment-debtors' application under Order 9 Rule 13 was lost sight of ; that defendants 1 to 8 were served as partners and some of them chose to contest while other like the present petitioners did not choose to fight the case personally It was submitted that from the contents of the plaint and the judgment it would be seen that the decree was against all the persons who remained in the firm after the plaintiffs-decree holders retired and who constituted the new partnership. It was further submitted that it is misnomer to call it an ex-parte decree and as stated earlier the aforesaid additional issue was sought to be framed.

(4) The trial court by the present order held that the issue sought to be raised is not a ouce question of law but it is a mixed a uestion of law and fact and where the contention of the decree holders is as to the nature of decree on the basis of the pleadings it cannot be decided or touched upon at that stage, and dismissed the application but at the end of the order it observed as under :-

'HOWEVER,this is a technical plea and since the final arguments have not been heard, I think it better to allow the plaintiffs so suo motu amend the reply filed by him to the application under order 9 Rule 13CPC and to raise a plea specifically...... but the decree holder is allowed in the discretion of this court to amend the reply filed by him to the application under Order 9 Rule 13CPC and to raise the objection under the present application but cond tionally on payment of Rs. 20.00 as costs. To come up on 14th November, 1972 for amended reply.'

(5) The judgment-debtors refused to accept the Costs and have come up to this Court in revision. The learned counsel for the petitioners, Shri Gaja Nand, has argued that the court could not suo motu allow the amendment. It was submitted that the amendment could be allowed only on a proper application being filed under Order 6 Rule 17 of the Code of Civil Procedure for leave to amend the reply along with the proposed amended reply and thersafter a reply being called for from the petitioners and decision baing given in accordance with the well stablished principles for allowing or disallo wing amendment to the pleadings. It was submitted that under Order 6 Rule 17 of the Court could not suo motu amend the pleadings and it must be amended only under the circumstances of the case on a proper application being filed.

(6) The amendments of the proceedings and pleadings in courts have been dealt with under the Code of Civil Procedure in various parts thereof- (1) Section 152 deals with amendments of judgments, decree and orders. (2) Section 153 confers a general power on the Court to amend any defect or error in any proceeding in a suit. (3) Order 1, Rule 10 provides for the amendment of a plaint by striking off or adding parties to a suit. (4) Order 6, Rule 16 deals with the compulsory amendment of the opponent's pleading. (5) Order 6 Rule 17 deals with the amsndment, with leave of the Court, by a party of his own pleading. (6) Order 14, Rule 5 deals with the amrnfmrny of the issues framed in the case. Section 153 and Order 6 Rule 17 of the Code of Civil Procedure provide as under: Section 153

'THECourt may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit ; and all necessary amendments shall be made for propose of determining the real question or issues raised by or depending on such proceeding. 0.6 R. 17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necassary for the purpose of determining the real questions in controversy between the parties. (2) Every application for amendmeat shall be in writting and shall state the specinc amendments, which are sought to br made indicating the words or paragraphs to be added, ornitted or substituted in the original pleadings'

(7) It will be noticed that under section 154 of the said Code the Court has been given power to even suo motu amend any defect or error in any proeceding in a suit. The term 'proceeding' in this section has always been interpreted as including any application to a Court of Iustice for aid in the enforcement of rights, for reliefs, for redress of injuries etc But that power, as noticed from the wordings of the section itself is limited to the removing of defects or errors.

(8) Again, the wordings of Order 6 Rule 17 of the Code of Civil Procedure show that recourse to it can only be taken on an application of the party and the Court cannot suo motu exercise any power there under. A proper application has to be filed as contemplated by sub-rule (2) of Order 6 Rule 17. It will also be noticed that the aforesaid rule consists of two parts (a) That the Court may, at any stags of the proceedings, allow either party to alter amend its pleadings in such manner and on such terms as may be just ; and (b) that all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties shall be made.

(9) Dealing with the analogous provision as to amendment of issues, namely Order 14 Rule 5, their Lordships of Privy Council observed that the first portion of that rule left the matter of amendment of the issues entirely to the discretion of the Court, while the second portion made it imprative on the Court to make all such amendments as may be necessary for the purpose of determining the real matter in controversy between the parties (See Shamu Patter v. Abdal Kadir Ravulhan.) It will thereforee not be wrong in construing order 6 Rule 17 which is also in the same terms as Order 14 Rule 5 of the Code, of interprete it in the light of the observation made by the Privy Council in the aforesaid case. It is for the court to decide in each case whether to allow the amendment or not ; to decide whether the amendment sought falls in the first part of the rule or in the second part according to the well established rules of exercise of discretion in such matters. It is clear that the power under Order 6 Rule 17 cannot be exereised by the Court suo metu. Such a power can be exercised only under section 153 of the Code of Civil Procedure. The power of amendment of the pleadings is specifically provided for in the Code under section 153 and Order 6 Rule 17 and thereforee Court cannot look to any inherent powers of the Court. The power under section 153 is restricted to amendment of any defect or error which the Court may even suo motu correct whereas the amendment of the pleadings under Order 6 Rule 17 cannot be done suo motu. For, the Court wanting to do Justice may invite attention of the parties to the defects of the pleadings so that they could bs remedied and the real issue between the parties tried. Under the guise of inherent powers, of a Court it cannot override the express provisions of law. where express procedure is prescribed it has to follow that procedure the provisions of Order Rule 17 are exhaustive of the matter dealt with by it and recourse cannot be had to any other inherent powers of the Court. The Code does not authorise the Court to ask the parties to amend their pleadings su motu so far as the giounds of attack or the grounds of defense are concerned. Order 6 Rule 17 makes provision for amendment of pleadings Hence, for the purposes of amendment leave to amend his pleadings is to bs sought from the Court by a party and thereafter the Court on determining whether in the circumst ances of the case leave should be granted to the party for making the proposed amendment of the pleadings or not will exercise its discretion to allow or not to allow the amendment.

(10) In the present case the Court itself allowed the amendment of the reply of the decree holders by inserting a new defense which was never taken in the earlier reply. This the court could not have done. At the most the court could have suggested to the party to seek amendment and thereupon the court would have decided whether amendment should be allowed or not.

(11) It was urged by Shri Gurcharan Singh, learned counsel for the decree holders that courts ordinarily allow amendments and thereforee even if the court has suo motu allowed the amendment this Court should not interfere in revision It will be noticed that it is the justice of the cause which has to be the guiding factor to exercise discretion for allowing or disallowing an amendment. This justice has to be justice for both the parties and it cannot be assumed that the court is bound to grant an amendment. The court will grant or refuse to grant an amendment in accordance with the provision of Order 6 Rule 17. In the present case it transpires from the Order sheets that the applieation was filed by the decree holders for framing of additional issues and without any opportunity to the petitioners the court exercised suo motu power to allow a very controversial amendment. No doubt, the court could allow such amendment but only after proper opportunity was given to the parties. In the present case it is not clear whether the petitioners were even heard on the question of allowing the proposed amendment. This is an addtional reason for me to set aside the impuged direction of allowing suo motu amendment. No party can be condemned unheard. This is the basis principles of the entire system of justice. I, thereforee, accept the present revision petition and set aside the direction allowing amendment of defense as suggested in the application of the decree-holders and as accepted by the trial court in the last paragraph of its order. Parties are, however, left to bear their own costs.


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