V.S. Deshpande, J.
(1) These four references to a larger Bench involve the question of a correct construction of section 53 of the Land Acquisition Act, 1894 (hereinafter called as 'the Act') which is as under :-
'SAVEin so far as they may be inconsistent with anything contained in this Act, the provision of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act.'
(2) Section 53 of the Act may be analysed as below :-
(1)It applies only to proceedings before the Court under the Act. These proceedings are to be distinguished from proceedings before the Collector of other authorities under the Act. In the present case we are concerned with proceedings which came before the court by way of references under section 18 of the Act. Section 3(d) of the Act defines the expression 'Court' to mean a principal civil Court of original jurisdiction.
(2)The rule is that the provisions of the Code of Civil Procedure apply to all proceedings before the Court.
(3)The exception to the rule is made by such provisions of the Act, which may be so inconsistent with the provision of the Code of Civil Procedure as to make the Civil Procedure Code provision inapplicable to a proceeding before the court under the Act.
(3) More specifically two questions have arisen from these references :-
1.(a) Whether the provisions of Order Ix Rule 9 of the Code of Civil Procedure apply to a proceeding before the court under the Act.
(B)If they do, wheather the provisions of the Limitations-Act prescribing periods of limitation within which applications under Order Ix, Civil Procedure Code, have to be made . also apply to applications made under Order Ix in a proceeding before the Court under the Act in the same way as they apply to proceedings pending before a court under the Civil Procedore Code.
2.Whether the provisions of Order Vi Rule 17, Civil Procedure Code, apply to a proceeding pending before the court under section 18 of the Act.
(4) In Civil Revisions 167, 168 and 169 of 1974 orders sought to be revised were passed by an Additional District Judge, Delhi. References by three sets of persons were pending before him under section 18 of the Act. All these persons had engaged the same counsel, one Mr. B. D. Behal, to represent them before the Court. Since neither the petitioners nor their counsel, Mr. Behal, appeared before the Court on the date on which the cases were fixed for hearing, the references under section 18 were dismissed for default by the Additional District Judge. The applications made under Order Ix Rule 9, Civil Procedure Code, read with section 53 of the Act by the petitioners were supported on the common ground that for various reasons the petitioners personally were unable to appear in the court, but they had engaged Mr. Behal as counsel for such appearance. It was alleged that Mr. Behal. was negligent in not appearing before the Court when the cases were called for bearing. It was urged that the petitioners should not be penalised for the negligence of Mr. Behal and the negligence erf the counsel should be regarded as sufficient cause for the non-appearance of the parties in the court. The applications under Order Ix Rule 9, Civil Procedure Code, were dismissed by the Additional District Judge on the ground that no sufficient cause for the non-appearance of the petitioners in the Court was made out and that the negligence of the petitioners' counsel in not appearing in the Court was not a sufficient cause for non-appearance of the parties.
(5) In the Full Bench decision of this Court, to which one of us (V.S. Deshpande J.) was a party, it has been held that the provisions of Order Ix, Civil Procedure Code, apply to proceedings before the court under this Act. The effect of section 53 of the Act is to put a person applying for a reference to be made under section 18 of the Act in the same position as that of the plaintiff in a suit. The words 'inconsistent with anything contained in this Act' used in section 53 of the Act have to be construed reasonably. The mere fact that in a suit the parties are called plaintiff and defendant, while in a proceeding under section 18 of the Act the person applying for the reference may be called an applicant or 'person interested', as defined in section 3(b) of the Act does not mean that the provisions of section 18 are so inconsistent with the provisions of Order Ix that the latter cannot be made applicable to a proceeding in a court under the Act. If such a meaning were to begiven to the word 'inconsistent', then no provision of the Code of Civil Procedure is likely to apply to a proceeding in the court under the Act. This would make section 53,a. dead letter. 'There would be no procedure available for conducting the proceedings before a court under the Act. This would defeat the intention of the legislature in enacting section 53 which was to make the procedure laid down in the Code of Civil Procedure available for application to the proceedings before the Court under the Act. thereforee we have to deem an applicant under section 18 as being in the position of a plaintiff and the Collector and the Union of India who opposed the application, as being in the position of the defendants. This is sufficient to dispose of the argument of the respondent's learned counsel before us that the provisions of Order Ix are. inconsistent with the scheme of section 18 of the Act read with the other provisions of the Act and thereforee, the provisions of Order Ix are not applicable to the proceedings before a Court under section 18 of the Act.
(6) Another argument against the applicability of Order Ix to a proceeding a Court under section 18 of the Act, which was made as follows : The references under section 18 is made by the Collector. It is, thereforee, . the .statutory duty of the Court under section 18 to adjudicate upon the reference, .Such a reference need not. be pursued by a party. The non-appearance of a party should not, thereforee, result in the dismissal of such a reference. In our view, this proposition is too broadly stated. We may classify references into two categories. Firstly, there .are references made by statutory authorities or, Court to a superior court to obtain the latter opinion on a question of law. It is this reference which is truly made in pursuance of a statutory duty. It has also to be answered by way of a statutory duty. If is not necessary for any party to pursue such a reference. It is true that parties who are interested in pursuing or opposing the reference would be notice and would beheard by the Court before giving its opinion. But, this is merely with aview to render assistance to,the Court. Even if the parties refuse to give such an assistance, the Court would have to copsider the question of law and give its opmion. No question of the non-appearance of a party and dismissal of a reference for default can arise in such a case. Instances of such reference may be found in the various taxation laws, such as Income-tax Act and the Sales-tax Act.
(7) Secondly, there are references which, , though made through Courts or authorities, are primarily in the nature of litigation between two parties. These are not in a position different from the position of a suit? Examples of such references are reference made under section 20 of the Arbitration Act by Court or a reference under Section 18 of the Land Acquisition Act. In neither of these cases is the statutory authority or the court making the reference interested, nor is the Court to whom the reference is made is interested and no question of statutory duty arises. The only duy of the Collector is to make the reference desired by the person interested. But, thereafter neither he nor the 'Court under section 18 is under any statutory obligation. Notices are issued to the parties under section 20 of the Act in their own interest. The parties are not summoned for assisting the Court by arguing a question of law, but only to put forward their own case, which is to be decided by the Court. 'These kind. of references are in the position of ordinary litigations and they can, thereforee, be dismissed for default of the appearance of the parties.
(8) On the merits of the applications made under Order Ix Rule 9, Civil Procedure Code, for setting aside the ex parte orders of dismissal of the references the reasonable view of law seems to be as follows :- Under Order Iii Rule 1, Code of Civil Procedure, appearance in a case is any court may be made either by the party or any person or by his counsel. It is not necessary that the party must appear in person, if the party has made adequate arrangement for being repesented by a counsel. This is the crux of the matter. If the party has engaged a counsel, paid his fees and has property ensured that there is no legitimate excuse for the counsel hot to appear on behalf of the patty when the case is called for hearing, then the party has done all that he was expected to do. If the counsel does not appear and the case is dismmised for default of the counsel, two remedies are open to the party and/or the counsel. Firstly, it may be shown that the the counsel had sufficient cause the not appearing in the court when the case was called for hearing Secondly, the party may show that he had done all that Was expected of him to arrange for his appearance through a counsel and that the counsel was negligent in not appearing and that the party shold not be penalised for the negligence of the counsel. This ground is more difficult to prove in support of an application under Order Ix rule 9, Civil Procedure Code. For, a counsel who is negligent would be liable to the party for breach of contract and may also be liable for unprofessional conduct. The Court has to be careful, thereforee, is adjudicating on such a plea by the party, The Court would not be safisfted by a mere oral statement of the party that he had engaged a counsel for appearance and that the counsel was negligent in not appearing and, thereforee, there was sufficient cause for the non-appearance of the party even though there may be no sufficient cause for the non-appearance of the counsel. Acceptance of such a plea amounts to a finding that the counsel was negligent and was liable to incur the multiple penalities of such negligence. Such a finding cannot be arrived at merely on the uncorroborated word of the party. Such e-videace of the party is self-interested. More evidence should be available before negligence could be attributed to a counsel. Normally the counsel should himself be summoned as a witness. He would be in the best position to say why he could not appear when the case was called. It would be then for the court to find out if he was negligent. At that time the Court would also be able to ascertain whether the party had done all that he could to ensure the appearance of the counsel. Merely engaging a counsel is not sufficient. The relationship between the party and the counsel is one of contract. Once the terms of the contract are fulfillled by both the parties including the payment of fees of the counsel, then only the counsel becomes liable to the party for performance of the contract. Otherwise, it cannot be said that a party has done all that he was expected to do to ensure the appearance of the counsel in the Court
(9) In the cases before us, the parties pleaded that they relied upon their counsel, Mr. Behal, for appearance in the Court and Mr. Behal kept on telling them that! he was looking after the cases even though the cases had been dismissed for default for his non-appearance. They say that they should not be penalised for the n,egligence of their counsel. However, the issue whether these petitioners had fulfillled the terms of their contracts with their counsel and whether it was the counsel who was negligent in not appearing in the Court when the cases were called for tearing was not raised by the learned Additional District Judge. The reason was that the learned Judge was of the view that assuming that the counsel was negligent this was not a sufficient cause for the non-appearance of the parties. Since we have expressed the view that the learned Judge was not right in taking such a view, it follows that an opportunity has to be given to the petitioners to prove before the learned trial Judge that they had fulfillled the terms of their contracts with Mr. Behal and that the non-appearance of Mr. Behal in the Court when the cases were called for hearing was due to his negligence. These cases will have, thereforee, to be remanded to the learned Additional District Judge for the trial of this issue and for hearing the parties and giving his finding on the same, and thereafter disposing of the references in the light of this judgment generally and his finding on this particular issue.
(10) If the petitioners fail to show before the Additional District Judge that the dismissal of the references for default was due to the negligence of their counsel, it would not be open to them to shew that they themselves had intended to appear, but they bad sufficient cause for not appearing in the Court' For, their excuses for nonappearance, such as illness, etc. have already been disbelieved by the Court.
(11) Question 1(b) It is to be noted that unlike Order Xxii Rule 3, Civil Procedure Code, Order Ix Rule 9 does not indicate any period of time during which ari application there under has to be made. Order Xxii Rule 3, Civil Procedure Code, requires an application to be made there under within the time limited by law. This is to be inferred from the language of sub-rule (2) of Rule 3 of Order Xxii, which is as follows :
'WHEREwithin the time limited by .law no application is made under sub-rule (1), the suit shall abate...............'
The words 'within the time limited by law' are in the nature of legislation by reference. These words incorporate in Order Xxii Rule 3 the period of limitation which is prescribed by the relevant legislation, the Limitation Act in the present cases. To avoid, the abatement of a suit, it is necessary not only that an application should be made for causing the legal representatives of the deceased to be brought on record, but also that such an application must bemade 'within the time limited by law'. This brings in Article 120 of the limitation Act, 1963, which corresponds to Article 176 of Schedule I of the Limitation Act, 1908. It is true that thiprovision of the Limitation Act speaks of an application made under the Code of Civil Procedure and also refers to a plaintiff or a defendant, whose legal representatives have to be brought on record. It is also true that the words plaintiff and defendant are not used in the proceedings before the Court under section 18 of the Act. But the effect of section 53 read with Order XXll Rule 3 is that the applicant and the nonapplicant under section 18 are to be regarded as plaintiff and.defendant under Article 120 of the Limitation Act so as to apply the same to the proceedings in court under section 18.
(12) In Order Ix Rule 9, Civil Procedure Code, there is no mention as to when or Within what period the application there under is to be made. The genetal presumption of law would be that such an application has to be made within a reasonable time. For, when the law casts a duty. on a person to make the application, it also expects that the duty would be performed within, a reasonable time. thereforee, the application under. Order Ix Rule , Civil Procedure Code, can be made within reasonable time. Article 122 of the Limitation Act, 1963, corresponding to Article 163 of the Schedule I of the Limita- corporation Act, 1908, prescribes the period of 30 days as the limitation to restore a suit or appeal or application for review or revision dismissed for default of appearance'. The applicability of Article 122 to proceeding before the Court under section 18 of the Act has to be construed independently of section 53 of the Act. For, section 53 makes applicable only the provisions of the Code of Civil Procedure to a proceeding before a Court under the Act. It cannot be reasonably argued that the effect of applying the provisions of the Code is also to apply the provisions of the Limitation Act. The Code of Civil Procedure and the Limitation Act are two different enactments. Making the Code of Civil Procedure applicable can never mean making any other legislation applicable. It was only because the relevant provision of the Limitation Act was incorporated in Order Xxii Rule 3 of the Code of Civil Procedure the effect of section 53 is to make the said provision of the Limitation Act applicable to a proceeding under the Act whenever Order Xxii Rule 3, Civil Procedure Code is made applicable. This argument is not available for attracting the application of Article 122 of the Limitation Act to a proceeding in a Court under the Act. For, unlike Order Xxii Rule 3, Civil Procedure Code, Order Ix Rule 9 does not incorporate any provision of the Limitation Act. Since the words in Article 122 refer to a suit or an appeal or an application for review or revision, Article 122 cannot apply to an application for reference made under section 18 of the Act. We do not, thereforee, agree with the finding of the learned Additional District Judge that the applications of the petitioners under Order Ix Rule 9, Civil Procedure Code, were barred by limitation merely because they were made after the expiry of 30 days, which is the limitation prescribed by Article 122 of the Limitation Act. The learned Additional District Judge ought to have considered whether these applications were made within a reasonable time. In the present cases, however, we are of the view that if the learned Additional District Judge comes to the conclusion that the dismissal of the reference petitions was due to the negligence of the counsel of the petitioners, he would further consider the question whether the petitioners had reasonable cause for coming to know of the dismissal of their petitions when they did and whether after coming to know of the dismissal of their petitions they were diligent in making the applications for restoration of the petitions. This will show whether the applications for restoration were made by them within a reasonable time.
(13) Question 2 Some more considerations arise in considering the applicaibility of Order Vi Rule 17, Civil Procedure Code, to an application pending before a Court under section 18 of the Act. While an applicant may be deemed to be in the position of a plaintiff, the following points of difference between the position of the plaintiff and the position of an applicant under section 18 of the Act may be noted :-
(1)A plaintiff alone institutes a .suit by the presentation of a plaint without the intervention of any one else. On the- contrary, an application for reference has to be made by the person interested to the Collector, who then makes the reference to the Court. Making of the reference by the Collector under section 18 consists of two different acts. Firstly, under sub-section (2) of section 18, the applicant himself has to state the grounds on which he objects to the award. These grounds of challenge to the award are like grounds of appeal against a judgment or decree- The applicant must also state whether he objects to the measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of the compensation made by the award. In short, the application is a pleading, like a plaint or a memo of appeal. Secondly, under section 19(2) of the Act, the Collector has forward to the Court not only the statements in writing made or delivered to him by the parties and particulars of notices served upon them, but under section 19(1) the Collector has to send to the Court his own statement of the information on the four points stated in in section 19(1) The reference under Part Iii is, thereforee, two-fold. Firstly, it is an application by the person interested forwarded by the Collector, and secondly, it is an independent statement of information by the Collector himself. The difference between the application of the person interested and the information statement of the Collector is significant. The application of the person interested is a pleading and sets out the grounds of attack against the award. The statement of information by the Collector is merely factual. It is not a pleading, but a neutral statement of facts for the information of the Court.
(2)Only one reference under section 18 is contemplated and that too within the period of limitation and with the necessity that it shall be forwarded and, thereforee, be made by the Collector to the Court. The plaintiff, on the other hand, is the domnis lias. He may withdraw the suit and with the permission of the Court file another, or he may amend the plaint under Order Vi Rule 17, Civil Procedure Code.
(14) In Civil Revision 410 of 1972, the facts leading to an application for the amendment of the reference under Order Vi Rule 17, Civil Procedure Code, were as follows: In the reference petition, the land which was acquired and the enhancement of compensation for which acquisition was claimed in the reference was described as a plot measuring 200 sq. yards in Khasra No. 498/149. In the statement under section 19 of the Act, the Collector pointed out that the person interested who made the reference petition was not shown to be the owner of Khasra No. 498/149 in the Revenue Record. This led the person interested to make an application for amendment stating that the Khasra number of the plot of land was wrongly stated to be 498/149 instead of 150 by inadvertence. The petitioner stated that he was not in possession of the Ford Jamabandi at the time of submitting the reference petition and, thereforee, a wrong Khasra number was mentioned in a hurry as the period prescribed for making the reference petition was going to expire. By way of bona fide it was also shown that the correct Khasra number was also shown in the sale deed of the said land which was in possession of the applicant for reference. The amendment was allowed by the Additional District Judge. Hence, this revision by the Union of India against the said amendment.
(15) It was urged for the Union of India that the claim in reference restricted to the one made in the original reference as forwarded by the Collector. This claim cannot be changed unilaterally by the applicant without the intervention of the Collector. To appreciate this argument, it is necessary to know precisely the difference between a plaint in a suit and a reference under section 18 of the Act. Since, the plaint is in the exclusive control of the plaintiff he can apply for its amendment to the Court without much restriction. The general rule is that an amendment ought to be allowed. The exceptions to this rule are that an amendment would not be allowed if it changes the nature of the suit or the cause of action or if it seeks to plead for the first time a claim which by that time is barred by limitation and a plaint presented for the first time .on such a claim would have been, barred by time
(16) On the contrary, an applicant under section 18 cannot independently make the said application to the Court. His application has to be transformed into a reference by the Collector. Of Course, the Collector is bound to forward it to the Court, but nevertheless, it is the combination of the application with the act of the Collector which together makes the reference. This means that. ordinarily a reference is made only once and cannot be made again. The result of this restriction is that the applicant for reference is restricted to the original claim which is made by him. Normally it would be difficult to imagine that he would be able to improve upon his claim by an application for amending the reference. To this extent the liberty of an applicant to seek amendment of the application for reference is more restricted than that of the plaintiff in a suit. But within the framework of the original reference there should be no difference between the plaintiff in a suit and an applicant in a reference. In the present case, there is no dispute that a plot of land of 200 sq. yards belonging to the applicant had been acquired, the compensation for it determined and enhancement of the compensation was asked for by the applicant. The substance of the application for reference was, thereforee, in order. Only the Khasra number of .the acquired land had been wrongly given. Such a clerical mistake should be capable of being corrected in the interest of justice. The inherent power of a Court or of a Tribunal would 'also extend to permitting the correction of such an obvious clerical error. Section 151 of the Code of Civil Procedure is made applicable to a proceeding pending in a court under section 18. Such a court would have the inherent power to make or allow the amendment in the application for reference. The general power of the Court to make such amendment under section 153, Civil Procedure Code, would also beavailable in support of such amendment. Similarly, under Order Vi Rule 17, Code of Civil Procedure, such an amendment should be allowed even in a reference application because it leaves the substance of the application intact and only corrects a clerical error. Not only such amendment should be allowed, but it will be the duty of the Court in the interests of justice to see that such an amendment is made and justice is not defeated by technicalities or clerical error.
(17) We are of the view, thereforee, that no such broad proposition can be laid down as to whether an application for amendment of a reference under Order Vi Rule 17, Civil Procedure Code, is maintainable or not. The answer depends on the nature of the amendment which is sought. If the amendment changes the nature of the claim which was originally referred to the Court by the Collector, ordinarily it would not be possible to allow such an amendment. The analogy of reference made under section 20 of the Arbitration Act is applicable here and the principles laid down rpeently by the- Supreme Court in would apply. But, where the nature of the claim is unaltered and only a clerical error is sought to be corrected the amendment should be allowed under all the relevant provisions of the Code of Civil Procedure mentioned above.
(18) For the reasons stated under questions I (a) and l(b) above the revision petitions 167, 168 and 169 of 1974 are allowed, the order of the learned Additional District Judge dismissing the reference petition for default is set aside and the reference petitions are remanded to him to consider the issue whether the petitioners had fulfillled their terms of contract with their counsel, Mr. Behal and the dismissal of the petitions for default was due to the negligence of Mr. Behal in not appearing in the Court When the cases were called for hearing. If the finding of .the Additional District Judge is that the petitions were dismissed due to the negligence of Mr. Behal, then the next question for enquiry by him would be whether the applications for setting aside the orders for dismissal turn default were made by the petitioners within a reasonable time. In deciding what should be regarded as reasonable time? the learned Additional District Judge will consider when the petitioners should have learnt from their counsel or otherwise of the dismissal of their cases and when they actually learnt of the same and Whether the petitioners were not to be blamed for learning of the dismissals late and whether they were diligent after knowing that their cases were dismissed in making these applications for restoration. The reference petitions will be disposed of by the learned Additional District Judge in the light of the law laid down above and in the light of the finding on the issue which he is directed to try. In the circumstances, we make no orders as to costs of these revision petitions.
(19) For the reasons stated under question No. 2 revision petition No. 410 of 1972 is dismissed with no order as to costs.