Banku Ramulu Patrudu vs Konda Narayana Raju

Munikanniah, J.—This application to extend time for the purpose of amending the plaint has been made by the plaintiff rather in very peculiar circumstances.

The following few facts need mention. The plaintiff, having found out a mistake in regard to the date of commencement of the partnership, filed an application to amend the plaint in O. S. No. 223 of 1955 on the file of the Court of the District Munsif, Vijaywada. But as that petition was rejected, he came up in a revision to this court and obtained an order dated 12-2-1959 to amend the plaint. But this court specified no time for carrying out the amendment. However that order was subject to the payment of costs to the defendant within three weeks. The plaintiff seems to have complied with one portion of the order as he paid the costs of Rs. 50/- to the defendant on 24-2-1959.

It appears from the diary that the suit which stood posted to 2-2-1959 was adjourned to 2-3-1959. The suit thereafter underwent as many as seven adjournments either on the ground that the stay issued by the High Court had been continuing or it did not suit the convenience of the court to take up the suit. It is only 21-9-1959 the B diary contains the entry "Stay vacated Call on 3-10-1959." On 3-10-1959, I. A. No. 2791 of 1959 was filed by the present petitioner (plaintiff) praying the trial court to order amendment to be carried out in the plaint as per the order of the High Court again, the court adjourned the case of its own accord to 19-10-1959 and then to 26-10-1959 and on 28-10-1959. It passed the order to carry out the amendment and adjourned the case to 5-11-1959. On 29-10-1959 the plaintiff, in pursuance of this order, carried out the amendment. This fact was noted in the B diary as on 5-11-1959 and the suit was posted for trial. Thereafter the defendant filed an additional written statement on 20-1-1960. In it, he raised the defence that the amendment of the plaint has not been carried out within the time allowed by law. upon this, the plaintiff filed C. M. P. No. 203

of 1962 on 8-1-1962 purporting to be in the disposed of C. R. P. No. 1432 of 1958. Meanwhile, the suit seems to have been adjourned either because one or the other party was not ready or the court could not take up the case.

In C.M.P. No. 203 of 1962, the petitioner namely, the plaintiff prays that to regularise the carrying out of the amendment which actually was effected on 21-10-1959, an order may be passed by this court to extending the time from 26-2-1959 to 29-10-1959. In support of this petition, the plaintiff averred in the affidavit that the order for amending the plaint had been communicated to the trial Court only late and soon thereafter he filed I. A. No. 219 of 1959 on 3-10-59 and with the permission of the court amended the plaint within the time granted by the trial court on 29-10-1959, and it was thus actually carried out within the time allowed by that court. Though it is not seriously contended on behalf of the petitioner that the trial court in the circumstances had jurisdiction to extend the time, it is submitted on behalf of the plaintiff that the delay is not wilful but due to bona fide reasons and that it would be competent for this court to excuse the delay exercising its inherent powers.

On the other hand, the contention for the defendant (respondent herein) has been that it is only this court that could lawfully extend the time for amending the plaint on the strength of rule 18 of Order VI, C. P. C. It is also contended that the carrying out of the amendment even if it be under the orders of the trial court cannot be taken to be in strict compliance with the rule. As regards the position viz., which of the Courts that has to extend the time, the authorities bearing on the point could be said to be scarce. In Gurmitsingh v. Labhu Ram, AIR 1952 Pep 42, Chopra, J. was of the opinion that the directions contained in the mandate of the appellate Court are beyond the judicial discretion of lower court and therefore it will not be competent for the trial court to modify those orders of the appellate Court. In this view, it has therein been held that when any time is specified by the appellate court to amend the plaint, the subordinate court is not competent to extend that time. On the facts of this case, it could be found that the court was not considering the case in which no time limit has been fixed. On the other, hand, it has been applying its mind to a case where time limit has been fixed by the appellate Court, whether in such circumstances, the subordinate Court could modify such an order.

In S. K. Buty v. Shriram Hari, AIR 1954 Nag 65, Deo, J. overruling the objections on behalf of the defendant held that the District Judge had jurisdiction to extend time under Order VI, Rule 18. Thus, in none of these two cases could it be said that the question whether as in the circumstances of the instant case extension of time could be allowed and the procedure regularised in case of an amendment allowed to be made by the trial court after the time permitted under Rule 18 has expired (sic).

As already pointed out, in the instant case, there has been delay in the communication of the order allowing the amendment to the trial Court. That it is so is obvious from the entries made in the B diary. It is also plain that soon after the trial Court learnt that there was dissolution of the stay and orders in regard to making of the amendment had been passed, the same has been not in the B. diary the petitioner, viz., the plaintiff filed 1. No. 2791 of 1959 on 3-10-1959. Without going into 1. question whether the trial Court in those circumstances power to extend time or not, there seems to be as fact dealing by the trial Court with this application at allowing time to plaintiff to amend the plaint till 5-7-1959. This order has been made, as already pointed o on 28-10-1959. The amendment was thereafter carried on 29-10-1959, which must be again said in pursuance the order of the trial Court. It is also brought out to the present application to this court had to be made account of the objection taken by the defendant in the additional written statement which he filed. Now it has to be seen whether in these circumstances it could be said that the delay in filing before this court for extension of time is wilful or on account of reasons which could be held to be bona fide. In my view there seems to have been some difficulty for a party in having to be certain about the Court to which the application for extension of time could be filed.

Order VI, Rule 18, C. P. C. reads:

If a party who has obtained an order for leave amend does not amend accordingly within the time limited for that purpose by the order or if no time is theret 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 tended by the court.

The word ''Court'' therefore has, in my view, to be under stood for the purpose of this Rule in the context. It not unknown that trial Courts also allow amendments am when the trial Courts refuse, the appellate or revisions courts interfere and allow amendments. Such cases no being unknown, it is all the more reasonable that the won ''Court'' should, therefore, be a matter for understanding ac cording to the context. In the instant case, even the trial court thought it had powers to extend time given by the revisional Court to amend the plaint. Such a mistake committed in these circumstances, could certainly, in my vie be held to be bona fide. Therefore on discovering to mistake an effort has been made by the plaintiff to for an application in the Court to get a formal order of extension of time for amendment. 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 could u/s 151, C. P. C. for the purpose of meeting the ends of justice.

Mr. Veerabhadraiah for the respondent further contended that even though the additional written statement had been filed on 20-1-1960, there has been thereafter considerable delay on the part of the plaintiff in filing present application in this court. Though this object could not be said to have been properly met by the petitioner, the delay may be set down as due to the uncertain legal position as to the Court which could grant the extension of time. I am, therefore, unable to find any substance in the point so taken.

For the reasons stated above, I find this is case in which the delay has to be condoned and that extension of time for the plaintiff to amend the plaint till 29-10-1959 could be granted.