Gurmit Singh vs Labhu Ram

Chopra, J.—This is an appeal by the plaintiff against the appellate decree of the District Judge, Kapurthala dismissing his suit on a preliminary ground. The case has a checkered history and the facts that are necessary to understand the point involved are as follows:

Mehar Singh, father of the present appellant, brought a suit in the Court of Sub-Judge Phagwara, for a permanent injunction against Labhu Ram respondent. The dispute related to a vacant site which the plaintiff claimed to be his and in his possession. The defendant resisted the suit on various grounds, one of which was that the plaintiff was not in possession of the site and, therefore could not sue merely for an injunction. This plea found favour with the Sub-Judge and the suit was consequently dismissed on 22-12-1999. The plaintiff went in appeal to the District Judge who agreed with the trial Judge that the plaintiff should have filed a suit for possession, but he allowed him (the plaintiff) to amend the plaint and add a prayer for possession of the site. This order of the District Judge is dated 18-6-2000 and it directed that the plaintiff should put in the amended plaint on 9th Katik, 2000. The plaintiff filed an appeal in the High Court of the erstwhile Kapurthala State, against the decision of the District Judge that a suit for injunction did not lie. His appeal was dismissed on 12-10-2000. He presented a petition for revision against the judgment of the High Court to the Judicial Committee which met the same fate and was dismissed (in limine), on 20-1-2001. It may be mentioned here that neither the High Court nor the Judicial Committee fixed any time within which the amended plaint was to be presented. On 1-2-2001, i.e., within 14 days of the order of the Judicial Committee, the plaintiff approached the Sub-Judge to sent for the record which had not reached there by them, so that he (the plaintiff) might be able to put in the amended plaint. On 31-2-2001, when probably record reached the Court of the Sub-Judge, the latter directed that the amended plaint be put in on 29th Mar,2001. The plaintiff presented the amended plaint on the appointed day. After framing issues on the pleas of the parties and recording evidence thereon, the Sub-Judge decreed the suit on 29-12-2003, and granted the plaintiff a decree for possession of the site in question. Labhu Ram then preferred an appeal against this decree to the District Judge, Kapurthala. It was contended before him that the amended plaint had not been presented within the time originally allowed and therefore the amendment should have been refused and the suit dismissed. The learned District Judge found force in the objection, accepted the appeal and dismissed the suit on that ground alone. The plaintiff having died, his son Gurmit Singh has now come in second appeal to this Court.

Shri Kidar Nath Tiwari, the learned Counsel for the appellant in the first instance contended that the order of the Sub-Judge dated 31-2-2001 requiring the plaintiff to put in the amended plaint on 29th Mar,2001, was an order under O. 6, R. 17, C.P.C., and that having been complied with, the amendment was in accordance with law and made within the time allowed. The argument is that after the time previously allowed for amendment had expired, the Sub-Judge made a new order allowing the plaintiff to amend the plaint. Obviously the contention is devoid of any force. When the plaintiff had once been allowed to amend the plaint by the District Judge, there was no question of the same having been ordered afresh by the Sub-Judge. The Sub-Judge was simply to comply with the orders made by the appellate authority and not to pass any fresh order allowing amendment. It is next urged that since the record of the case had not reached the Sub-Judge by the time the amended plaint was to be presented, the order could not be complied with. A reference has been made to the order of Sub-Judge, dated 27th Katik 2000, which shows that the record had not reached him till then. It may be observed that the District Judge while allowing the amendment had not directed the record to be sent to the Sub-Judge for further proceedings in the suit. Before the record could reach the Sub-Judge the plaintiff went in appeal to the High Court and then in revision to the Judicial Committee. Under these circumstances, the learned Counsel contends, the plaintiff could have put in the amended plaint within 14 days of the order of the highest Court. Reliance is placed on O. 6, R. 18, C.P.C., which provides that where no time is limited for that purpose, the amendment can be made within 14 days of the order. As already observed, the record having not been received by the Sub-Judge even after the decision of the Judicial Committee, the plaintiff applied within 14 days of the order of the said Committee - for the record being sent for in order to enable him to amend the plaint. The learned Counsel, therefore, stresses that the amended plaint should be considered to have been presented within the time allowed by the law. This argument must have had much of force, if the amendment had in fact been made within 14 days of the decision of the Judicial Committee. An appeal having been filed against the order of the District Judge, his judgment could be considered to have merged in the decision of the appellate Court. The case having been finally decided by the Judicial Committee, the amendment could have been made within the time allowed by the final Court. Since no time had been fixed by that Court it could have been done within 14 days of its decision, as provided by O. 6, R. 18, C.P.C. But the difficulty is that the amendment was not actually made even within this period. That might have been because the record had not reached the Sub-Judge by then and had to be sent for on plaintiff''s application, tout the fact remains that the amendment was not made within the time allowed by the law.

The next question is whether the Sub-Judge in view of these facts, could extend the time and fix a date by which the amendment could be made. It is contended by Shri Daya Sarup, the learned Counsel for the respondent, that since the time had been originally fixed by the District Judge, it could not be extended by the Sub-Judge and the contention appears to be correct. Order 6, Rule 18 C.P.C., mates it clear that the amendment has to be made within the time fixed or extended by the Court that allows amendment. It is also the general rule that directions contained in the mandate of the appellate Court are beyond the judicial discretion of the lower Court and hence must be implicitly followed. Where time to do a certain thing is fixed by an appellate Court in its order or decree, it is not competent to a subordinate Court to extend that time. The natural consequence is that the contention of the appellant that since the amendment was made within the time subsequently fixed by the Sub-Judge it should be held to be legal and properly made, loses all its force and must be repelled.

Now, it cannot be denied that it has been a very hard case for the plaintiff. For no fault of his he has been deprived of the assistance of the Courts and justice for which the Courts are meant, on merely a technical ground. To accuse him of having gone in appeal to the High Court and then in revision to the Judicial Committee is ridiculous and to penalise him for having done so would go against the canons of both equity and law. Every litigant has an indefeasible right to approach a higher or the highest tribunal for decision of his rights, if the law allows it. The plaintiff was within his rights to get a final decision from the highest Court as to whether he was entitled to the relief prayed for without amending his plaint. If the time allowed by District Judge for amending the plaint had, in the meantime, expired he should not be made to suffer for it. And again, he cannot be blamed for not presenting the amended plaint within fourteen days of the decision of Judicial Committee, because the record was not then before the Sub-Judge. He approached the Sub-Judge within that period and the record was ordered to be sent for on his application. In view of these facts, I am of the opinion that the District Judge, instead of dismissing the suit, should have taken recourse to O. 6, R. 18, C.P.C., read with Section 148 of that Code. This would have easily solved the difficulty and relieved the plaintiff of the injustice that has been done to him. That he could do it can hardly be doubted. The time had originally been fixed by his Court and he could extend it. If an appellate Court while remanding a case to the trial Sub-Judge limits the time within which the plaintiff, is to do a particular thing, if the suit is dismissed because the plaintiff could, for no fault of his, not comply with the direction, the appellate Court can when the case again comes before it in appeal, extend the time as provided by Section 148, C.P.C. The same rule would apply if, under similar circumstances, the suit is decreed and an objection is taken by the defendant in appeal. Reference in this connection may be made to a judgment of Sir Shadi Lal, C.J., of the Lahore High Court in AIR 1932 235 (Lahore) There the High Court had remanded the case with the direction that the plaintiffs should make good the deficiency in court-fee on their plaint within ten days of the case reaching the trial Court. For certain reasons for which the plaintiffs were not held responsible, the direction could not be virtually complied with and the plaint was therefore, rejected by the trial Judge. The case coming to the High Court again on plaintiffs appeal, it was observed that the technical defect could be rectified by that Court u/s 148, C.P.C., which empowered the Court to enlarge the period even though the one originally fixed may have expired. In the present case, as already observed. I am of the view that it was not only proper but essential for the District Judge to have extended the time which he could u/s 148, C.P.C. Since that has been improperly refused, or has not been done probably because it was not brought to his notice, I think, it can and must be done now in this appeal. I would, therefore, extend the period to the day when the amended plaint was actually presented. The learned District Judge had not decided the appeal on merits, the case has, therefore, to go back to him for decision of other points involved in the appeal.

In the result the appeal is accepted, the decree of the District Judge is set aside and the case is sent back to him for fresh decision of the first appeal on merits. The costs of this appeal shall be costs in the case. The parties have been directed, through their Counsel, to appear before the District Judge, Kapurthala, on 20th December 1951.