Nareshchandra Chinubhai Patel vs The State of Gujarat

J.M. Sheth, J.—This revision petition is filed by the original plaintiff u/s 115 of the CPC against the order passed by the learned Judge of the Small Causes Court, Ahmedabad, below application, Ex. 40, in Summary Civil Suit No. 5879 of 1971, dated 30-8-1974.

Facts leading rise to this revision petition, briefly stated, are as under:

Plaintiff had filed the aforesaid suit against the opponent-defendant for recovery of Rs. 1,120/-, the rent due, as the opponents had vacated the suit premises in the middle of the month. Daring the pendency of the suit, plaintiff received a bill for education cess. He, therefore, by application, Ex. 7, sought for amendment of plaint, for including claim in respect of that education cess. Both the parties were unaware about the order passed on that application, Ex. 7, date 11-6-1972 regarding the grant of the amendment sought for. According to the plaintiff, he did not know about the aforesaid order passed on Ex. 7. On 18-7-1974, as per the order passed by the trial Court, amendment was made. Exhibit 38 was given by the opponents-defendants to cancel that amendment made in the plaint as such amendment was not carried out as per the order within 14 days from the date of the earlier order passed by the Court and that prayer of the defendant was granted by an order, date 6-8-1974 The plaintiff, therefore, filed the present application, Ex. 40, stating that the Court had jurisdiction to extend such time in view of the aforesaid circumstances disclosed and he be allowed to amend the plaint as per the order passed below Ex. 7 on 19th June, 1972. This application was opposed by the defendants-opponents. The Court dismissed this application with costs on the ground that the Court had no jurisdiction to extend such time and permit the plaintiff to allow him to amend the plaint as per the order passed below Ex. 7. as this was not a case where the Court, in its order had fixed time or granted time for making such amendment in the plaint. It was a case where the period of 14 days is fixed by law. In such cases, the Court had no jurisdiction to extend time.

A short question that arises for consideration in this revision petition is, whether the aforesaid view taken by the trial Court is justified in law in view of the provisions of Order 6, Rule 18 of the CPC (which will be hereinafter referred to as "the Code"). That rule reads:

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

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 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 extended by the Court. It is thus evident that in both the categories of cases, viz. where a party has not amended within the time granted by the Court in the order or a party, where no such time is limited in the order itself, has not done it within fourteen days from the date of the order, the party is not permitted to amend either after expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.

Mr. Bhatt, learned Assistant Government pleader, appearing for the opponents-defendants, has vehemently contended that the expression "unless the time is extended by the Court," will govern only the cases where the time is fixed or granted by the Court for making such amendment, in the order itself. The second limb of his submission was, that the use of the expression "unless the time is extended by the Court" presupposes that there must be some provision to be found elsewhere beyond this rule, where the Court has been given power to enlarge time. It is only in such cases where the Court has power to enlarge time, the Court can enlarge such time. In a case like the present case where time is not fixed or granted by the Court, but the period of fourteen days is fixed by the law itself, Court has no power to enlarge such time. Section 148 is only relevant section which deals with the power of the Court to extend time and it applies to a case, where time is fixed by the Court, submitted Mr. Bhatt.

Section 148 of the Code reads:

Where any period is fixed or granted by the Courts for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

The language of this section may support Mr. Bhatt''s submission in this behalf and there are decisions of several High Courts which have taken that view. But in my opinion, this Section 148 of the Code cannot be resorted to, for narrowing down the scope of Order 6, Rule 18 of the Code, the language of which in my opinion, is quite clear and unambiguous to indicate that the Court''s power to extend such time is not limited to one category of cases, as submitted by Mr. Bhatt. If really that was the intention of the legislature as has been submitted by Mr. Bhatt, there was no reason for the legislature to first refer to both the categories of cases and then state that the party who has obtained an order for leave to amend 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. The words "as the case may be" are significant to indicate that the legislature clearly intended to cover both the categories of cases and the expression "unless the time is extended by the Court" will govern both the categories of cases. The embargo of not permitting to amend after the expiration of the period fixed or granted in the Court''s order or of such fourteen days, i.e. the period fixed by law, will remain only or will come into force only, if the Court does not extend time. The provisions contained in Order 6, Rule 18 of the Code clearly indicate that such power vests in the Court to extend time, in such cases also, where the time is not fixed or granted by the Court, but the period of fourteen days will apply in view of such time fixed under Order 6, Rule 18 of the Code. Mr. Bhatt has not been able to cite any authority wherein such restricted meaning has been given to this expression used in Order 6, Rule 18 of the Code.

M.I. Patel, appearing for the petitioner, has invited my attention to several decisions in support of his submission. In Mahanth Ram Das Vs. Ganga Das, , the facts were as under:

Where a Bench of the High Court, while deciding an appeal in favour of the appellant, passed a peremptory order fixing the period for payment of deficit Court-fee and the appellant made an application for extension of time before the time fixed had run out, but the application came on for hearing before a Division Bench after the period had run out.

It was held, that the High Court was not powerless to enlarge the time even through it had peremptorily fixed the period for payment. Section 148, in terms, allowed extension of time, even if the original period fixed had expired, and Section 149 was equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. An order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired.

The pertinent observations on which I want to rely upon are:

The procedural orders though peremptory (conditional decrees apart) are, in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay. Thy do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed.

Sections 148, 149 and 151 clothed the High Court with ample power to do justice to a litigant if sufficient cause was made for extension.

In Lakshmi Bala Chanak Vs. Brojendra Nath Pain and Others, , a single Judge of the Calcutta High Court has, at page 244, after referring to the aforesaid decision of the Supreme Court, observed:

...The Supreme Court has expressly laid down that the Court has power to condone the delay and extend the time fixed u/s 148, Civil Procedure Code, even if the original time fixed by the Court had expired. This material passage in the judgment of the Supreme Court seems to have been overlooked in the Single Bench decision of this Court Tarapada Sarkar Vs. Nepal Gazi and Others, , relied upon by the trial Judge. It is true, that, in the case before the Supreme Court, the directions were made in the order and not in the decree, but I think that the same principle can be applied in case of decree also.

In view of the decision of the Supreme Court as referred to above, in my opinion, the Court has power to extend time u/s 148 of the Civil Procedure Code, even after the time fixed by the Court in the decree had expired.

This decision only deals with the aspect of the case, where the aforesaid observations made by the Supreme Court can also be extended to the cases where the decree is passed and time is greented in the decree.

Mr. Patel has invited my attention to the decision of a single Judge of Andhra Pradesh High Court in Banku Ramulu Patrudu v. Konda Narayana Raju AIR 1962 AP 527. At page 528. after quoting the provisions of Order 6, Rule 18 of the Code, it is observed:

The word ''court'' therefore has, in my view, to be understood for the purpose of this rule in the context. It is not unknown that trial Courts also allow amendments and when the trial Courts refuse, the appellate or revisional Courts interfere and allow amendments. Such cases not being unknown, it is all the more reasonable that the word ''court'' should therefore, be a matter for understanding according 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 view, be held to be bona fide. Therefore, on discovering the mistake an effort has been made by the plaintiff to file 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 Court u/s 151, C.P.C. for the purpose of meeting the ends of justice,

It is significant to note that in that case amendment was allowed by the High Court in revision petition. No time was fixed for carrying out that amendment and there was delay made in carrying out such amendment in the trial Court by the persons who obtained leave for amendment. The High Court reached the conclusion that even if there is any delay, the High Court can regularise it by condoning the delay even in its inherent jurisdiction u/s 151 of the Code. In my opinion, the Andhra High Court has correctly laid down that position.

Mr. Patel has also invited my attention to the decision of a single Judge of the Madras High Court in Rahmat Bi Saheba and Others Vs. R. Krishna Doss Lala, . the relevant observations made are:

...As regards the second issue whether the amendments not having been carried out in the original plaint the suit is bad against defendants 2 to 4, Order 6, Rule 18. Civil Procedure Code, has got to be considered. That rule provides that where an amendment of the plaint is ordered, the amendment has to be carried out in the plaint within the time limited by the order or if no time is fixed within 14 days of the order unless the Court extends the time later on. In this case the plaintiff was absolutely indifferent and no amendments were actually embodied in the plaint. But my attention is drawn to an application made on the date of the trial, that is 2nd October, 1936, on which date the plaintiff applied by C.M.P. No. 2534 of 1936, for extension of time to carry out the amendment in the plaint. It does not appear whether notice of this application was given to the other side but an order was passed on that date that orders will be passed along with the judgment and when the judgment was delivered on 8th October the Court said "amendment will be made by the Court." The Judge directed the officers of the Court to carry out the amendment and this appears to have been done. It is possible to view this as a sufficient compliance with the provisions of Order 6 Rule 18.

In my opinion, these two last decisions referred to, by me also indicate that the Court has power to extend such time even in case where the time is not fixed or granted by the Court in the order permitting the amendment, but the time is fixed by law, viz. fourteen days, from the date of the passing of the order permitting amendment. As said earlier, the language of Order 6, Rule 18 of the Code clearly indicates that position to be the correct position. I, therefore, reject the submissions made by Mr. Bhatt on behalf of the opponents and accept the submissions made by Mr. Patel on behalf of the petitioner.

Mr. Bhatt has next contended that in case his argument is not accepted, the trial Court shall be directed to consider whether proper case was made out to exercise jurisdiction in favour of the petitioner. In my opinion, it is not necessary in the instant case to leave that matter to the trial Court, as the admitted position is, that both the sides did not know about the order passed below Ex. 7, allowing the amendment. It was only at the time of trial, that the parties came to know about it and the plaintiff moved the Court to permit him to carry out such amendment. Sufficient cause is shown for condoning the delay. It is even a fit case to exercise inherent powers of this Court u/s 151 of the Code, if necessary. But, in my opinion, the language of Rule 18 of Order 6 of the Code is sufficient to indicate that the Court has such power.

Mr. Bhatt has further submitted the that opponents must be given an opportunity to amend the written-statement in view of the amended plaint. That is the right of the opponents-defendants. There is he question of any discretion of the Court. Naturally, they will have a right to file an additional written statement after the plaint is amended as per the order of the Court. The trial Court will necessarily have to give them time for filing such additional written statement after the plaint is amended, if the defendants so choose to do.

Revision petition is allowed and the order passed by the trial x Court below Ex. 40, dated 30-4-1974, dismissing the petitioner''s application, Ex. 40, is set aside and application, Ex. 40, is allowed. The petitioner is permitted to carry out the amendment as per the order passed below Ex. 7 in June, 1972, within two weeks after the date of the receipt of this writ by the trial Court. Looking to the circumstances of the case, each party is ordered to bear its own costs in this revision petition as well as in application Ex. 40. It need not be emphasised that the opponents-defendants will get the opportunity as the law permits, to file an additional written statement to the amended plaint after the plaint is amended. The trial Court will give reasonable time to the opponents-defendants to file such additional written-statement, if the opponents-defendants so choose to do. Rule is made absolute.