S. Selva Raj vs S. Mary and Others

The petitioner is aggrieved by the order allowing the application under Order 9, Rule 9 C.P.C. The respondents 1 to 4 herein are the legal

representatives of one Irani Moosa who filed O.S.No.450 of 1984 to declare the public auction conducted on 11.1.1980 u/s 69(a) of the Transfer

of Property Act inoperative and to set aside the same. Pending the suit, the plaintiff filed I.A.No.5916 of 86 for amendment of plaint and the same

was allowed. The plaintiff was directed to carry out amendments in the plaint on or before 6.3.1990. It was not done till that date and therefore the

suit was dismissed for default on 25.7.1990. According to the plaintiff, the reason for not carrying out the amendment was neither wilful nor

wanton and the Court below ought not to have dismissed the suit for default. The Trial Court dismissed the application. On appeal, the suit was

restored. Therefore, the present C.R.P. has been filed.

Mr. A.M. Loganathan, learned counsel for the petitioner submitted that the Court below erred in restoring the suit. According to the learned

counsel, the word ''hearing'' would include every date on which the suit is posted for settlement of issues and any adjournment thereafter according

to Rule 3(6) of Civil Rules of Practice and under Order 9, Rule 8 CPC, the Court shall dismiss the suit when the defendant appears and the

plaintiff does not appear when the suit is called on for hearing. No grievance can be raised since the Court has adopted the procedure under Order

9, Rule 8 CPC. He also submitted that the respondents are not entitled to any indulgence because they have not come to Court with the correct

facts. He submitted that in the affidavit filed in support of the petition which was sworn to by the wife of the plaintiff, she had called herself the

power of attorney of the plaintiff and there was no proof of the same. Further, in 1987, the plaintiff himself had filed an application in

C.M.P.No.20067 of 1987 where he had specifically stated that due to mis-understanding with his wife, he is not on friendly terms with her. When

this is the specific case of the plaintiff, the claim made by the deponent of the affidavit that she is the power of attorney cannot be true. Therefore,

nobody who has made a false statement before the Court is entitled to any indulgence. He also submitted that the Appellate Court had not totally

applied itself to any of the findings of the Trial Court and had arbitrarily reversed the order of the trial court. He relied on two decisions, one

reported in V. Manickam Pillai Vs. Mahudam Bathummal and Others, and the other in Krishnappa v. Jhanda, AIR 1929 Rang 224.

Mr. Lakshmi Narayanan, learned counsel for the respondents on the other hand submitted that it was not open to the Trial Court to dismiss the

suit merely because amendment has not been carried out. Under Order 6, Rule 18 C.P.C, failure to amend within the time limit set down by the

Court will only result in the party being barred from amending the pleadings unless time is extended by the Court. But on this score, suit cannot be

dismissed for failure to amend. He also submitted that though it is true that after the I.A. for amendment was allowed, periodically the matter was

posted for several hearings, at no point of time was the suit posted for trial. It was only for the sake of convenience that the suit and the LA. were

adjourned together. He submitted that normally the course adopted by courts would be to adjourn both the J.A. and the suit contemporaneously

every date of hearing and if the amendment was carried out, thereafter, it would be adjourned to another date for the evidence after

commencement of trial. He submitted that the erroneous procedure adopted by the trial court has resulted in injustice. He also submitted that the

suit property is a place of residence of the respondents and harsh consequences would follow merely because the amendment was not carried out

on a stipulated date. He relied on two judgments: Annigeri Agricultural Produce Co-op. Society v. Shantappa, 1977 (1) K.L.J. 324 and Bishnu

Prasad v. Amar Singh, AIR 1959 Man. 9.

The Appellate Court was clearly satisfied that sufficient cause had been made out for the non-appearance of the plaintiff on the date on which it

was called and dismissed for default. Normally, the exercise of discretion by the Court below in this regard is not interfered with. But, in this

matter, several factors were brought to the notice of the Court which require some consideration. It appears that the petitioner herein has filed

O.S.No.7716 of 1980 for recovery of possession on the ground that he had purchased the suit property in auction u/s 69 of the Transfer of

Property Act. The first respondent herein and her husband who is now deceased and who was the plaintiff in the suit were the defendants. The suit

was decreed. In the said suit, one of the defences taken by the first respondent and her husband is that they had filed a suit to set aside the same.

The Court which tried the above suit found that is not a valid defence. It appears that a second appeal has been filed thereagainst which is now

pending before this Court. In that second appeal, the husband of the first respondent in his application to sue as an indigent person had sworn to

the affidavit claiming that he was not on friendly terms with his wife. It is this affidavit that is put against the first respondent to deny her right, who

filed an affidavit on behalf of her husband. It appears that subsequently, the petition to sue as a partner was rejected and the entire court fee was

paid. It may be that, the husband of the first respondent, to show his indigent status had claimed that he was not friendly with his wife. In the

present proceedings, though the affidavit has been sworn to by the first respondent on behalf of her husband, it is seen that she is swearing to the

affidavit primarily as the wife of the plaintiff and also his power of attorney. She also claims to be fully acquainted with the facts of the case. In this

affidavit, she has stated that her absence on 25.7.1990 was for bona fide reasons. When the suit was dismissed for default on 25.7.1990. She

appears to have been intimated on 29.7.1990 and on 5.8.91, this petition appears to have been filed. There does not seem to be any delay in filing

the application. The question is whether the reason given by her should be accepted.

Learned Counsel for the petitioner resisted the arguments advanced by the learned counsel for the respondents regarding the wrong procedure

adopted by the Court below upon the party''s failure to amend the pleadings on the ground that these arguments were advanced before the lower

Court. It may be that, this point was not taken. But since it has direct bearing on the correct procedure to be adopted by the Court, learned

counsel for the respondents was permitted to make his submissions in this regard. Order 6, Rule 18 C.P.C reads thus :

failure to amend after order:- If a party who has obtained an order for leave to amend docs not amend accordingly within the time limited for that

purpose by the order, or if no lime 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.

Order 9, Rule 8 C.P.C lays down the procedure where the defendant appear when the suit is called on for hearing. In the affidavit filed in

support of the petition, the dependent has stated that she had to take leave form her work to amend the plaint and since she could not do it during

the period granted to her, both the petition for amendment and the suit had been dismissed. She had specifically stated that the delay was not

willful. The Trial Court found fault with the respondents for not amending the plaint though several adjournments were granted and also dismissed

the application on the ground that the deponent had not proved she was the power of attorney of her husband. He also compared it with the

affidavit referred to above filed in the second appeal in the High Court and held that since they were contrary, he was of the opinion that this

application has been filed only to delay the matter. This is a case where it is not denied that the respondents are making a last ditch effort to retain

possession of their place of residence. However, they still have to make out sufficient cause. The Appellate Court accepted the submission made

on behalf of the respondent that the default in carrying out the amendment was only because the counsel was an aged person and due to his old

age and sickness, he could not do it. The Appellate Court also held that for carrying out amendment and to file the amended plaint copy, the

presence of the plaintiff is unnecessary, it was only the counsel who should carry out the amendment as permitted by the Court and it was not done

because of some lapse on the part of the counsel either due to his old age or sickness. The order of the Appellate Court makes it clear that the

presence of the party is not necessary on the date on which the amendment is required to be carried out. This supports the case advance by the

learned counsel for the respondents.

In the decision reported in V. Manickam Pillai Vs. Mahudam Bathummal and Others, , this Court had held that an application under Order 9,

Rule 9 C.P.C cannot be ordered as a matter of grace. Therefore, the learned counsel for the petitioner would submit that mercy of indulgence has

no room while considering an application of this nature.

In the decision reported in Krishnappa v. Jhanda, AIR 1929 Ran. 224, the Court held that if a person alleges a cause for his non-appearance

which is false, then the Court can refuse to restore the suit since he cannot except to obtain justice on mercy. In this case the first respondent herein

had given the reason for her absence on that date namely inability to get leave from her work. This has not been proved to be false. That she is the

wife of the plaintiff and fully acquainted with the facts of the case has also not been found to be raised. Since the suit had been dismissed for her

absence, she had given these reasons. But whether the suit could have been dismissed for default on that date itself is a moot point.

In the decision reported in Annigeri Agricultural Produce Co-op. Society v. Shantappa, 1977 (1) K.L.J 324, a Division Bench of the Karnataka

High Court had held,

If the amendment ordered by the Court is not carried out within the time prescribed under Order 6, Rule 10 CPC or within such extended time

as the Court may grant all that can be said to follow is the party in whose favour the order of amendment is made would not be entitled to the

benefit of the amendment. The main matter itself cannot be dismissed for failure to carry out the amendment.

This squarely applies to the present case. The fact that the suit was also periodically adjourned along with the amendment application cannot

be denied. The question is whether the suit itself was posted for hearing on 25.7.1990. The order of the appellate Judge also seems to indicate that

on that date, normally only the counsel is expected to appear and carry out amendments. If the first respondent who is the deponent of the affidavit

had been present on that date, may be, the suit would not have been dismissed for default. But she was not expected to be present and in any

event, the reason given by her that it is only because she could not take leave was also accepted by the appellate Court. It is also evident form the

dates, that immediately thereafter, they have filed an application under Order 9, Rule 9, CPC. It does not appear to me to be a case where the

lower Court had exercised its discretion on the ground of mercy nor has the reason given by the respondents for their absence on that dale been

proved to be false. In these circumstances, I do not think, the order of the Court below should be interfered with. CRP is therefore dismissed. No

costs. CMP.No.16738 of 2001 is closed.