Amendment
valentine thakkar
(Querist) 07 September 2012
This query is : Resolved
The wife gave amendment application U/O 6 R 17 for amendment in the Plaint. After six months' debate amendment was allowed with cost. The amendment, however, was allowed after 3/4 months and during the intervening time whenever date was fixed, the wife's advocate attended the court and inquired about the amendment. When he was absent and could not come thinking it might take further time, amendment order was passed. 14 days had passed and the advocate gave application for extension which was granted. The applicant paid the cost and made the amendment. However, the opponent adv. quoted R 18 and asked for expunge/revocation/ cancellation of the amendment. What could be the decision of the court?
ajay sethi
(Expert) 07 September 2012
court would condone delay in carring out amendments and extension of time granted wont be revoked
ajay sethi
(Expert) 07 September 2012
Order 6, Rule 18 has two parts. The first part lays down the time within which the amendment is to be incorporated in the pleadings. The second part deals with the penalty for not carrying out the amendment within time, namely, debarring the party in default from amending the pleading unless the time is extended by the Court. The time can be extended by the appellate Court as well. (See Dandapani Goudo v. Khetrabasi Goudo :(1972) 2 CWR 1428). Where the amendment has not been carried out by the party after obtaining leave within time limited by the order or within - fourteen days from the date of order where time was not so specified, extension of time to amend could be granted under Section 151 of the Code.(See Pahali Rout v. Khulana Bewa and Ors. AIR 1985 Ori. 165). it is the obligation of the party to carry out the amendment where leave to amend has been grantedLest the party be indifferent or rest on his oars the embargo is put that unless the amendment is carried out as directed, the party shall be debarred from amending his pleadings. But the harshness of the provision is mellowed by clothing the Court with jurisdiction to extend time in fit cases ; even otherwise there is the saviour provision in Section 151 of the Code, it needs no emphasis that the extension should not be a matter of course, but would depend upon facts and circumstances. The realities of life cannot be lost sight of. The parties in Courts are mostly ignorant and illiterate--unversed in law. They have to depend on their counsel. If the counsel is negligent sufferance is by the party.
ajay sethi
(Expert) 07 September 2012
Orissa High Court
Amareswar Swain vs Jagabandhu Swain And Ors. on 14 March, 1996
Equivalent citations: 1996 I OLR 479
Author: A Pasayat
Bench: A Pasayat, P Naik
JUDGMENT
A. Pasayat, J.
1. An interesting question, though simple in its appearance but deceptive in nature, relating to scope and ambit of Order 6, Rule 18 of the Code of Civil Procedure, 1908 (in short, the Code') falls for consideration in this writ application.
2. The factual position is undisputed and, therefore, a brief reference to it would suffice.
Petitioner is the plaintiff in Title Suit No. 163 of 1984 pending before the learned Civil Judge (Senior Division), Jagatsinghpur. During pendency of the suit, an application under Order 6, Rule 17 of the Code was filed on 28-7-1993 for amendment of the plaint. Prayer was made to delete paragraph 4 (a) of the plaint and to make certain other changes. Opp. party Nos. 1 to 12 are defendants in the suit. They filed objection to the prayer for amendment on 21-12-1993. however, the learned Civil Judge accepted the prayer for amendment subject to payment of Rs. 100/- as cost which was paid on 24-11-1994, and the suit was posted to 7-12-1994 for filing consolidated copy of the plaint incorporating the amendments. The suit was again posted to 21-12-1994, and was further posted to 6-1-1995, 7-1-1995, 17-1-1995 and 2-2-1995. On 24-2-1995 s consolidated plaint was filed wherein paragraphs 4 (a) and 4 (b) of the original plaint were deleted, and the case was adjourned to 31-3-1995 for filing of additional written statement. " At this juncture it was noticed that there had been deletion of paragraph 4 (b). When the defect was noticed a prayer was made to prepone the date and a corrected consolidated plaint deleting only paragraph 4 (a) of the original plaint was filed, and prayer was made to accept the same. On 31-3-1995 the. case was taken up and opp. party Nos. 1 to 12 raised objection regarding acceptability of corrected consolidated plaint as filed on 1-3-1995. The matter was taken up on 17-4-1995 and 27-4-1995; Prayer to accept the corrected consolidated plaint filed on 1-3-1995 was rejected. A petition was filed styled as one under Order
6. Rule 18 of the Code for acceptance of the corrected consolidated plaint, but the prayer was rejected. It was held that in view of the failure to amend the plaint within the time granted by the Court, the petition was not acceptable. The revision preferred before the learned District Judge, Cuttack yielded no relief to the petitioner.
3. According to learned counsel for petitioner, a too technical view has been taken, and the true import of Order 6. Rule 18 of the Code has not been kept in view. The stand of the learned counsel for opp. parties on the other hand is that the provisions contained in Order 6, Rule 18 are absolute in terms and the Courts below have taken the correct view.
4. Since Order 6, Rule 18 of the Code is the pivotal provision, sams needs to be extracted. Including the Orissa Amendment, it reads as follows :
"R. 18. Failure to amend after order-
Where a party has obtained an order to amend and the amendment is excessive, within a 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 file a consolidated pleading incorporating the amendments, and 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.
In all other cases, the Bench Clerk shall carry out the amendment."
Under Sections 33 and 54 of the Code of Civil Procedure, 1877, the Court could reject a plaint if the party failed to comply with the order for amendment. There is no such provision under the Code and the only consequence of the failure to amend within time would be that he cannot amend his pleading afterwards, unless the time is extended by the Court and the suit would continue without the amendment. The Court has a discretion to extend the time even after the expiry of the period originally fixed. The Court has power under Order 6. Rule 18 to extend the time for amendment even in those cases where the time for amendment is not fixed by the Court but by Saw, namely 14 days.
It is indisputable that the amendment is to be carried out by the party and not by the Court or its office, the logic being that the pleadings are of the parties verified by them, unless it is routine in nature. Having obtained the leave to amend, it is his responsibility to carry out the amendment and to be sure that his pleadings are in the form and manner as he decided them to be, and the alterations of additions are in accord with the leave granted. Sometimes amendments are extensive, and incorporation thereof into the existing pleadings may be difficult. Therefore, the responsibility is not fixed on the Court, and it is that of the party. That appears to be the intention of Orissa Amendment to the provision. Once a party is permitted to amend the pleadings the provision comes into operation. Unless the party seeking amendment complies with the requirement of the provisions, he shall not be permitted to amend the pleadings. If the amendment is not carried out within the stipulated time, the order allowing amendment becomes inoperative and ineffective by operation of Order 6, Rule 18 of the Code. If the party to whom the permission to amend is given does not avail himself of it within the time-limit, he cannot amend his pleading afterwards unless the time limited for amendment is extended by the Court. The Court has to consider whether the effect of permitting an amendment after the lapse of time results in a denial of the rights of a party and causes injustice to the said party. Every case has to be decided on its own facts. Much would depend upon the nature of amendment; whether it is extensive or routine in nature. In the case at hand effect of Orissa Amendment to the provision does not appear to have been kept in view. The Court can grant extension of time if proper case is made out on an application moved by the defaulting party.
5. Order 6, Rule 18 has two parts. The first part lays down the time within which the amendment is to be incorporated in the pleadings. The second part deals with the penalty for not carrying out the amendment within time, namely, debarring the party in default from amending the pleading unless the time is extended by the Court. The time can be extended by the appellate Court as well. (See Dandapani Goudo v. Khetrabasi Goudo :(1972) 2 CWR 1428). Where the amendment has not been carried out by the party after obtaining leave within time limited by the order or within - fourteen days from the date of order where time was not so specified, extension of time to amend could be granted under Section 151 of the Code.(See Pahali Rout v. Khulana Bewa and Ors. AIR 1985 Ori. 165). it is the obligation of the party to carry out the amendment where leave to amend has been granted. Lest the party be indifferent or rest on his oars the embargo is put that unless the amendment is carried out as directed, the party shall be debarred from amending his pleadings. But the harshness of the provision is mellowed by clothing the Court with jurisdiction to extend time in fit cases ; even otherwise there is the saviour provision in Section 151 of the Code, it needs no emphasis that the extension should not be a matter of course, but would depend upon facts and circumstances. The realities of life cannot be lost sight of. The parties in Courts are mostly ignorant and illiterate--unversed in law. They have to depend on their counsel. If the counsel is negligent sufferance is by the party.
6. Though in the facts of the case it is apparent that amendment has not been properly carried out, it cannot but be held to be on account of bona fide and in any case is one where the lapse can be condoned, if necessary, by the exercise of inherent powers vested under Section 151 of the Code for the the purpose of meeting the ends of justice. The lawyer who conducted the faux pas was disengaged and a new counsel was engaged. Keeping ail these facts in view, we feel an extension of time would be appropriate. It is stated that the corrected plaint has already been submitted. The same be accepted. However, the opp. party Nos. 1 to 12 have been put to inconvenience by the action of petitioner however bona fide their conduct may be. The inconvenience caused to opp. party Nos. 1 to 12 can be mitigated by payment of costs, which we fix at Rs. 200/- (two hundred). The same be paid to any of the learned counsel appearing for them in this Court within three weeks from today. On the receipt of any of the learned counsel appearing for opp. party Nos. 1 to 72 in this Court being filed before the trial Court, the consolidated plaint stated to have been filed by the petitioner shall be accepted.
The writ application is allowed to the extent indicated above.
P.C. Naik, J.
In agreement with learned Brother Pasayat, J. that under the facts and circumstances of this case, the time for carrying out the proposed amendment should be extended subject to payment of costs, I will like to add the following few lines.
7. In 62 (1986) CLT 667, Chaturbhuja Naik v. Chandramohan Naik and Ors. ; it has been held that the trial Court was wrong in putting the duty on the office to carry out the amendment as it was contrary to Order 6, Rule 18, CPC. Thus, what has been (aid down in Pahali Rout's case (supra) and Chaturbhuja Naik's case (supra) is that though time to incorporate the amendment can be extended, the duty to carry out the amendment is that of the party, and not the office, i. e.. the Court. It, however, appears that the substituted Rule 18 which is in force in our State with effect from 25-5-1984 was probably not brought to the notice of the Court at the time of arguments. The substituted Rule 18 which is in force with effect fro-n 25-5-1984 in the State of Orissa has been quoted already. The underlined portions as given below have been brought in by the Orissa Amendment:
"Where a party has abtained an order to amend and the amendment is extensive, within a 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 file a consolidated pleading incorporating the amendments, and 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.
In all other cases, the Bench Clerk shall carry out the amendment"
(See 'The AIR Manual, 5th Edition, Volume-5, at page 529).
A mere reading of this Rule indicates that if amendments are extensive, they have to be incorporated by the party within the time specified, or within fourteen days from the date of the order. But, in case the amendment (s) is not extensive, it is the Bench Clerk who is to carry out the sama. Thus, in case it is a question of deleting something. like the present one where the prayer was made to delete paragraph 4(a) of the plaint and for some other minor changes, in terms of the local amendment of Rule 18. the amendments could have been carried out by the Bench Clerk. The confusion has arisen because of the wrong consolidated copy filed. That aspect does not appear to have been noticed.
8. It need not be over-emphasized that procedure is the hand-maid of justice and as such, it is to be enforced for furthering the cause of justice and not to throttle it, for the endeavour is to ascertain the truth to do justice. Admittedly, at the time of passing of the impuged order, the written statement of alt the defendants had not been filed. Under the circumstances, extension of time to incorporate the amendments could not have caused any prejudice to the defendants. The Court was, under the circumstances, not right in refusing to take the amended plaint on record.
prabhakar singh
(Expert) 07 September 2012
NOTHING MAN! COURT HAS POWER TO CONDONE DELAY.RULING OR NO RULING JUSTICE DEMANDS JUSTICE AND NOT TECHNICS OF ITS' DENIAL.
valentine thakkar
(Querist) 08 September 2012
Thanx all experts. The opponent advocate is sure to lose and he knows he is fighting a losing battle. However, to save some grace he is raising all sorts of objections. The only hitch that we all advocates face is in knowing when the amendment would be granted by the court. The petitioner's advocate attends the court on all dates, but when he senses that the order would take some more time and keeps away, during that time only the amendment order may be passed. This leaves him to the mercy of the court.
I simply wanted to know what would be the final outcome of the adversary's objections. The court has already condoned delay and within the extended time cost was paid and amended application was submitted and amendment in red was made in the original petition. Can the adversary succeed in his revision application for expunging/revoking the amendment?
