LAWS(MAD)-2001-8-60

S SELVA RAJ Vs. S MARY

Decided On August 29, 2001
S.SELVA RAJ Appellant
V/S
S.MARY Respondents

JUDGEMENT

(1.) 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 under Section 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.

(2.) 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. H relied on two decisions, one reported in Manic/cam v. Mahudam Bathwnmal and the other in Krishnappa v. Jhanda.

(3.) 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 LA. 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 LA. 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 and Bishnu Prasad v. Amar Singh.