FRANCISCO DE SOUZA Vs. ANTONIO ALBUQUERQUE

JUDGEMENT

(1.) This Civil Revision raises a small but an important question of law. The revision-petitioner is the defendant. In a suit brought against him for specific performance of a contract in respect of sale of a restaurant, he filed a petition for permission to claim a set-off of Rs. 4,000/- against the plaintiff which the plaintiff owed him on account of some repairs made by him in the house. The plaintiff opposed the same. The Court rejected the petitioner s prayer. Being aggrieved by the aforesaid order he filed Civil Revision Application No. 126/1979. The same was allowed by this Court by its order dated 19th March, 1980; permitting the petitioner to claim set-off and to carry out/make necessary amendment, subject to payment of Rs. 50/- as costs being condition precedent to the plea of set-off being allowed.

(2.) After receipt of the L.C.R. the matter came up before the trial Court on 17-7-1980. It appears that the petitioner requested for 5 days time to carry out the amendment and the case was then adjourned to 22-7-1980 when the petitioner filed a petition for permission to carry out the necessary amendments. The said amendment opposed by the plaintiff/ respondent was rejected by order dated 22-9-1980, which is the subject-matter of this Civil Revision Petition.

(3.) The learned trial Judge has rejected the petitioner s prayer for being allowed to carry out the amendment on the ground of the prayer having become barred by limitation, According to the trial Court under Rule 18 of Order 6, C.P.C., it was the duty of the petitioner to carry out the amendment allowed by the Revisional Court within a fortnight from the order allowing the amendment. During this 14 days the file was still in the Judicial Commissioner s Court and so this amendment could have been carried out in that Court itself. But assuming that the amendment should be carried out in this Court, then the defendant would have carried out the same within a fortnight from the date the case was fixed for appearance of the parties or when the parties appeared before the Court. The case was fixed for appearance on 17th July, 1980, but instead of carrying out the amendment the defendant merely filed an application on 22nd July, 1980, seeking permission of the Court to carry out the amendment. The application was obviously not tenable because the prayer for amendment had already been allowed by the Judicial Commissioner s Court and therefore there was no need of a fresh application seeking permission of the Court to carry out the amendment. The defendant should have carried out the amendment under order issued by the Judicial Commissioner s Court and having failed to do so within 14 days from the date of the order or from the date the parties appeared before the Court after the file had been returned to the lower Court, the right to carry out the amendment was obviously barred by limitation and the defendant was not entitled to carry out the same.