GOBARDHAN PATRA Vs. ASHUTOSH NANDY

JUDGEMENT

(1.) The petitioner/defendants have filed the present revisional application challenging Order No.115, dated 8.9.86 passed by the learned munsif, 7th Court at Howrah in title suit No.60 of 1971. An application under Section 151 of the Code of Civil Procedure was filed by the defendants for recalling the order passed by the learned munsif on 4.2.85. It was submitted that the application for amendment as prayed for by the plaintiff was allowed by Order No.81, dated 4.2.85. In fact, the leave was granted by the appellate court to allow the plaintiff to seek amendment and thereafter the plaintiff filed an application under Order 6 Rule 17 of the Code of Civil Procedure. No time was st1pulated by the appellate court and accordingly under Order 6, Rule 18 it would be clear that 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. It is submitted that beyond the aforementioned 14 days an application for amendment was filed by Order No.18. dated 4.2.85 the learned munsif has allowed the same, and thereafter a petition under Section 151 of the Code filed to recall the order. The learned munsif, however, rejected the said petition and being aggrieved the defendants have come to this Court.

(2.) It is strongly submitted that the learned munsif ought not lave allowed the prayer for amendment of the plaint filed and time as envisaged under Order 6 Rule 18 of the said Code ought to have further considered the petition under Section of the Code to recall the order and to decide the case effectively. It further appears that the application for amendment was filed and after hearing both sides the learned munsif found that proposed amendment was not inconsistent and the same would change the character of the suit. Upon proper consideration prayer for amendment was allowed. Against the said order the Petitioners have not come to this Court. On the other hand, a petition under Section 151 of the Code was filed as indicated above.

(3.) Attention of this Court was drawn to a case reported in 19 C.W.N.200 (Thakur Madan Mohan Nath Sahi Deo vs. Maharaja Pratap Udai Nath Sahi Deo). It was found that Rule 18 of Order 6 of the Code of Civil Procedure did not apply to the matter as the order of the High Court directing amendment was not made under Order 6 Rule 17 C.P .C. but under the power of the court to order that certain steps should be taken by the parties to enable the differences between them to be properly settled, and the amend- It made was not out of time. It was clearly pointed out that where leave was not granted strictly within the scope of Order 6 Rule 17 of the Code there cannot be any operation of Order 6 Rule 18 of the Code. Attention of this court was further drawn to a reported in A.I.R. 1985 Orissa .165 (Pahali Raut vs. Khulana Bewa & Ors. ) where the amendment has not been carried out by party after obtaining leave within time limited by the order or tin !4 days from the date of order where time was not so specified , extension of time to amend could be granted under Section 151 he Code of Civil Procedure. It was found further that it should not be forgotten that the practice sometimes lulls the party his counsel into inaction and the party and his counsel learned at a later stage to ,their discomfiture that the amendment has not been carried out despite leave having been granted and Rule 18 of Order 6 is the stumbling block.