AMARESWAR SWAIN Vs. JAGABANDHU SWAIN

JUDGEMENT

(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.) 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.