MOHD RAMZA KHAN Vs. KHURSHID AHMAD WANI

JUDGEMENT

(1.) VIDE order dated: 26.04.2005 the first appellate court, Principal District Judge, Anantnag, allowed petitioner/respondents prayer seeking amendment in plaint to include the ground of sub -letting of demised premises by respondent -defendant subject to payment of Rs, 1000/ -as costs which was challenged by other side in this court through revision petition No. 92/2005 which was dismissed on 26.04.2006. Copy of dismissal order appears to have been received in the first appellate court on 31.08.2006 as revealed proceedings of that date, and the matter posted on 16.09.2006. On that date learned Judge is shown to have been on half days leave with the case adjourned to 10.09.2006 when counsel for other side appeared and took an objection to filing of the amended plaint on the ground that it was belated in time. The objection was contested and leaned appellate court after hearing rival sides ruled on 27.11.2006 that in view of delay involved amendment could not be taken on record and declined to entertain the same directing reimbursement of Rs. 1000/ - deposited by petitioner as costs.

(2.) AGGRIEVED thereby the petitioner herein assails aforesaid order on the ground that since appellate court was awaiting result of the revision petition right up to the date when he sought to submit the amended plaint, its acknowledgement could not be refused because his failure to file the same there before was not attributable to him and as thus appellate courts refusal to take amended plaint on record has resulted in miscarriage of justice. During course of submissions petitioners counsel has reiterated the contents of revision petition with reference to annexures on record, while respondents counsel defended the impugned order saying that petitioner had failed to seek extension of time as required by law before the court below and was as such precluded from filing the amended plaint or depositing costs beyond prescribed time.

(3.) I have heard learned counsel and considered the matter. Three features require consideration. First, that the impugned order of allowing amendment was challenged in this court and up -held with disposal of earlier revision petition with an interim stay on proceedings in court below. In that view the time limit fixed by court below for filing the amended plaint automatically extended because of the merger of first appellate order into revisional order by this court and as such the time would start running against petitioner from the date the order of this court was communicated to the court below i.e. 16.09.2006. Secondly, that on following two dates thereafter with absence of learned trial Judge on one date and extension of time allowed by implication by adjournment of the matter for filing amended plaint sufficiently diluted respondents argument that the amended plaint should have been presented as per fixed schedule. Thus the principle that time bound steps in terms of courts order should ordinarily be taken within prescribed time unless extended does not apply in the matter; and thirdly that once the amendment as allowed by first appellate court was found to be genuine by this court also, extension in time fixed or filing amended plaint beyond time would only be procedural in nature which in view of the confirmed desirability of the amendment as allowed would in the interest of substance have to take a back seat. Law is well settled in view of the settled procedural requirements are required to be observed and implemented only to advance and not to impede the cause of justice.