IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2548 of 2010 1. Harishankar Thakur S/O Kunj Bihari Thakur R/O Vill Dudha Chaturi,Tappa Khadda, Parana Manjhauwa, PS. Majhwalia, Distt-West Champaran Versus 1. Sudama Yadav S/O Shankar Yadav R/O Vill Dudha Chaturi,P.O.Shikarpur Via- Majhwalia, P.S. Majhwalia, Distt -West Champaran 2. Ramnath Yadav S/O Rudal Yadav R/O Vill Dudha Chaturi, P.O. Shikarpur Via- Majhwalia, P.S. Majhwalia, Distt-West Champaran 3. Manager Mian S/O Kitab Mian R/O Vill Dudha Chaturi, P.O. Shikarpur Via Majhwalia, P.S. Majhawalia, Distt-West Champaran ----------- For the Petitioner:- Mr.Ganpati Trivedi, Advocate Mr. Madan Mohan, Advocate For the Respondents:- Mr. S.K. Dwivedi, Advocate ************* 4 19.07.2011 I.A. No. 4080 of 2011 This interlocutory application has been filed for substitution of the name of the petitioner namely, Hari Shankar Thakur who has died during the pendency of the writ petition on 18.04.2011, by his legal heirs namely:(1) Vijay Shankar Thakur (2) Prem Chandra Thakur both sons of Late Hari Shankar Thakur, R/o-Dudha Chaturi, P.S. Majhwlia and District-West Champaran (3) Prabhawati Devi @ Prapha Devi, widow of late Vikram Thakur, resident of village Tilangahi, P.S. Bairiya, District-West Champaran as mentioned in paragraph 3 of the Interlocutory application. The interlocutory Application is allowed. Let the name of Hari Shankar Thakur be expunged from the 2 records of the proceeding and be substituted by his legal heirs named in paragraph 3 of the interlocutory application. C.W.J.C.No.2548 of 2010 With the consent of the parties the writ petition has been taken up for disposal at the stage of admission. The petitioner questions the correctness of the order dated 23.12.2009 passed by the learned Additional District Judge, F.T.C.-III, West Champaran at Bettiah in Title Appeal No. 31 of 1996, in refusing to condone the delay in carrying out the amendment allowed by the learned Munssif, Bettiah in Title Suit No. 191 of 1991. The facts in brief giving rise to the present writ petition is that the petitioner who is the plaintiff, filed a Title Suit No. 191 of 1991 for restraining the defendant-1st set- respondent Nos. 1 and 2 herein from giving threats of dispossession from the lands fully described in Schedul-III to the plaint. The petitioner is a purchaser of 3 khathas of land from one Most. Chatia through a registered sale deed dated 21.10.1987 and came into possession of the same. The petitioner got his name mutated and was also being issued rent receipts. The description of the land has been set out in Schedule-III to the plaint. During the pendency of the suit the plaintiff-petitioner purchased another 2 kathas from the lands mentioned in Schedule-II of the plaint, on a consideration of Rs. 5,000/- through registered sale deed dated 10.06.1994 and came in possession of the same. The petitioner in order to include the property purchased on 10.6.1994 to the schedule of the plaint by way of Schedule-IV, filed an application 3 under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as the “Code”) on 02.08.1994 seeking such incorporation by amendment of the plaint. Copy of the amendment petition is placed at Annexure-1. The amendment sought by the plaintiff-petitioner was opposed by the defendants. The trial Court upon consideration of the rival contentions allowed the amendment vide order passed on 24.11.1994 inter alia on the grounds that it did not change the nature of the suit. Though there was a direction to carry out amendment within 14 days but it is stated that the plaintiff-petitioner due to inadvertence, instead of carrying out the amendments in the original plaint, filed an amended plaint within a period of 14 days as stipulated in the order of the trial court. The fact was recorded in the order dated 06.12.1994 by the trial court placed at Annexure-2 of the writ petition. The respondents herein did not chose to question the order dated 24.11.1994 allowing the amendment by the trial court or the order dated 06.12.1994 when the trial Court accepted the amended plaint. Thereafter, the parties led evidence and the trial concluded and the suit was decreed in favour of the plaintiff-petitioner vide judgment and decree dated 28.02.1996. The judgment and decree of the trial court was put to challenge in appeal by the defendant-1st set i.e. the respondent Nos. 1 and 2 giving rise to Title Appeal No. 31 of 1996. One of the contentions raised in the appeal by the defendant-1st set respondent Nos. 1 and 2 herein was the failure of the plaintiff- petitioner to carry out the amendments in the original plaint. It is at this stage that the plaintiff- petitioner filed an application under Order 4 6 Rule 17 of the Code before the appellate court on 06.11.2009, copy whereof is placed at Annexure-3. The amendments sought were identical to the one prayed before the trial Court and allowed. The petition seeking amendment was contested by the defendant- respondents inter alia on grounds of the amendment having already been allowed as back as on 24.11.1994 and the failure of the plaintiff- petitioner to carry out the same rendered the amendments infructuous. The said contest led to filing of a second application under Order 6 Rule 18 of the Code which was filed on 20.11.2009 seeking extension of time for carrying out the amendment in the plaint. The mistake in filing the second petition under Order 6 Rule 17 before the appellate court was admitted. Copy of the petition filed under Order 6 Rule 18 is placed at Annexure-4 to the writ petition. The prayer for extension of time was again opposed by the respondents inter alia on the grounds that the same cannot be allowed after a lapse of 15 years. The learned Additional District Judge, F.T.C. 3, West Champaran at Bettiah by order dated 23.12.2009, upon consideration of the rival contentions rejected both the petitions filed on behalf of the petitioner under Order 6 Rule 17 and under Order 6 Rule 18 respectively as contained in Annexures- 3 and 4 herein. It is this order dated 23.12.2009 to the extent of non allowance of time for incorporation of the amendments allowed by the trial Court, which is put to challenge before this Court. Learned counsel for the petitioner submits that the learned court below has failed to appreciate the scope and intent of the 5 provisions underlying Order 6 Rule 17 and Order 6 Rule 18 of the Code. He submits that Section 107 of the Code vests all powers in the appellate court as vested in the Courts of original jurisdiction and thus the appellate Court was well within its jurisdiction to consider and dispose of the petition filed for extension of time under Order 6 Rule 18. It is submitted that the amendment having been allowed on 24.11.1994 and an amended plaint having been accepted by the trial court as recorded in its order dated 06.12.1994 (Annexure-3), the petitioner had no reasons to believe that the amendments sought did not stand incorporated in the plaint in the eyes of law. He submits that the defendants-respondents herein having not raised any objection at that stage and having not challenged either of the orders allowing the amendment dated 24.11.1994 or accepting the amended plaint on 06.12.1994, he is estopped from raising these issues at the stage of appeal on the principles of waiver and acquiescence. It is contended that the respondents being alive to the issues and having contested the suit in the light of the amended plaint, the objection ought not to have been allowed. It is submitted that the appellate Court exercising all powers of the original court as provided under Section 107 of the Code, should have extended the period permitting the plaintiff to incorporate, the amendments, especially when no prejudice was being caused to the defendants nor were they taken by surprise. Learned counsel for the petitioner relied upon a judgment rendered in the case of M/s Ganesh Trading versus Moji Rai reported in A.I.R. 1978 S.C. 484 at 485, para 2 in support of submission that 6 procedural law is intended to facilitate and not to obstruct the course of justice. It is submitted that the judgment rendered in the case of Ganesh Trading Company (supra) was taken note of in a recent judgment reported in (2010) 4 SCC 518 (State of Maharastra versus Hindustan Construction Company Ltd.) with approval. Learned counsel for the same proposition relied upon on paragraphs 16 and 17 of a judgment of the Supreme Court reported in A.I.R. 1955 SC 425 (Sangram Singh versus Election Tribunal), A.I.R. 1984 Pat. 251 (Jainul Abedi versus Bibi Nisa Khatoon) para 4, (2002)6 SCC 33 (Topline Shoes Ltd. versus Corporation Bank) paras 10 and 11 and (2005) 4 SCC 480(Kailash versus Nanhku) para 28. The judgment relied upon by learned counsel for the petitioner primarily revolves around the well settled proposition that procedural law cannot be made handmaid of justice and has been designed to facilitate justice rather than obstruct its course. Learned counsel concluding his argument submitted that the nature of suit not being altered; the contesting parties not objecting thereto at any stage of the suit; the prayer having been allowed by the trial Court; the amended application having been placed on the records of the proceedings and the trial Court proceeding to decide the suit on the basis of amended plaint; the objection raised was not sustainable in law and order impugned refusing to allow the incorporation of amendments in the plaint is not based on sound reasoning. The case was contested by the defendant-respondents herein who submits that the plaintiff-petitioner is thoroughly confused about 7 his rights, duties and legal position. It is stated that whereas the amendment was allowed on 24.11.1994 allowing 14 days time to incorporate the amendments sought, the petitioner failed to do so and instead presented an amended application which though was allowed to be placed on records vide order passed on 06.12.1994 but the order does not indicate that the amended plaint was accepted. It is stated that the plaintiff alive to the situation, on an objection raised in appeal, initially presented a petition under Order 6 Rule 17 seeking identical amendments to the plaint but having realized his mistake, filed a second petition under Order 6 Rule 18 admitting that the petition dated 13.11.2009 was incompetent and thus sought extension of time to incorporate amendments allowed under order dated 24.11.1994 of the trial Court. He submits that the petition seeking extension of time before the appellate court for incorporation of the amendments in the plaint in the light of the order passed by the trial court dated 24.11.1994, was wholly misconceived and was rightly rejected by the appellate court by its order dated 23.12.2009 impugned in the writ petition. He submits that the law is quite settled on the issue and though amendment can be allowed at any stage of proceeding but it has to be done within reasonable time of the happening of an event necessitating such amendment. He submits that seeking extension of time for incorporation of the amendment in the plaint after a lapse of 15 years and that also at the appellate stage, cannot be held reasonable and was rightly rejected by the appellate court. Learned counsel relied upon a judgment of this Court reported in 2004(4)PLJR 401 (Mostt. 8 Kanti Devi & Anr. versus Surendra Pd. Singh & Ors.) for the proposition that the provisions of Order 6 Rule 18 is mandatory and cannot be permitted after long lapse of time. He submits that whereas in the case referred to above the delay was of 9 years, in the present case the delay is even more of 15 years. He thus submits that the order passed by the court below requires no interference in exercise of powers under Article 227 of the Constitution of India. Mr. Trivedi, in reply had a small submission to make. He submits that the judgment relied upon by the respondent does not take into consideration the various judgments of this Court and the Supreme Court as relied upon by the petitioner in his course of argument and to that extent the judgment relied upon by the respondent must be held as per incurium. I have heard learned counsel for the parties and perused the materials available on record of the proceedings. The sequence of events as noticed by this Court leaves no room for doubt that the plaintiff-petitioner herein, did file a petition under Order 6 Rule 17 seeking certain amendments, before the trial Court; that the amendments were allowed under order dated 24.11.1994 allowing 14 days time for carrying out the amendments; that within a period of 14 days the plaintiff-petitioner presented an amended application upon incorporation of the amendments allowed by the trial Court; that the trial Court vide order passed on 06.12.1994 allowed the amended plaint to be placed on the record of the proceedings; that the trial was conducted in the light of the amended 9 plaint and judgment and decree was passed and that at no stage the defendant-respondent raised any objections to either the amendments being allowed or to the filing of the amended plaint rather he allowed the trial to reach its logical conclusion. Nodoubt, once the amendments sought stood allowed by the trial Court under its order dated 24.11.1994 there was no occasion for the plaintiff-petitioner to file a second petition under Order 6 Rule 17 for incorporating the same amendments before the appellate Court. The said petition was certainly not maintainable and has been also accepted by the petitioner in his application filed under Order 6 Rule 18 placed at Annexure-4 of the writ petition, admitting that the petition under Order 6 Rule 17 before the appellate Court was incompetent. The issue which falls for consideration before this Court is whether at all the plaintiff-petitioner was within his rights to file a petition under Order 6 Rule 18 before the appellate Court seeking extension of time for incorporating amendments allowed under an order dated 24.11.1994 passed by the trial Court. In the opinion of this Court the answer is in the negative. The propositions formulated by learned counsel for the petitioner in the backdrop of judicial pronouncements, are well settled and there is no dispute about that. The crux of the matter is whether the proposition formulated and the judgment relied upon by the petitioner has its application to the present case. The answer again is in the negative. Order 6 Rule 18 discusses consequences of non-compliance 10 of the directions of the Court allowing amendment to the pleadings under Order 6 Rule 17 and debars the party from amending the pleadings after expiration of the period allowed unless extended by the Court. The legislative intendment of the provision manifests the time to be extended by the Court concerned allowing the application for amendment. Although in exceptional cases the appellate Court can exercise such function but that can only be in circumstances where the same has been refused by the trial Court and the lis is still pending for final adjudication before the trial Court. In the present case there is complete absence of cause of action for the plaintiff-petitioner to approach the appellate Court for extension of time. There is neither a situation where any application under Order 6 Rule 18 has been rejected by a trial Court enabling the party to approach a superior Court nor is the lis pending before the trial Court. In absence of these two relevant factors, I am of the opinion that the petition filed by the plaintiff-petitioner before the appellate Court under Order 6 Rule 18 of the Code, was not maintainable and has been rightly rejected. The question is whether that alters the situation in any manner acting adverse to the plaintiff-petitioner considering the circumstances in which the judgment and decree had been passed by the trial Court after submission of the amended copy of the plaint. Whether or not the judgment and decree has been passed on the basis of the amended plaint and whether or not the defendant-respondent herein, having failed to raise any objections to the orders passed by the trial Court in relation to the amendments carried out in the plaint either 11 before the trial Court or before a superior Court, he can be allowed to raise such issue in appeal, are matters to be considered by the appellate Court at the stage of final determination of appeal and this Court would not express any opinion on the same at this stage. With the aforesaid observations the writ petition is dismissed. Bibhash (Jyoti Saran, J.)