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2009 Supreme(Cal) 523
HIGH COURT OF CALCUTTA
PINAKI CHANDRA GHOSE AND I. P. MUKERJI, JJ.
KENNETH ARTHUR VARDON WILSON
VS.
RATAN MAROTHIA
A. P. O. No. 294 of 2006 and G. A. No. 2394 of 2006
Decided On: JULY 20, 2009
The court has the power to ratify an amendment for substitution of legal representatives carried out after the expiry of time, and such ratification prevents the suit from abating.
Headnote:
CIVIL PROCEDURE - SUBSTITUTION OF LEGAL REPRESENTATIVES - ABATEMENT OF SUIT - Amendment for substitution of legal representatives carried out beyond time - Whether suit abates - No - Amendment ratified by court - Suit expedited.
Fact of the Case:
Kenneth Arthur Vardon Wilson, the appellant, filed an application for dismissal of the suit filed by the respondent, claiming specific performance of an agreement for sale of premises in Kolkata, on the grounds that the amendment for substitution of legal representatives of the deceased defendant was not carried out within the time stipulated by the court's order.
Finding of the Court:
The court held that the amendment for substitution of legal representatives was carried out beyond time due to the failure of both parties to take appropriate measures in court. However, the court ratified the amendment and dismissed the appeal, expediting the suit.
Issues: 1. Whether the suit abated due to the failure to carry out the amendment for substitution of legal representatives within the time stipulated by the court's order. 2. Whether the court has the power to ratify an amendment carried out after the expiry of time.
Ratio Decidendi: 1. The obligation to obtain substitution is discharged upon the application being made within time. Thereafter, it is the obligation of the court to cause the legal representative of the deceased defendant to be substituted upon proper hearing of the application. 2. There is no provision in Order XXII, Rule 4 of the Code of Civil Procedure regarding the failure to amend after a substitution order is made. This is so because the duty to effect amendment is that of the court. And if there is failure on the part of the court to amend, a party to the litigation should not suffer for such lapses. 3. The court has the power under Section 148 of the Code of Civil Procedure read with Chapter XXXIII, Rule 46 of the Original Side Rules to extend the time for doing any act. By implication, the court also has the power to ratify any act, like substitution carried out after the expiry of time.
Final Decision: The appeal was dismissed, and the amendment for substitution of legal representatives was ratified by the court. The suit was expedited, and the substituted defendant was directed to file an additional written statement within two weeks from the issuance of the certified copy of the order.
( 1 ) THIS is an appeal from a judgment and order dated 6th August, 2006, passed by the Court of the first instance. By such judgment and order the application of kenneth Arthur Vardon Wilson for dismissal of the plaintiffs suit has been dismissed. FACTS:
( 2 ) KENNETH is the appellant before us. The point involved in the suit is short but very important. The question to be answered is when, on the death of the defendant, an application for substitution of her legal representative has been made within time and allowed, but the amendment not carried out within the time stipulated by the order, would the suit abate ?
( 3 ) THE suit is of 1990. In the suit, the respondent/plaintiff claims specific performance of an agreement dated 2nd January, 1989 for sale of premises No. 6 Chowringhee Lane, kolkata, against the defendant Mrs. Helen Wilson, being the mother of Kenneth. On 11th October, 1993 the defendant died. On 6th January, 1994 the plaintiff/respondent filed an application to record the death and for. substitution of Kenneth and his brother Norman William Wilson and one Dr. Narinder Kohli as defendants in place and instead of the deceased defendant.
( 4 ) BY an order dated 31st July, 1995 in that application Kenneth and his brother and Narinder Kohli were ordered to be substituted as defendants. Such amendment was to be carried out within 2 weeks. From time to time, the time to carry out the substitution was extended last by an order dated 6th December, 2001.
( 5 ) NO steps were taken by the plaintiff to carry out the order. No steps were taken by the legal representatives of the defendant either. After almost 5 years Kenneth Arthur vardon Wilson made an application for dismissal of the suit for failure to carry out the above substitution.
( 6 ) THE whole issue whether the substitution was carried out was much in dispute. In the impugned order of Arun Kumar Bhattacharya, J. in the above application for dismissal of the suit for failure on the part of the plaintiff to carry out the order for substitution, there is no finding at all whether the substitution was carried out according to the orders of this Court as discussed above. Yet, the application for dismissal of the Suit was dismissed. CONTENTIONS:
( 7 ) THE appellant contends that the amendment in obedience to an order for substitution has to be carried out within the time prescribed in the order and if such amendment has not been carried out within the time prescribed, the plaintiff/respondent ought not to be permitted to carry out the amendment. The suit would have automatically abated. An alternative argument is also advanced that if the amendment is carried out beyond the time permitted by the Court to do so, the amendment is non est and there is no substitution in the eyes of law.
( 8 ) DURING the course of hearing of the appeal we directed the registry to produce the records regarding carrying out of substitution in accordance with the above orders. We have received a detailed report from the registry. According to the report of the registry the amendment was carried out on 9th August, 2006.
( 9 ) IT may be mentioned at this stage, that when this appeal was moved on 9th August, 2006 before the Division Bench comprising of girish Chandra Gupta, J. and Manik Mohan sarkar, J. , there was an order of the said Division Bench that if no amendment had been carried out so far, it could not be carried out at all.
( 10 ) NOW it appears from the report of the registry that the amendment was carried out on 9th August, 2006.
( 11 ) THE appellant says that since the amendment was carried out beyond time, it was without authority of the Court. It is no amendment at all and non est in the eye of law. The Court should declare that the suit has long abated.
( 12 ) COUNSEL for the appellant has cited decisions reported in the case of State of Gujrat v. Sayed Modh. Baquir El Edross, AIR 1981 sc 1921; Chhotalal Hariram v. Dilip Kumar chatterjee, AIR 1976 Cal 337; Dilbagh
