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1981 Supreme(Goa) 1
Goa High Court
K. M. MISHRA, Ag., J.C.
Francisco de Souza - Appellant
Versus
Antonio Albuquerque - Respondents
Civil Revn. Appln. No. 148 of 1980
Decided On : 9 January 1981
Govind U. Bhobe, for Petitioner; Antonio Albuquerque, Respondent in person.
The Court can extend the time for amendment of pleadings under Section 148, C.P.C., even after expiry of period prescribed under Order 6, Rule 18, C.P.C.
Headnote:
AMENDMENT OF PLEADINGS - EXTENSION OF TIME - POWER OF COURT - SECTION 148, C.P.C. - APPLICABILITY - COURT CAN EXTEND TIME FOR AMENDMENT OF PLEADINGS UNDER SECTION 148, C.P.C., EVEN AFTER EXPIRY OF PERIOD PRESCRIBED UNDER ORDER 6, RULE 18, C.P.C.
Fact of the Case:
The petitioner filed a petition for permission to claim a set-off of Rs. 4,000/- against the plaintiff which the plaintiff owed him on account of some repairs made by him in the house. The Court rejected the petitioner's prayer. The petitioner filed a Civil Revision Application which was allowed by the Court, permitting the petitioner to claim set-off and to carry out/make necessary amendment, subject to payment of Rs. 50/- as costs being condition precedent to the plea of set-off being allowed. The petitioner filed a petition for permission to carry out the necessary amendments, which was rejected by the trial Court on the ground that the prayer had become barred by limitation.
Finding of the Court:
The Court held that the petitioner could not have carried out the amendment in the Revisional Court and that the petitioner was not aware of the date of receipt of the papers in the lower Court. The Court further held that the petitioner appeared before the lower Court on the date of hearing but instead of filing the amendment on that date, he filed the same five days thereafter. The Court also held that the prayer for amendment was therefore not barred by law of limitation and that even if it was barred, it was open to the Court to have extended the time under Section 148, Civil P.C.
Issues: Whether the Court can extend the time for amendment of pleadings under Section 148, C.P.C., even after expiry of period prescribed under Order 6, Rule 18, C.P.C.
Ratio Decidendi: The Court held that Section 148 of the Code cannot be resorted to for narrowing down the scope of O.6, R.18 of the Code, the language of which is quite clear and unambiguous to indicate that the Courts power to extend such time is not limited to one category of cases. The Court further held that the embargo of not permitting to amend after the expiration of the period fixed or granted in the Courts order or of such fourteen days, i. e. the period fixed by law, will remain only or will come into force only, if the Court does not extend time.
Final Decision: The Court allowed the revision and extended the time and directed that the amendment be carried out within a period of 14 days from the date of the order.
ORDER :- This Civil Revision raises a small but an important question of law. The revision-petitioner is the defendant. In a suit brought against him for specific performance of a contract in respect of sale of a restaurant, he filed a petition for permission to claim a set-off of Rs. 4,000/- against the plaintiff which the plaintiff owed him on account of some repairs made by him in the house. The plaintiff opposed the same. The Court rejected the petitioners prayer. Being aggrieved by the aforesaid order he filed Civil Revision Application No. 126/1979. The same was allowed by this Court by its order dated 19th March, 1980; permitting the petitioner to claim set-off and to carry out/make necessary amendment, subject to payment of Rs. 50/- as costs being condition precedent to the plea of set-off being allowed.
2. After receipt of the L.C.R. the matter came up before the trial Court on 17-7-1980. It appears that the petitioner requested for 5 days time to carry out the amendment and the case was then adjourned to 22-7-1980 when the petitioner filed a petition for permission to carry out the necessary amendments. The said amendment opposed by the plaintiff/ respondent was rejected by order dated 22-9-1980, which is the subject-matter of this Civil Revision Petition.
3. The learned trial Judge has rejected the petitioners prayer for being allowed to carry out the amendment on the ground of the prayer having become barred by limitation, According to the trial Court under Rule 18 of Order 6, C.P.C., it was the duty of the petitioner to carry out the amendment allowed by the Revisional Court within a fortnight from the order allowing the amendment. During this 14 days the file was still in the Judicial Commissioners Court and so this amendment could have been carried out in that Court itself. But assuming that the amendment should be carried out in this Court, then the defendant would have carried out the same within a fortnight from the date the case was fixed for appearance of the parties or when the parties appeared before the Court. The case was fixed for appearance on 17th July, 1980, but instead of carrying out the amendment the defendant merely filed an application on 22nd July, 1980, seeking permission of the Court to carry out the amendment. The application was obviously not tenable because the prayer for amendment had already been allowed by the Judicial Commissioners Court and therefore there was no need of a fresh application seeking permission of the Court to carry out the amendment. The defendant should have carried out the amendment under order issued by the Judicial Commissioners Court and having failed to do so within 14 days from the date of the order or from the date the parties appeared before the Court after the file had been returned to the lower Court, the right to carry out the amendment was obviously barred by limitation and the defendant was not entitled to carry out the same.
4. Mr. Bhobe, learned advocate appearing for the petitioner, submits that the petitioner could not have carried out the amendment in this Court which is a revisional Court. The petitioner was not aware of the date of receipt of the papers in the lower Court. The petitioner appeared before the lower Court on 17th July, 1980, on being noticed but instead of filing the amendment on that date, he filed the same five days thereafter, i.e., on 22nd July, 1980. The prayer for amendment was therefore not barred by law of limitation. Assuming the same was barred it was open to the Court to have extended the time under Section 148, Civil P.C. Assuming further that it was not open to the lower Court to extend the time on the ground that the said Court had not allowed the amendment, it is still open to this Court to exercise its powers under Section 148, C.P.C., and extend, the time in view of the peculiar facts and circumstances of the case.
5. The respondent appearing in person filed a written reply (placed on record) opposing the revis
