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UTTARAKHAND HIGH COURT
Alok Singh, J.
Ambrish Kumar Agarwal —Petitioner
versus
Thakur Dass —Respondent
Writ Petition No.2226 (MS) of 2015
Decided on 8.9.2015
Counsel for the Parties:
For the Petitioner:Mr. B.K. Gupta, Advocate
IMPORTANT POINT
If amendment is not carried out in duplicate copy of plaint, it will not be fatal to plaint.
Headnote:Civil Procedure Code, 1908—Order IV Rule 1, Order VI Rule 18 and Order VII Rule 11—Rejection of plaint—If plaint is not filed in duplicate and plaintiff has failed to file duplicate copy of plaint within such extended time, as court directs, court may reject plaint for non-compliance of Order IV Rule 1 CPC, since, filing of plaint without duplicate copy shall not be deemed to be duly instituted, as envisaged under sub-Rule (3) of Rule 1 of Order IV CPC—In event of allowing amendment in plaint, amendment has to be carried out in original copy of plaint as well as in duplicate copy of plaint within such time as stipulated by order or within such extended time, as envisaged under Rule 18 of Order VI—If amendment is not carried out in duplicate copy of plaint, it will not be fatal to plaint—This defect is curable and it can be cured within such time as fixed by court by exercising powers under Rule 18 of Order VI CPC—No interference is called for in impugned judgments and orders passed by courts below—Trial court shall grant reasonable time to plaintiff to carry out amendment in duplicate copy of plaint, as required under Order VI Rule 18 CPC. (Paras 14 to 16)
Result: Writ Petition dismissed.
Alok Singh, J.—Present petition is filed by the defendant/ tenant / petitioner, herein, assailing the judgment and order dated 13.07.2015 passed by JSCC / Civil Judge (SD), Haldwani (Nainital) in JSCC Suit No. 04 of 2008 whereby application (Paper No. 137C) moved by the defendant / tenant / petitioner, herein, for rejecting the plaint, was rejected as well as judgment and order dated 31.08.2015 passed by 1st Additional District Judge, Haldwani whereby JSCC Revision No. 53 of 2015 was dismissed upholding judgment and order dated 13.07.2015 passed by learned trial court.
2. Brief facts of the present case, inter alia, are that landlord / plaintiff / respondent, herein, has filed JSCC Suit No. 04 of 2008 against the defendant/ tenant / petitioner, herein, in the court of JSCC / Civil Judge (SD), Haldwani (Nainital) for recovery of arrears of rent and eviction of the tenant on the ground of non payment of rent for more than four months i.e. with effect from 01.04.2007 to 23.05.2008, despite demand of arrears of rent vide statutory notice. Defendant/ tenant / petitioner, herein, having received summon, has filed written statement before the trial court.
3. Landlord / plaintiff / respondent, herein, has moved an application seeking amendment in paragraph 7 of the plaint saying that in paragraph 2 and 3 of the plaint, it has specifically been stated that rent is due with effect from 01.04.2007 till 31.03.2008, however, in paragraph 7 of the plaint, due to typographical mistake instead of “01.04.2007”, “01.04.2008” was typed, therefore, same should be allowed to be corrected. Learned trial court vide order dated 27.02.2012 was pleased to permit the landlord / plaintiff / respondent, herein, to carry out the amendment in paragraph 7 of the plaint. Landlord / plaintiff / respondent, herein, has carried out the amendment in the original plaint on 29.02.2012, however, amendment could not be carried out in the duplicate copy of the plaint, which was filed along with original copy of plaint, as required under Order IV Rule 1 CPC.
4. Defendant/ tenant / petitioner, herein, thereafter, moved an application under Order VII Rule 11 CPC (paper no. 137C) requesting the trial court to reject the plaint on the ground that landlord / plaintiff / respondent, herein, has failed to carry out the amendment in duplicate copy of the plaint filed along with original copy of plaint. Application so moved by the defendant/ tenant / petitioner, herein, was rejected by the trial court and revision arising therefrom was also dismissed. Feeling aggrieved, petitioner has filed present writ petition under Article 227 of the Constitution of India.
5. Mr. B.K. Gupta, learned counsel for the petitioner, has vehemently argued that since as per Order IV Rule 1 CPC, every plaint is to be filed in duplicate, therefore, in every suit, amendment has to be carried out, in case, amendment is allowed by the court, in the original copy of the plaint as well as in the duplicate copy of the plaint.
6. According to Mr. B.K. Gupta, Advocate for the petitioner, if amendment is not carried out in the duplicate copy of the plaint filed along with original copy of the plaint, as required under Order IV Rule 1 CPC, then as per clause (e) of Rule 11 of Order 7 CPC, plaint should be rejected.
7. According to Mr. Gupta, in the present case, both the courts below have committed jurisdictional error by not rejecting the plaint, as required under Order VII Rule 11 (e) CPC.
8. Order IV Rule 1, Order VI Rule 18 and Order VII Rule 11 of CPC read as under:
“Order IV Rule 1. Suit to be commenced by plaint— (1) Every suit shall be instituted by presenting a plaint (in duplicate) to the Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).”
“Order V
