Yunish v. Fiyaz Ali Khan And Another

K. Kannan, J.The application for amendment of the plaint and the decree was sought after the decree was passed. It was a case where the plaintiff had filed an application for amendment of the plaint to include certain items which were said to have been omitted from the description of properties. The properties which were said to have been omitted were in rectangular 108 with the following killa numbers:

Killa No. 8/2 (3-0), 9(7-3), 10/1(1-17), Rect. No. 109, killa No. 2 (8-0)

The Court had allowed the application for amendment but it appears that the amendment was not carried out in the plaint within a period of 14 days as stipulated under Order 6 Rule 18 CPC. The suit proceeded further and was decreed for plaintiffs share along with 2nd defendant as jointly entitled to the property. The principal contest had been taken by the 1st defendant, who claimed to be the adopted son of one Rehmati widow of Ibrahim. The Court found that the adoption as pleaded by the 1st defendant was not true and allowed for a joint declaration for the plaintiff and the 2nd defendant. When the application for amendment was filed again the Court held that it was belated and the same have not been carried out within a period of 14 days as set out under Order 6 Rule 18, it could not be entertained.

2. The civil revision is filed by the decree holder claiming that the power of the Court to extend the time is not taken away and such a power exists both u/s 148 CPC and in terms of Order 6 Rule 18 itself. Order 6 Rule 18 reads thus:--

18. Failure to amend after order.--If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.

Section 148 CPC which provides for extension of time would also be required to be reproduced and reproduced as under:--

148. Enlargement of time.--Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may in its discretion from to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired.

3. Learned counsel appearing on behalf of the respondent would contend that in terms of the language under Order 6 Rule 18 if the amendment is not carried out within a period of 14 days then there is a statutory mandate not to permit to amend the plaint after the expiration of such period. This application has actually come after passing of the decree and he would contend, therefore, that the amendment must be taken as deemed to have been refused. The counsel would also point out that there is not even an application u/s 148 for extension of time and therefore, the Courts power cannot be exercised.

4. Order 6 Rule 18 with a stipulation for setting out a time limit for carrying out amendment does not take away the power of the Court to extend the time. This must normally be taken as exercised by the trial Court whose order was not carried through by the amendment in the pleadings. If there exists a power then the fact that the petitioner did not file an application for extension u/s 148 cannot be taken as material, since an application had indeed been filed but it was stated as an application filed under Order 6 Rule 18. The appropriate provision under which the application had been filed must be taken as one filed under Order 6 Rule 18 read with Section 148 CPC. The only question would be whether the discretion must be exercised at the stage beyond the trial of suit and after passing of judgment. That has to depend on whether the Court was adjudicating with reference to the property which was sought to be included or whether there is anything contained in the judgment, which will show that the Court had not applied itself with reference to particular properties which were sought to be included.

5. I have examined the basis of the claim of the plaintiff and gone through the judgment. The facts narrated in the judgment reveal that the property including the property which was omitted were the properties of Noor Baksh and as per the plaintiffs contention Ibrahim was stated to the owner of half share and after Ibarahims death his wife Rehmati was entitled to a share admissible under the Muslim Law to her husband Ibrahim and after Rehmatis death, the property belonged to the plaintiff and the 2nd defendant in equal shares. It was the 1st defendant who entered a contest claiming the share that belonged to Ibrahim and his wife Rehmati on a plea that he was an adopted son and set up an adoption deed as well. The Court rejected the document of adoption filed before the Court as not establishing adoption and proceeded to hold that the plaintiff and 2nd defendant only were the owners. On such a line of reasoning, it could only be seen that the Court was not in any way excluding a claim to right of the property for the plaintiff and the 2nd defendant for the properties that were omitted to be included pursuant to the amendment. No prejudice could be, therefore, said to be caused and no new rights could be said to have been obtained by the plaintiff which was not adjudicated by the court. If it was brought through an amendment, I direct such amendment was required to be carried out in the plaint as well as in the decree and the delay in filing the application was required to be condoned to do substantial justice to the party who had obtained a favourable consideration in suit by full-fledged judicial reasoning. The impugned order is set aside and the amendment as sought for is directed to be carried out in the plaint as well as in the decree that came to be ultimately passed. The revision petition is allowed. No costs.