1. This petition has been preferred under Article 227 of the Constitution of India challenging the order of learned Senior Civil Judge, Surat on an application filed at Exh.66 on 21.3.2012 permitting the plaintiff to carry out amendment after the lapse of 14 days.
2. The petitioners herein are the original defendants in a suit preferred by the respondents being Regular Civil Suit No.184 of 2003 seeking relief of declaration and the consequential relief of mandatory injunction, written statement was filed by the present petitioners vide Exh.10.
An application Exh. 41 was preferred by the plaintiffs under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short “ the Code”), which was partially allowed and the amendment sought was to be carried out within 14 days of the date of order dated19.7.2008.
3. Such an order was challenged before this Court by preferring Special Civil Application No.11627 of 2008 and the same was rejected by an order dated 23.8.2010.
Furthermore, this was challenged before Division Bench of this Court in Letters Patent Appeal No.2193 of 2010 on 23.8.2010 but the same was rejected. Thereafter, when challenged before the Apex Court in SLP(Civil) No.21573 of 2011 on 9.2.2012, the same was rejected.
Thereafter, an application was preferred by the present petitioners citing lapse on the part of the plaintiff and the learned Senior Civil Judge rejected an application Exh.66 vide order dated 21.3.2012 permitting the plaintiff to comply with execution order passed below Exh.41.
Being aggrieved by such a direction, this petition is preferred.
4. It is urged by the learned advocate Mr.Dhaval D. Vyas that Order 6 Rule 18 would not permit amendment after the expiration of the limited time of 14 days prescribed under the law and with there being no request or any application by the plaintiffs for extension of the time, the Court below ought not to have and could not have permitted the plaintiffs to effect the order passed below Exh.41.
5. It is also contended that powers under Order 6 Rule 18 is to enlarge and extend the time for effecting the amendment, which cannot exceed 30 days in total from the period originally fixed at Exh.41. The plaintiffs could, at the most, get the extension upto 44 days. This being a mandatory limit under the Code, the trial Court ought not to have granted the permission to amend after condoning the delay of nearly 3 ½ years.
He has sought to rely upon the decision of the Rajasthan High Court in the case of Darshan Singh vs. Kewal Krishan and another reported in AIR 2003 Rajasthan 313, wherein the Court has held that Section 148 empowers the Court to enlarge the time allowed by the Court or prescribed by the Code. However by the Code of Civil Procedure (Amendment) Act,1999, the said provision stood amended to the effect that the period can be extended by the Court not exceeding thirty days in total. The Amendment Act, 1999, providing for repeal and saving does not save anything, so far as Section 148 of the Code is concerned and, therefore, it being a procedural law, it may be held that the Court may have the power to extend the period but not beyond the period of thirty days in toto from the date of expiry of the period.
It would be profitable to reproduce Order 6 Rule 18 of the Code before adverting to the contentions raised by the learned advocate for the petitioners:-
“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.
6. In the event of request to amend the pleadings having been allowed, the same is required to be carried out within the time prescribed by the order itself. However, the provision of Order 6 Rule 18 states that if no time is prescribed, then the same has to be within 14 days from the date of order and after such expiration of the limited period, no amendment can be carried out unless the Court extends the time.
Order 6 Rule 18 does not state the limit of 30 days. However, Section 148 of the Code provides discretion to enlarge the time allowed by the Court or prescribed by the Code, which is 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 time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired.”
7. The question, therefore, is as to whether the Court has discretion of only extending the period for 30 days or it would have power to do it beyond 30 days as well ?
This Court, in case of Nareshchandra Chinubhai Patel vs. The State of Gujarat reported in 1975 GLR 892 , taking recourse to Section 148 of the Code, held that the embargo of not permitting to amend after the expiration of the period fixed or granted in the Court's 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. Thus in both the cases, the Court has power to extend such time where the time was not fixed or granted in the order permitting the amendment in such circumstances where the period 14 days, as prescribed under the law, would have operated as also in cases where the order has been passed for the specified period. While deciding this case, the Court has also relied on some of the judgments of the Supreme Court and other High Courts, where also Section 148 was discussed which in terms allowed the extension of time even if the original period fixed had expired. It would be relevant to quote the decision of the Supreme Court in the case of Mahant Ram Das vs. Ganga Das report ed in AIR 1961 SC 882 , where the Apex Court has held thus:-
“ Where a Bench of the High Court, while deciding an appeal in favour of the appellant, passed a peremptory order fixing the period for payment of deficit Court fee and the appellant made an application for extension of time before the time fixed had run out, but the application came on for hearing before a Division Bench after the period had run out.
It was held that the High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment. Sec.148, in terms, allowed extension of time, even if the original period fixed had expired, and Section 149 was equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. An order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired.”
xxx xxx xxx “ The procedural orders though peremptory ( conditional decrees apart) are, in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed.
Secs. 148,148 and 151 clothed the High Court with ample power to do justice to a litigant if sufficient cause was made for extension.”
8. There is yet another decision of the Andra Pradesh High Court, which requires reference where in the case of Banku Ramulu Patrudu vs. Konda Narayana Raju reported in AIR 1962 AP 527, the Court was of the opinion that if there is bona fide mistake committed, if necessary for exercise of inherent powers vested in the Court under Section 151 of the Code, the purpose of meeting the ends of justice would be sub- served.
9. The Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India reported in AIR 2005 SC 3353 , of course, was deciding in respect of Section 148, as amended by Amendment Act, 1999 and the time limit of doing the act of enlargement by the Court. There also the Supreme Court relied on its earlier judgment in the case of Mahant Ram Das vs. Ganga Das (supra) to hold thus:-
“45. The amendment made in Section 148 affects the power of the Court to enlarge time that may have been fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the Court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of Court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to fully operate. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for the reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the Court for performance of an act prescribed or allowed by the Court.”
10. In light of the above referred decisions, it can be deduced that while passing an order of amendment under Order 6 Rule 17 of the Code, the Court can either fix the time period in the order itself and in the absence of such fixing of the time, the law provided for the expiry of the time period of 14 days. However, such period of 14 days can be extended by the order of the Court. Section 148, after the amendment in the Code, permitted such extension for the period of thirty days. It is to ensure that at every stage of proceedings, any period fixed or granted for doing any act, such period shall not exceed thirty days in total. It is in clear terms held in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India (supra) that the provision of Section 148 cannot take away the inherent powers of the Court to pass the order as that may be necessary to meet the ends of justice or to prevent the abuse of process of Court. The Supreme Court went to the extent of saying that the rigid operation of the Section 148 would be an absurdity and, therefore, if the act of amendment could not be performed within thirty days for the reasons beyond the control of the party, exercise of inherent powers under Section 151 of the Code by the trial Court is permitted to extend such period of amendment beyond thirty days from the expiry of the date of order or from expiry of the period of 14 days, if no explicit order had been passed.
11. The only rider, as can be noted from the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India (supra) is that once the time for doing the act is prescribed under the provision of Limitation Act, the same cannot be extended either under Section 148 or Section 151 of the Code.
12. Adverting to the facts of the instant case, it can be noted that while allowing the application for amendment to pleadings under Order 6 Rule 17 of the Code on 19.7.2008, the Court allowed partially such an application. However, no time period was prescribed for carrying out such an amendment and, therefore, the period of 14 days prescribed under the law would be applicable under the Code, which expired long ago.
It needs to be noted that admittedly such an order of grant of amendment was challenged by way of writ petition being Special Civil Application No. 11627 of 2008 and the same was rejected on 23.8.2010. After such rejection, the petitioner herein challenged it before the Division Bench of this Court in Letters Patent Appeal No. No.2193 of 2010 and that too was rejected. Being aggrieved by such rejection, the petitioner once again approached the Supreme Court in SLP (Civil ) No. 21573 of 2011, which too did not favour petitioner and denied intervention by order dated 9.2.2012. And, therefore, it can be said that journey which started by passing an order on 19.7.2008 could be over on 9.2.2012.
It can be noted that on 20.9.2008, an application was moved Mark as Exh.66 on the ground that neither the amendment was carried nor was any order obtained and, therefore, the very order does not survive, which was heard recently and Court after bipartite hearing and noting down 22 authorities on the subject, rejected such an application mainly on the ground that the matter was subsisting before the higher forum vide its order dated 21.3.2012.
Effectively, therefore, it can be stated that the challenge made to the order of grant of amendment under Order 6 Rule 17 ended on 9.2.2012. Calculating 14 days period from 9.2.2012, the time period available with the respondents would be upto 24.2.2012. The Court is within its discretion to extend the period upto thirty days and, therefore, statutorily also upto 24.3.2012, there is no dispute by the petitioners also that the Court has authority to extend the time period under Section 148 of the Code. Order impugned is dated 21.3.2012 and, therefore, also no challenge can be sustained. Assuming that the Court had extended the time beyond the period of thirty days, then also, if there were circumstances beyond the control of the respondents, the Court is within its power to extend the period beyond thirty days invoking the inherent powers of the Code.
13. In light of the discussion held hereinabove, no infirmity nor jurisdictional error could be pointed out necessitating any interference under the supervisory jurisdiction of this Court. Resultantly, this petition is dismissed in limine.
(Ms.Sonia Gokani, J.) sudhir