Sarabjit Singh Anand v. Manjit Singh Anand

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in Digest? V.K. JAIN, J (Oral) IA No. 9588/2006 Vide this application, the plaintiffs had sought disposal of IA No. 9088/2006, which has already been disposed of on 17th February 2010. This application, 2010:DHC:5404 therefore, has become infructuous and is dismissed as such. IA No. 7527/2007 & IA No. 8664/2010 Heard.

1. Admittedly, the defendants did not file written statement within the period stipulated under Order 8 Rule 1 of CPC. They instead filed an application under Order 7 Rule 11 of CPC being IA No. 9987/2006. No application for extension of time to file written statement was filed by the defendants. The aforesaid application was dismissed vide order dated 11th January 2008, with cost of `20,000/-. The Court, vide another order passed on the same day, permitted the defendants to file written statement within 30 days. Admittedly, written statement has been filed within 30 days computed from 11th January 2008 in the order dated 11th January 2008, permitting the defendants to file written statement within 30 days, there is no reference to IA No. 7527/2007, which had been filed much prior to dismissal of IA No. 9987/2006 and in which the plaintiffs had sought preliminary decree of partition on the ground that written statement had not been filed within the outer limit fixed in this regard under Order 8 of CPC.

2. IA No. 8664/2010 has been filed by the plaintiffs on 6th January 2010 seeking amendment of the proceedings of the Court dated 11th January 2008 whereby the defendants were permitted to file written statement within 30 days. The grievance of the plaintiffs, as submitted by plaintiff No.1 Mr Sarabjit Singh Anand, is that there is no provision in the Code of Civil Procedure for extension of time beyond 90 days and there was no reference to his pending IA No. 7527/2007 in the order dated 11th January 2010.

3. It is not permissible for me, sitting as a Predecessor, to amend the order dated 11th January 2008, on an application filed after more than two years of the passing of the order. If the plaintiffs were aggrieved on account of the Court granting time for filing written statement to the defendants despite there being no provision in this regard in the Code of Civil Procedure, the appropriate remedy for them was to challenge that order in the appropriate proceedings or to seek a review of that order.

4. The plaintiff No.1, who is present in Court and has argued in person, has placed reliance upon Section 153 of the Code of Civil Procedure in support of his contention that it is very much permissible for this Court to amend the order dated 11th January 2008. Section 153 of the Code of Civil Procedure, empowers the Court to amend any defect or error in any proceeding and it further provides that all amendments shall be made for the purpose of determining the real question or issue raised by or depending upon such proceedings. This provision deals with defects in the suit or other proceedings and is not intended to apply to a case where an order passed by the Court is assailed on the ground that it was passed in ignorance of or without taking note of a statutory provision and, therefore, the Court could not have passed such an order. The aforesaid provision, in my view, cannot be invoked to challenge an order passed by the Court either on the ground that the Court lacked competence to pass the order or on the ground that there was no provision in the Code of Civil Procedure for passing such an order. This Section is intended to deal with the defects or errors which need to be removed by an amendment such as the cases where the suit/appeal is filed against a dead person and the defect is sought to be remedied by making appropriate amendment in the plaint, or a new cause of action which has arisen after filing of the suit, is sought to be added.

5. It would be worthwhile to note here that this is not an application seeking review of the order dated 11th January 2008. If the plaintiffs want a review of that order, the appropriate remedy is to file an application for review on that order and in terms of the High Court Rules, the Review Petition would be listed before the same Hon’ble Judge who had passed the order dated 11th January 2008.

6. Plaintiff No.1 has placed reliance upon Mohammed Yusuf vs Faij Mohammad and Others (2009) 3 SCC 513 where after referring to its earlier decisions in Kailash vs Nanhku (2005) 4 SCC 480, M. Srinivasa Prasad vs Comptroller & Auditor General of India (2007) 10 SCC 246 and R.N. Jadi & Bros. vs Subhash Chandra (2007) 6 SCC 420, the Supreme Court felt that in the case before it, the High Court should not have allowed the writ petition filed by the respondent. In that case, the defendants did not file written statement within the time stipulated in this regard in the Code of Civil Procedure. The plaintiff/appellant then filed an application before the trial Court for pronouncing judgment in terms of Order 8 Rule 10 of the Code of Civil Procedure. The defendant also filed an application for filing written statement without seeking condonation of delay in filing the written statement. The application filed by the defendant was dismissed by the trial Court. A Revision Petition filed against that order was dismissed by the learned District Judge. The defendant/respondent, thereafter, filed a Revision Petition, which was allowed by the High Court. The High Court while allowing the writ petition had directed that the written statement shall be kept on record and the defendant/petitioner shall be permitted to contest the same on merits subject to payment of cost of `10,000/-. It was also noticed by the Supreme Court that there was no finding by the High Court that there had been a substantial failure of justice or that the order passed by the trial Court as also by the Revisional Court contained error apparent on the face of the record warranting interference by a superior Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. In my view, this judgment can be of no help to the plaintiffs for the simple reason that this Court is not sitting in any appellate proceedings and cannot go beyond the order passed by my learned Predecessor on the merits of the order.

7. For the reasons given in the preceding paragraphs, I find no merit in these applications and the same are hereby dismissed. CS(OS) 1593/2006

8. As requested, to come up for framing of issues on 22nd December 2010.

(V.K. JAIN)

JUDGE NOVEMBER 09, 2010 Ag