Uttarakhand High Court
Ambrish Kumar Agarwal vs Thakur Dass on 8 September, 2015
Equivalent citations: 2016 AIR CC 243 (UTR), (2016) 157 ALLINDCAS 820 (UTR), (2016) 114 ALL LR 516, (2016) 131 REVDEC 86, (2016) 2 CIVILCOURTC 700, (2016) 2 UC 1314, (2016) 1 ALL RENTCAS 528, (2016) 1 CURCC 514
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2226 (MS) of 2015
Ambrish Kumar Agarwal. .......Petitioner.
Versus
Thakur Dass. .......Respondent.
Present:
Mr. B.K. Gupta, Advocate for the petitioner.
Hon'ble 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.
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.
Landlord / plaintiff / respondent, herein, has moved an application seeking amendment in paragraph 7 of 2 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.
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.
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.
According to Mr. B.K. Gupta, Advocate for the petitioner, if amendment is not carried out in the duplicate 3 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.
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.
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 VI Rule18. 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."
"Order VII Rule 11. Rejection of plaint-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;4
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law :
[(e) where it is not filed in duplicate; [(f) where the plaintiff fails to comply with the provisions of Rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]"
Language of Rule 1 of Order IV CPC would demonstrate that every suit shall be instituted by presenting a plaint, in duplicate, to the Court or such officer, as it appoints in this behalf and every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable. If plaint does not comply with the sub-Rules (1) and (2) of Rule 1 of Order IV, then plaint shall not be deemed to be duly instituted.5
Perusal of Order VI Rule 18 would demonstrate that if amendment is allowed, then amendment has to be carried out within the time limited for that purpose by the order of the court. However, if no time is limited by the order to carry out the amendment in the pleadings, amendment has to be carried out within fourteen days from the date of order permitting amendment and after expiry of 14 days, party shall not be permitted to carry out the amendment, unless, of course, time is extended by the court. In other words, as per Rule 18 of Order VI, if time is not limited by the court while allowing the amendment, then amendment has to be carried out within 14 days from the date of order and court, for sufficient reasons, may extend time beyond 14 days to carry out the amendment. If amendment is not carried out within time or within extended time, as the case may be, amendment shall not be permitted to be carried out thereafter, unless time is further extended.
Language of Order VII Rule 11 would suggest that plaint shall be rejected in either of the contingencies mentioned in Rule 11 viz. if plaint does not disclose a cause of action; or when relief claimed is undervalued and the plaintiff has failed to correct the valuation, despite order passed by the court, within a time fixed by the court to carry out amendment in the valuation clause; or where plaintiff has failed to pay deficit stamp duty / court fees, within such time, as fixed by the court; or where the suit appears from the statement in the plaint to be barred by any law; or where plaintiff has not filed plaint in duplicate; or where the plaintiff has failed to comply with the provisions of Rule 9.
It is important to mention herein that clause (e) and
(f) of Rule 11 of Order 7 were added by 2002 Amendments, that 6 too after amendment in Order IV Rule 1 and amendment in Order VII Rule 9 CPC.
In the present case, the only question involved is - As to whether plaint should be rejected under Order VII Rule 11 (e) CPC because plaintiff has failed to carry out the amendment in the duplicate copy of the plaint.
If Order VII Rule 11 (e) CPC is read with Order 4 Rule 1 and Order VI Rule 18 CPC, the only interpretation would be that if plaint is not filed in duplicate and plaintiff has failed to file duplicate copy of the plaint within such extended time, as the court directs, court may reject the 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 the event of allowing amendment in the plaint, amendment has to be carried out in the original copy of the plaint as well as in the duplicate copy of the plaint, within such time, as stipulated by the order or within such extended time, as envisaged under Rule 18 of Order VI. If amendment is not carried out in the duplicate copy of the plaint, it will not be fatal to the plaint. This defect is curable and it can be cured within such time, as fixed by the court by exercising powers under Rule 18 of Order VI CPC. Therefore, no interference is called for in the impugned judgments and orders passed by both the courts below.
However, in the peculiar facts and circumstances of the case, I direct that learned trial court shall grant reasonable time to the plaintiff to carry out the amendment in duplicate copy of the plaint, as required under Order VI Rule 18 CPC. It goes without saying that if plaintiff fails to carry out the amendment within such time, as fixed by the trial court, trial 7 court shall be at liberty to pass appropriate orders, in accordance with law.
In view of the above, petition fails and is hereby dismissed, in limine. CLMA No. 10540 of 2015 also stands disposed of accordingly.
(Alok Singh, J.) 08.09.2015 SKS