Patna High Court
Kedar Prasad vs Raghunath Prasad on 7 February, 1992
Equivalent citations: AIR1992PAT95, 1995(43)BLJR501, AIR 1992 PATNA 95, (1992) 1 BLJ 474 1995 BLJR 1 501, 1995 BLJR 1 501
ORDER Nagendra Rai, J.
1. Judgment debtor has filed this revision application against the order dated 24-3-1987 passed by Subordinate Judge, 4th Court, Arrah in Misc. Case No. 8 of 1984 rejecting the prayer of the petitioner to make amendment in the application filed under Order 21, Rule 90 of the Code of Civil Procedure (hereinafter to be referred to as the Code) on the ground that it has no power to allow the amendment of the said petition.
2. The circumstances under which the matter has come before this Court arc these :
The decree-holder opposite party obtained a money decree against the petitioner and put the same in execution and purchased his property in the auction sale held in the year 1983. The judgment-debtor petitioner, after coming to know about the aforesaid auction sale, filed an application under Order 21, Rule 90 of the Code to set aside the same and the said case was registered as Misc. Case No. 8 of 1984.
3. During the pendency of the aforesaid application, the petitioner filed a petition on 28-4-1986 for amendment of the application to the effect that due to inaction, collusion and misdoing of the advocate appearing for the petitioner, his property was auction sold at a very low price. The decree-holder filed a rejoinder petition denying the assertion made in the said petition and further stated that the amendment petition has been filed only with a view to delay in disposal of Misc. Case.
4. The Court below by the impugned order rejected the aforesaid petition on the ground that the provisions of Order 6, Rules 1 and 17 of the Code, which provide for the amendment of the pleadings, do not apply in a case for amendment of petition under Order 21, Rule 90 of the Code.
5. Learned counsel appearing on behalf of the petitioner contended that the Court below failed to exercise the jurisdiction vested in it on erroneous ground that it has no power to allow amendment petition filed under Order 21, Rule 90 of the Code. Order 6, Rule 17 is not exhaustive of the powers of the Court in the matter of amendment and the Court in appropriate cases has power to allow the amendment in exercise of its power preserved under Section 51 of the Code. The learned counsel for the opposite party, on the other hand, contended that Order 6, Rule 17 of the Code applies to amendment of the pleading and the pleading has been defined under Order 6, Rule I of the Code which includes plaint or written statement and as such the Court has no power to allow amendment of the petition filed under Order 21, Rule 90 of the Code. He also contended that the amendment sought for on behalf of the judgment-debtor is a frivolous one and the Court below rightly rejected the prayer of the judgment-debtor (petitioner).
6. The question which falls for consideration in this case is as to whether a Court has power or not to allow the amendment of the petition filed under Order 21, Rule 90 of the Code.
7. Order 6, Rule 17 provides for amendment of the pleadings and Rule 1 of the said order defines pleading according to which it shall mean plaint or written statement. In view of the aforesaid definition of the pleading the provisions of Order 6, Rule 17 will not apply in case of amendment of petitions.
8. But the point for determination is as to whether the Court has power or not to allow amendment of the petition in an appropriate case. The Code of Civil Procedure is not exhaustive for the reason that the legislature is not capable of visualising all the circumstances and situation which may arise in future litigation and to provide a procedure for them. Section 151 of the Code declares the inherent powers of the Court. According to said provision the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is well settled that this section does not confer any right but only declares the rights which is inherent in all the Courts. The power under this section is very wide. If there is no specific provision dealing with a particular subject in the Court then the Court can take the recourse to the inherent powers vested in it if the same is necessary for the ends of justice or to prevent abuse of the process of the Court. However the power under the said section cannot be invoked where there is a specific provision providing for the remedy to the party. In such a case the party has to approach the Court for remedy under the specific provision and not under Section 151 of the Code. The scope of Section 151 came for consideration before the Supreme Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527 wherein it was held as follows:
"Section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it."
Again in the case of Jaipur Mineral Development Syndicate, Jaipur v. Commr. of Income-tax, New Delhi reported in AIR 1977 SC 1348 the apex Court observed as follows (at p. 1350 of AIR):
"The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. To hold otherwise would result in question a number of cases is gross miscarriage of justice."
9. Order 6, Rule 17 of the Code deals only with the amendment of the pleadings and is not exhaustive of all the powers of the Court in the matter of amendment. There is no specific provision under the Code providing for the amendment of the petitions and, in my opinion, even in absence of any specific provision the Court may in appropriate cases allow the amendment of the petition in exercise of power under Section 151 of the Code for the ends of justice or to prevent the abuse of the process of the Court. In the case of Bihari Sahu v. Mt. Sudama Kuer reported in AIR 1938 Pat 209 a question arose before this Court as to whether the Court has power to allow the amendment of an application to sue as pauper and this Court held that the powers of the Court, under Order 6, Rule 17 are not exhaustive and the Court has jurisdiction to allow an amendment to be made in an application to sue as pauper.
10. Amendment of an application under Order 21, Rule 90 of the Code or under other provisions of the Code may be necessary for various reasons. It is neither possible nor practicable to detail the circumstances necessitating such amendment. The Court has power to allow the amendment of application under its inherent power in appropriate cases for the ends of justice or for preventing abuse of the process of the Court. To hold otherwise would result in miscarriage of justice. Accordingly, the lower Court in the present case has wrongly held that it has no power to entertain an application for the amendment of the application under Order 21, Rule 90 of the Code.
11. As the trial Court has rejected the petition for amendment of the application on the ground of its non-availability, the order, for the reasons stated above, has to be set aside. The Court below will consider the application on merit and will dispose of the same in accordance with law. It is to be made clear that the non-entertainment of a petition on the ground of its maintainability is one thing and rejection of the petition on merit is a different thing. If the Court below finds that the application filed by the judgment-debtor has no substance then it can reject the same after hearing the parties.
12. In the result, this revision application is allowed and the impugned order is set aside and the matter is remitted back to the Court below for considering the petition afresh in accordance with law after taking into consideration the observations made above. The Court below is directed to dispose of the matter expeditiously. There shall be no order as to costs.