Ram Gopal Ganda and ors. Vs. Bhikari Ganda and ors.

Ram Gopal Ganda and ors. vs Bhikari Ganda and ors.

Disposition Revision allowed Court Orissa Decided Apr 22, 1958

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Citation: sooperkanoon.com/524256
Court: Orissa High Court
Judge: S. Barman, J.
Decided On: Apr 22, 1958
Case Number: Civil Revn. No. 192 of 1956
Subject: Civil
Disposition: Revision allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Civil
Outcome / disposition: Revision allowed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Court-fees Act, 1870 - Sections 7

Parties & Advocates

Appellant / Petitioner

Ram Gopal Ganda and ors.

Advocate M.S. Rao and ;M.K.C. Rao, Advs.

Respondent

Bhikari Ganda and ors.

Advocate B.K. Ray, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Court-fees Act, 1870 - Sections 7
Cases Referred: Calcutta High Court Chhatu Lal v. Panchanan
Reported In: AIR1959Ori16

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ), where it was held that when a plaintiff, after making prayers for several kinds of reliefs, wished to abandon some of these with a view to save court-fees, the..........presumably not to be disturbed as no amendment was applied for in respect thereof.3. the only question for consideration in this matter is whether the plaintiffs were entitled to the prayer for amendment of the plaint in the manner aforesaid. under order 6, rule 17 of the civil procedure code, the court has power to alter or amend pleadings as may be necessary. the learned counsel for the plaintiffs, being the petitioners in the present application, cited before me a case decided by a division bench of the calcutta high court chhatu lal v. panchanan, air 1953 cal 755 (a), (k. c. dasgupta and lahiri jj.), where it was held that when a plaintiff, after making prayers for several kinds of reliefs, wished to abandon some of these with a view to save court-fees, the court was bound to allow such an application and that whether as the result of deletion of prayer for some reliefs the suit failed or not was a matter which should be decided at the time of hearing of the suit. their lordships in their judgment observed as follows ; (paragraph 3)-'. . . . .we are clearly of opinion that the learned subordinate judge failed to exercise his jurisdiction that was vested in him to pass an order on the prayer for amendment. when a plaintiff after making prayers of several kinds of relief wishes to abandon some of these with a view to save court fees, the court is bound to allow such application. whether as the result of deletion of prayers forsome reliefs the suit fails or not is a matter which shall be decided at the time of the hearing of the suit. the plaintiff in asking for deletion of his prayer for certain reliefs takes that risk.' i agree with this view expressed by the calcutta high court. in the present case, the plaintiffs were entitled to ask for deletion of one of the prayers i.e. prayer (a), of the plaint and substitution in its place and stead a prayer for partition as prayed for. without expressing any views on merits, it must, however, be made clear that the.....

Full Judgment

ORDER

S. Barman, J.

1. This revision is directed against an order of the Subordinate Judge, Bolongir, in T. S. No. 25 of 1954 rejecting the plaintiff's petition for amendment of the plaint.

2. The plaintiffs in this suit claiming to be Hindus governed by the Mitakshara Law, filed this suit against the defendants praying for reliefs mentioned in paragraph 8 of the plaint which were as Follows :

'8. The plaintiffs claim -

(a) declaration that they are entitled to 1/6 share each of the Schedule A lands i.e. 1/2 of the whole together, and partition accordingly through Court;

(b) delivery of possession of the shares to the parties after partition by metes and bounds:

(d) costs of the suit; x x x x x'.

Written statement was duly filed by the defendants. Thereafter the Stamp Reporter reportedthat in view of the nature of the prayer in theplaint, the suit fell within the purview of Section 7(iv)(c) of the Court-fees Act. Thereupon, the plaintiffs made an application for amendment of theplaint by deleting prayer (a) which was a prayerfor declaration of title and substituting therefor thefollowing prayer:

'The Schedule 'A' lands be partitioned and the plaintiffs be given 1/6 share each of the Schedule 'A' lands i.e., Re. 1/2 of the whole together.'

The remaining prayers (b), (c) and (d) were presumably not to be disturbed as no amendment was applied for in respect thereof.

3. The only question for consideration in this matter is whether the plaintiffs were entitled to the prayer for amendment of the plaint in the manner aforesaid. Under Order 6, Rule 17 of the Civil Procedure Code, the Court has power to alter or amend pleadings as may be necessary. The learned Counsel for the plaintiffs, being the petitioners in the present application, cited before me a case decided by a Division Bench of the Calcutta High Court Chhatu Lal v. Panchanan, AIR 1953 Cal 755 (A), (K. C. Dasgupta and Lahiri JJ.), where it was held that when a plaintiff, after making prayers for several kinds of reliefs, wished to abandon some of these with a view to save court-fees, the Court was bound to allow such an application and that whether as the result of deletion of prayer for some reliefs the suit failed or not was a matter which should be decided at the time of hearing of the suit. Their Lordships in their judgment observed as follows ; (paragraph 3)-

'. . . . .we are clearly of opinion that the learned Subordinate Judge failed to exercise his jurisdiction that was vested in him to pass an order on the prayer for amendment. When a plaintiff after making prayers of several kinds of relief wishes to abandon some of these with a view to save court fees, the Court is bound to allow such application. Whether as the result of deletion of prayers forsome reliefs the suit fails or not is a matter which shall be decided at the time of the hearing of the suit. The plaintiff in asking for deletion of his prayer for certain reliefs takes that risk.'

I agree with this view expressed by the Calcutta High Court. In the present case, the plaintiffs were entitled to ask for deletion of one of the prayers i.e. prayer (a), of the plaint and substitution in its place and stead a prayer for partition as prayed for. Without expressing any views on merits, it must, however, be made clear that the plaintiffs in asking for the amendment of the plaint as prayed for were so doing at their own risk as to the ultimate fate of the suit and that one of the main questions to be decided in the suit would be whether or not there can be partition without declaration of title which has already been denied in the defendants' written statement.

4. I, therefore, allow this revision and set aside the order of the learned subordinate Judge. The prayer for amendment of the plaint as prayed for by the petitioners is granted. There will be no order as to costs.

Same Parties Ram Gopal Ganda and ors. vs Bhikari Ganda and ors. Same Subject Civil Same Judge S. Barman, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Cour...

Civil