Tarachand Sawarmal Modi Vs. Sheo Prakash Muraka - Court Judgment

Excerpt:
- 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 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]. orderl. mohapatra, j.1. heard learned counsel for the petitioner. the opposite party has already entered appearance through counsel. therefore, no notice is required to be issued.2. though this matter was listed for admission, on consent of learned counsel for the parties, it is taken up for disposal.3. the order dated 6.12.2004 passed by the learned civil judge (junior division), jharsuguda in c.s. no. 16 of 2004 rejecting an application filed under order 6 rule 17 c.p.c. is under challenge.it appears from the impugned order that the said petition filed for amendment of the plaint was rejected on the ground that trial of the suit has already started and therefore under the amended provision of the c.p.c. the amendment cannot be allowed. second ground of rejection is on merit of the case. so far as first ground of rejection is concerned, learned counsel for the petitioner relied upon a decision of the apex court in the case of ameer trading corporation limited v. shapoorji data processing ltd., reported in air 2004 s.c.355. the apex court in the aforesaid decision has held that in appellable cases the examination-in-chief of a witness in the form of the affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. it is submitted by the learned counsel for the parties that examination of witnesses has not started. in view of the above, the aforesaid supreme court decision has full application to the facts of the present case and accordingly the amendment could be entertained before examination of witness.so far as other ground is concerned, trial court has observed in the impugned order that if amendment is not allowed there will be no irreparable injury. learned counsel for the opposite party submits that he has no objection if amendment is allowed. considering such submission of the learned counsel for the opposite party i am of the view that the impugned order should be set aside and prayer for amendment should be allowed.4. accordingly, the order dated 6.12.2004 passed by the learned civil judge (junior division), jharsuguda in c.s. no. 16 of 2004 is set aside. prayer for amendment of the plaint is allowed.the writ petition is allowed accordingly.urgent certified copy of the order be granted on proper application.

Judgment:
ORDER

L. Mohapatra, J.

1. Heard learned counsel for the petitioner. The opposite party has already entered appearance through counsel. Therefore, no notice is required to be issued.

2. Though this matter was listed for admission, on consent of learned counsel for the parties, it is taken up for disposal.

3. The order dated 6.12.2004 passed by the learned Civil Judge (Junior Division), Jharsuguda in C.S. No. 16 of 2004 rejecting an application filed under Order 6 Rule 17 C.P.C. is under challenge.

It appears from the impugned order that the said petition filed for amendment of the plaint was rejected on the ground that trial of the suit has already started and therefore under the amended provision of the C.P.C. the amendment cannot be allowed. Second ground of rejection is on merit of the case. So far as first ground of rejection is concerned, learned counsel for the petitioner relied upon a decision of the Apex Court in the case of Ameer Trading Corporation Limited v. Shapoorji Data Processing Ltd., reported in AIR 2004 S.C.355. The Apex Court in the aforesaid decision has held that in appellable cases the examination-in-chief of a witness in the form of the affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. It is submitted by the learned counsel for the parties that examination of witnesses has not started. In view of the above, the aforesaid Supreme Court decision has full application to the facts of the present case and accordingly the amendment could be entertained before examination of witness.

So far as other ground is concerned, trial Court has observed in the impugned order that if amendment is not allowed there will be no irreparable injury. Learned counsel for the opposite party submits that he has no objection if amendment is allowed. Considering such submission of the learned counsel for the opposite party I am of the view that the impugned order should be set aside and prayer for amendment should be allowed.

4. Accordingly, the order dated 6.12.2004 passed by the learned Civil Judge (Junior Division), Jharsuguda in C.S. No. 16 of 2004 is set aside. Prayer for amendment of the plaint is allowed.

The writ petition is allowed accordingly.

Urgent certified copy of the order be granted on proper application.