IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30 .03.2011
CORAM:
THE HONOURABLE MR.JUSTICE K.VENKATARAMAN
C.R.P.(PD)No.3291 of 2009
and
M.P.No.1 of 2009
C.A.Khabeer : Petitioner
Vs.
Hindustan Engineering Training Centre,
40, G.S.T.Road,
St.Thomas Mount,
Chennai-16. : Respondent
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India praying to set aside the order dated 31.07.2009 made in I.A.No.1083 of 2008 in O.S.No.159 of 1986 on the file of the District Munsif Court, Chengalput.
For Petitioner : Mr.C.A.Khabeer
Party-in-Person
For Respondent : Mr.M.S.Krishnan
Senior Counsel
For Mr.J.James
********
ORDER
******
The present Civil Revision Petition is filed challenging the fair and decretal order dated 31.07.2009 of the learned District Munsif Court, Chengalput, made in I.A.No.1083 of 2008 in O.S.No.159 of 1986.
2. The seventh defendant in O.S.No.159 of 1986 filed an application under Order 8 Rule 9 and Section 151 of the Code of Civil Procedure to receive the statement for the counter claim filed at the instance of the eight defendant. The said application was allowed and the present revision is directed against the said order.
3. The brief facts of the case is set out hereunder:
(a) One C.A.Malick filed the above referred suit against one Mehrunnisa Bi and others including against one M/s.Hindustan Institute of Engineering College, Training Centre Society and Technology, represented by its Director K.C.G.Verghese, for declaration declaring his right over ‘A’ and ‘B’ schedule property. The petitioner herein filed a counter claim in the said suit. The suit as well as the counter claim were dismissed by the learned District Munsif, Chengalput, by his judgment and decree dated 28.02.2002. The plaintiff has not preferred any appeal. The petitioner/eighth defendant alone has preferred an appeal in A.S.No.47 of 2002 before the learned Principal Subordinate Judge, Chengalput. The said appeal was filed by him against the dismissal of his counter claim alone. The appeal was also dismissed on 23.07.2003. The petitioner filed a second appeal before the Principal Court in S.A.No.2279 of 2003. The same was allowed on 08.11.2006 by remanding the matter to the trial Court only for the purpose of deciding the counter claim of the petitioner.
(b) After remand, the respondent herein filed an application in I.A.No.1083 of 2008 to receive the statement in the counter claim filed by the petitioner. The said application was allowed by the Court below and the present revision is directed against the said order.
4. Resisting the application preferred by the respondent herein, the petitioner, party-in-person raised the following points:
(i) M/s.Hindustan Engineering Training Centre was not a party to the suit in O.S.No.159 of 1986 on the file of the learned District Munsif, Chengalput. The seventh defendant in the said suit was only M/s.Hindustan Institute of Engineering College, Training Centre Society and Technology, represented by its Director K.C.G.Verghese. Hence, the application preferred by M/s.Hindustan Engineering Training Centre in I.A.No.1083 of 2008 for reception of statement in the counter claim is not valid and hence, liable to be dismissed.
(ii) The learned counsel, who appeared for the respondent, was not authorized to conduct the case and he has no valid vakalat to conduct the case on behalf of the respondent/seventh defendant.
(iii) The respondent/seventh defendant has no locus standi to file an application to receive the statement in the counter claim.
(iv) The application was filed belatedly.
5. The trial Court allowed the application filed by the respondent holding that
(i) This Court, while disposing of the second appeal in S.A.No.2279 of 2003 at the instance of the petitioner, directed the trial Court to dispose of the same, after affording opportunity to all parties. Hence, the trial Court has entertained the application preferred by the respondent herein.
(ii) The claim made by the petitioner alleging that M/s.Hindustan Institute of Engineering College, Training Centre Society and Technology was only a party to the suit and not M/s.Hindustan Engineering Training Centre, has to be rejected, since as per the order in I.A.No.21 of 1987, dated 08.01.1987, the name of the seventh defendant in the suit was amended as M/s.Hindustan Engineering Training Centre instead of M/s.Hindustan Institute of Engineering College, Training Centre Society and Technology. The said fact was not taken into account by the petitioner herein.
(iii) The petitioner himself in the said second appeal has arrayed the tenth respondent as M/s.Hindustan Institute of Engineering Technology, Hindustan Engineering Training Centre and Hindustan College of Engineering, represented by its Director. At that point of time, the petitioner has not raised a plea that the above institutions are different entities and Hindustan Engineering Training Centre is not a party to the suit. Having not raised the said plea in the second appeal, the petitioner cannot be allowed to raise now.
(iv) The respondent was represented by Sri.M.B.Venkataperumal, who has got valid vakalat to conduct the case on behalf of the respondent herein.
6. In this revision also, the petitioner, party-in-person raised the same objections, which were raised before the Court below.
7. I have carefully considered the contention raised by the petitioner, party-in-person and Mr.M.S.Krishnan, learned Senior Counsel appearing for the respondent.
8. It is contended by the petitioner, party-in-person that the first and the second amendment of the plaint discloses that the seventh defendant is referred as Hindustan Institute of Engineering College, represented by its Director. While so, the respondent herein, viz., Hindustan Engineering Training Centre cannot file an application for receiving the statement in the counter claim made by the petitioner. That apart, it has been contended that the amendment pertaining to the seventh defendant, as per order dated 18.01.1987 made in I.A.No.21 of 1987 was not acted upon and hence, it has become non-effective, in view of Order 6 Rule 18 of the Code of Civil Procedure.
9. While considering the said submission, it has to be seen that when the original plaint was called for, it has been found that the amendment was carried out in respect of the name of the seventh defendant as “Hindustan Engineering Training Centre”. Hence, the contention of the petitioner, party-in-person that the amendment pertaining to the name of the seventh defendant was not carried out, even after the application in that regard was allowed, does not reflect the correct position. That apart, in the second appeal filed by the petitioner herein, he has not taken such plea. This has been considered by the trial Court. Paragraph No.6 of the order dated 31.07.2009 of the trial Court is usefully extracted hereunder:
“6. Moreover, it is pertinent to state here that in the second appeal No.2279 of 2003 before the Hon’ble High Court of Madras. The respondent herein has arrayed the petitioner herein as the 10th respondent naming it as M/s.Hindustan Institute of Engineering Technology, Hindustan Engineering Training Centre and Hindustan College of Engineering represented by its director. It is curious to note that though he has given the same nomenclature for the petitioner as Hindustan Engineering Training Centre, no plea was raised by the respondent herein before the Hon’ble High Court of Madras that the Hindustan Institute of Engineering Technology and Hindustan Engineering Training Centre are different entities and Hindsutan Engineering Training Centre is not a party to the original suit. So, the contentions raised by the respondent herein has no rhyme or reason and it is unsustainable either on facts of law.”
10. Much reliance was placed on Order 6 Rule 18 of the Code of Civil Procedure. It will be useful to extract Order 6 Rule 18 of the Code of Civil Procedure:
“18.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 the 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.”
11. The said rule speaks of failure to amend, in spite of the order granting leave to amend. In the given case on hand, an application has been filed in I.A.No.21 of 1987 to amend the name pertaining to the seventh defendant and the same was ordered on 18.01.1987. The amendment was carried out in the plaint. As stated already, the original plaint was called for and it has been found that the amendment was carried out. Order 6 Rule 18 speaks of failure to amend, inspite of the leave granted by the Court. But that is not the position in the present case on hand. Hence, I am of the considered view that the contention raised by the petitioner, party-in-person in this regard has to be rejected.
12. The next submission of the petitioner, party-in-person is that the advocate, who signed and presented the petition, which order is under challenge in this revision, has not filed in the trial Court a valid vakalat signed by the petitioner i.e., in I.A.No.1083 of 2008. While considering the said submission, it has to be seen that in the affidavit filed in support of the application seeking to receive the statement in the counter claim made by the respondent herein, which order is under challenge in this revision, the name of the seventh defendant was shown as M/s.Hindustan Engineering Training Centre. However, in the vakalat, the original nomenclature was stated. This can only be a mistake. On this too technical ground, much cannot be harboured by the petitioner, party-in-person. In this connection, the petitioner, party-in-person referred a judgment in Ramkaran v. Shrikishan reported in AIR 1976 RAJASTHAN 130. That is a case, where while dealing with Order 3 Rule 4, the High Court of Rajasthan has held that an advocate is not entitled to plead or act on behalf of the party, if memo of appearance as well as vakalat nama signed by the party for appointment of an advocate, were not filed. In that case, it was alleged in the plaint that the plaintiffs neither engaged one Mr.C.L.Agarwal as their counsel in the High Court nor did they authorize him or give their consent to him to enter into any compromise or agreement on their behalf with the opposite side counsel, who appeared for the defendant. On facts, it has been found that only one person has given vakalat to the said counsel Mr.C.L.Agarwal and the other persons, who have filed the suit, neither signed vakalat nor authorized the said counsel to appear for them. Therefore, they filed the suit questioning the decree passed on the basis of the compromise signed by the said counsel along with the opposite side counsel. In fact, they have appeared as a witness in the suit and deposed that they did not engage the said C.L.Agarwal as counsel. Considering the said facts and circumstances, the Rajasthan High Court has held that an advocate is not entitled to plead or act on behalf of the party, who has not given any authorization for the counsel to file memo of appearance as well as vakalat nama.
13. In the given case on hand, it is not the case of the respondent that it has not given vakalat to the counsel, who has appeared for it. Hence, the Judgment cited above will not be of any use to the petitioner, party-in-person.
14. Yet another decision that has been cited by the petitioner, party-in-person is AIR 1972 RAJASTHAN 152 [Mohanlal Ramchandra v. Union of India]. In that case, the Assistant Government Advocate of the Rajasthan High Court, who had no authority to present the memorandum of second appeal in the High Court, has signed the memorandum and in such circumstances, the High Court of Rajasthan has held that the second appeal was, therefore, incompetent and should have been dismissed. Even the said judgment may not be of any use to the petitioner, party-in-person.
15. Yet another contention that has been raised by the petitioner, party-in-person is that the respondent has taken out the application for receiving the statement in the counter claim made by the petitioner, party-in-person very belatedly. However, the said contention has to be rejected, since in the second appeal referred to above, the Principal Court, while disposing of the same and remanding the matter before the trial Court, directed that opportunity shall be given to all. Hence, the Court below has granted time to the respondent herein to file statement and nothing can be faulted on the said order. In this connection, the learned Senior Counsel appearing for the respondent relied on a decision of the Supreme Court in Zolba v. Keshao reported in AIR 2008 SC 2099. While dealing with Order 8 Rule 1, the Hon’ble Apex Court has held that the delay in filing written statement could be condoned. It has been further held by the Hon’ble Apex Court that proviso to Order 8 Rule 1 is directory and the use of the word “shall” by itself is not sufficient to indicate that it is mandatory in nature. Hence, I am of the considered view that the delay cannot be put against the respondent herein.
16. Summing up the entire discussion made above, I am of the considered view that the Court below has rightly allowed the application preferred by the respondent herein and I do not find any infirmity or illegality in the said order.
17. In fine, the Civil Revision Petition stands dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs.
30.03.2011
Index:Yes
Internet:Yes
SML
To
The District Munsif Court,
Chengalput.
K.VENKATARAMAN, J
SML
Order made in
C.R.P.(PD)No.3291 of 2009
Delivered on:
30.03.2011