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Judgment
Ajoy Nath Ray, J.—This application raises an interesting point of the consequence and effect of non-incorporation of an amendment ordered to be made in the ''pleadings, i.e., which has not been actually written into the pleading itself.
The suit in question was originally filed in Alipore and was transferred to this Court sometime in November 1990, some nine years after the suit was filed on March 3, 1981.
There are five Defendants in the suit and the 4th Defendant was the seller of the goods carried by sea and also the consignor thereof.
The plaint originally claimed as against the Defendant No. 4 only a sum of Rs. 1,85,775-10. As against, however, the Defendants Nos. 1, 2, 3 and 5, the claim was for far larger sum of Rs. 56,87,791-12. This difference in claim was made prominent inter alia at para. 18 of the plaint and at claim (a) at the end of the plaint.
It was explained in the plaint that the. Claim as against the 4th Defendant was for the, value of the undelivered or short-landed quantity of 87,500 metric tonnes of fertilizers, but that the larger claim as against the other Defendants who were alleged to be concerned with the ship, was in respect of the damages to the far larger quantity of goods (about 18 thousand M.T.) that was carried and was, according to the Plaintiff, damaged. In the first paragraph of the plaint, the fourth Defendant is simply described as the seller of the goods. The first Defendant is, however, alleged to be the owner of the cargo ship, the second as the ''operator'' of the ship, the third as the time charterer and the fifth as the local agent of the first three Defendants.
A little under 3 years after filing the suit, the Plaintiff wanted to make the larger claim of above Rupees 1/4 crore as against the 4th Defendant also. It applied for an amendment to that effect before the Alipore Court and got an order in its favour on February 14, 1984. At that stage, the 4th Defendant had no notice, since the writ of summons had not yet been served upon the 4th Defendant. The order, however, curiously records ''Hd. both sides''.
The amendments permitted on February 14, 1984, are strange amendments. The body of the plaint, even if amended, will contain only this allegation as against the 4th Defendant that the said quantity of 87.500 metric tonnes was undelivered. The entirety of the amended plaint does not contain a single allegation as against the 4th Defendant from which it would appear that the said Defendant had anything to do with the damage of the goods shipped during carriage. The amendment is, therefore, strange as it does not lay any foundation as to why the claim as against the 4th Defendant for under Rs. 2,00,000 should suddenly jump to above Rupees a crore.
On or about May 23, 1984, the plaint was advertised in the papers and the advertisement contained the larger claim as against the 4th Defendant. The advertisement assumed that the order of amendment had been already made effective by its incorporation in the plaint. It was a wrong assumption. The plaint remains unaltered even to-day.
The order passed on February 14, 1984, directed that the petition ''be made part of the plaint'' and that the ''plaint and register'' be amended accordingly. It was submitted by Mr. Hirak Kumar Mitter appearing for the Plaintiff-Applicant that the said order itself competed the process of amendment and that nothing more remained to be done to the plaint. Alternatively, Mr. Mitter submitted that the incorporation of the alteration allowed by the Court was to be made by the concerned department of the Alipore Court and the Plaintiff had no further duty in the matter. The incorporation should, therefore, be allowed to-day, so that the practice of this Court, that amendments are shown by writing them into plaint itself, be followed, now that the suit has been transferred to this Court.
The CPC applied to all Civil Courts and the Alipore Court is no exception. The practice of a Court must play a role subservient to the express words of the Code. Order 6, Rule 18 provides that after obtaining leave to amend pleadings the party must amend within 14 days, if he does not do so he cannot, thereafter, amend without obtaining a time extension from the Court. Order 6 Rule 18 is as follows:
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.
The other Rule applicable to Civil Courts and therefore to the Alipore Court, also, is Order 6 Rule 15 which calls for verification of all pleadings. The said Rule is as follows:
Verification of pleadings.
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
It cannot be that a pleading will originally require verification under Order 6 Rule 15, but that the amended pleading will not require a similar verification. Any addition or alteration changes the pleading itself to another pleading different from what was filed and the latter pleading cannot class as a pleading at all within the Code unless it is verified in the same manner as an original pleading is to be verified.
Irrespective of the practice of the Alipore Court, therefore, the re-verification of an amended pleading is a must. Even if it is assumed that the department of the Alipore Court follows the practice of putting in the extra words or altering the words as ordered by Court, yet no practice of the Alipore Court can rise above Order 6 Rule 15 so that the Plaintiff would have to reverify the altered plaint in the same manner as it has verified the plaint at first.
If the department has not made the alteration within 14 days, the ball, so to speak, is in the Plaintiff''s Court and the Plaintiff must obtain a time extension and must activate the department to do its work. It will not do for the Plaintiff to say that the act of the Court (or its inaction) it will not prejudice any party. The incorporation of the amendment is, in the view most favourable �o the Plaintiff, a joint effort of the Plaintiff and the Alipore department, so that if the incorporation and the reverification do not get completed within a fortnight, it is for the Plaintiff to move the Court and see to it that the amendment is made effective in accordance with law.
What, then, is the effect of an amendment which is, ordered but not incorporated. The Rules of the Supreme Court in England (i.e., the H. Ct. and C.A. there) provide under Order 20 Rule 9 that if the amending order is not put into effect within fourteen days the order itself shall cease to have effect. Of course the said Rule also preserves for the. Courts in England the same discretion to extend time as we have here under Order 6 Rule 18. The said Order 20 Rule 9 is as follows:
Where the Court makes an order under this order giving any party leave to amend a writ, pleading or other document, then, if that party does not amend the, document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, of a period of 14 days after the order was made, the order shall cease to have effect, without prejudice, however, to the powers of the Court to extend the period.
Though Order 6 Rule 18 does not expressly contain the words that in case of non-incorporation of the ordered amendment ''the order shall cease to have effect'' yet such words must necessarily be read into the said Rule. If these words are not read into the Rule then the duty to incorporate the amendment in the pleading is altogether lifted from the shoulders of the party obtaining leave to amend. Without this, the party would be free to contend that by obtaining the order to amend he has obtained in effect an amendment of the pleadings and that he need not incorporate the amendment actually in the pleading. Such a contention would go contrary to the words and spirit of both Order 6 Rule 15 and Order 6 Rule 18.
I have no hesitation in concluding, therefore, that unless the plaint is altered by incorporation of the amendments, the plaint cannot be treated as if it were altered immediately upon the passing of the amending order of-February 14, 1984 without the necessity of actual alteration of the words in the plaint and re-verification thereof.
The fourth Defendant was not present when the amending order was passed and it made an application for recalling the order of amendment on August 24, 1987. Various points were urged in the said application and it was also said that the claim as against the 4th Defendant was barred by limitation before the order for amendment was passed in 1984. The recall application was disposed of by Suhas Chandra Sen J. after the suit was transferred to this Court and His lordship reserved the points (Order dated June 7, 1991) to be taken up again by the 4th Defendant if and when the Plaintiff made an application for extension of time for incorporation of the amendments in the plaint.
That application for incorporation is the present application and this was made on July 17, 1992.
It cannot be disputed that the extension of time under Order 6 Rule 18, is not a matter of course. If any authority is needed for this proposition, then the same can be had from the case of Pahali Raut Vs. Khulana Bewa and Others, being a judgment of R.C. Patnaik J. before His lordship''s elevation to the Supreme Court and His lordship''s subsequent sad demise. That time extension is not a matter of course is said in so many words in para. 9.
It is also an indisputable proposition that in appropriate circumstances delay might defeat the rights in favour of a party even if those rights are equitable once. That delay might defeat equity and that the same is one of the general principles of procedure is recognised inter alia in the case Dilbagh Rai Jarry Vs. Union of India (UOI) and Others, and the relevant paragraph is para. 22.
A Plaintiff, before service of the writ of summons, often obtains an ex parte order for amendment. But that does not mean that the application cannot be opposed by the Defendant in case the Defendant has from somewhere else, the notice of the said application. The position is the same as that of an Applicant obtaining, an ad interim interlocutory order. An ad interim order can be had in the absence of the Respondent, but if the Respondent has notice of the application, then a Respondent cannot be denied a right of say even at the ad interim stage. This is fundamental and follows from the rules of natural justice.
Therefore, in the present case, when the fourth Defendant came to know of the filing of the claim and of the order of amendment, the 4th Defendant had a right to apply for revocation of, the order of amendment. In case the 4th Defendant could satisfy the Court that the amendment order had been unjustly obtained, then the Court would have jurisdiction to recall the order and strike out the amendments even if already incorporated. Any, other view would mean that a Plaintiff, who does not serve the writ of summons, has an easier path towards the amendment of its plaint, than a Plaintiff who is diligent and serves the writ of summons and gives notice of his suit to the Defendant at the first opportunity. In the earlier case the amendment application-would be heard ex parte, but in the latter it would be opposed if the Defendant had a good point to put forward like limitation or erasing of admissions, in the plaint or such like.
The application for revocation of the amendment order was, therefore, made in accordance with law and the points were reserved to be considered on such, an occasion as this when the incorporation of the amendment in the plaint is to be asked for.
Thus the application today has a two-fold relevance; first, I have to consider whether the amendment was appropriately granted on February 14, 1984 and then I have further to consider whether, even, if the amendments were appropriately granted, those should be permitted to be incorporated today in the plaint.
In the matter of consideration, of the appropriateness of the amending order Mr. Goutam Chakraborty submitted, inter alia, that the claim as against the, 4th Defendant was barred within a year after delivery of the cargo which was as early as in August 1981. Mr Chakra-borty relied upon Carriage of Goods by Sea Act of 1925 and also upon the Supreme Court case The East and West Steamship Company, George Town, Madras Vs. S.K. Ramalingam Chettiar, I have considered the said Act and especially Article III Rule 6 of the schedule thereof relating to the bills of lading. The same relieves the carrier and the ship to be discharged from all liabilities in respect of the loss or damage unless the suit is brought within one year. It must be remembered that the Act would apply in terms to outgoing ships from Indian ports and not to the incoming ones, like the vessel Eleftherios here. On a whole, reading of para. 18 of the above Supreme Court judgment, it would also indicate that Their lordships were confirming those express words in the said schedule and were not extending the protection of one year limitation to some other party different from the carrier or the ship. Though the word ''shipper'' has been used in para. 18, I do not read Their lordships'' judgment as extending the cover of one year limitation also to all consignors of goods in general. The liability is ended after one year in so far as the carrier or the ship proceeded against in an admiralty action after the lapse of one year. But the 4th Defendant being a consignor, the suit would lie as against the 4th Defendant within three years which had not expired on the date of the amendment, order.
I have, however, held that the amendments allowed are senseless; they are therefore also unjust. It is unjust to call upon the 4th Defendant to answer a claim for above Rs. � crore, when nobody can make out why that greatly increased sum should claimed from them, instead of the original claim of under Rs. 2 lakhs for undelivered cargo.
After obtaining the amendment order, moreover, the Plaintiff went to sleep. Had it not been for the revocation application of the 4th Defendant made in 1987, it appears that the Plaintiff would, never have woken up or taken any steps to see whether the amendments had actually been incorporated in the plaint of not. There is gross delay on the part of the Plaintiff. The order for amendment was in 1984 and the application for incorporation was made 8 years later in 1992. Unless there are cogent grounds for explaining this delay (which is of such nature as shows negligence and carelessness on the part of the Plaintiff) the same would be sufficient to defeat even equitable rights for incorporation of the amendments in the plaint.
That a party is to amend its pleadings by incorporation, is clear from Order 6, Rules 15 and 18 and the same was also said in the case of Jainul Abedin Vs. Bibi Nisha Khatoon, by a learned single Judge. To the lapse of non-incorporation of the amendment in the plaint for 8 years is added the senselessness of the amendment sought to be incorporated. I have explained why the amendments are senseless. To repeat, they are senseless because they put forward no explanation why the claim of Rs. 2 lakhs as against the consignor for short delivery should be raised to above Rupees half a crore even though the consignor as such is not alleged to have taken any part in the carriage of the goods.
The third factor for disallowing the present application is this that the Plaintiff did not come forward on its own to incorporate the amendment and had to be goaded into action by the 4th Defendant who first pointed out the unincorporated amendments in the plaint in the revocation application mentioned earlier.
The Division Bench judgment in the case of B.C. Gowda v. State of Mysore AIR 1974 Kar. 136 lays down that unless the time is extended by the Court under Order 6 Rule 18, the Plaintiff would not be permitted to rely upon an amended plaint. The necessity of the present application and of the observations made above are thus highlighted because, without the amendment, the Plaintiff would not be entitled even to claim as against the 4th Defendant any sum in excess of the originally claimed amount of Rs. 1.86 lakhs approximately.
For the reasons aforesaid, I am not minded to grant the Plaintiff time to change the plaint at this late stage or re-verify the same now more than 10 years after the plaint was originally filed.
The application is, therefore, dismissed. The costs of the application are assessed at 800 G.Ms. and shall abide by the result of the suit, as between the Plaintiff and the fourth Defendant.