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M/S GOEL DISTRIBUTORS & ANOTHER versus AGRABANDHU FOOTWEAR

High Court of Judicature at Allahabad

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M/S Goel Distributors & Another v. Agrabandhu Footwear - CIVIL REVISION No. - 405 of 2007 [2007] RD-AH 16747 (23 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 6

Civil Revision No. 405 of 2007

M/s. Goel Distributors and another Vs. Agrabandhu Footwear Pvt. Ltd.

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Hon. Dilip Gupta, J.

This revision has been filed for setting aside the order dated 10.7.2007 passed by the learned Additional Civil Judge (Senior Division) by which the amendment application filed by the plaintiff-respondent was allowed.

The Original Suit was filed by the respondent herein for recovery of certain amount but as the Suit was not in accordance with the provisions of Order 6 Rule 2(3) C.P.C. since the amount was not indicated in words also, an objection was raised by the defendants that the Suit should be dismissed. The plaintiff thereafter moved an amendment application seeking to incorporate the amount in words also. This amendment application was allowed by the order dated 10.7.2007.

Sri Pramod Kumar Jain, learned Senior counsel appearing for the revisionists, submitted that the Court while allowing the amendment application has not made it clear as to whether the amendment would relate back or not and, therefore, in such circumstances an opportunity should be granted to the revisionists to raise this issue in the suit. In support of his contention he has placed reliance upon the decision of the Supreme Court in Sampath Kumar Vs. Ayyakannu and another AIR 2002 SC 3369 and of the Madras High Court in Southern Ancillaries Pvt. Ltd. Vs. Southern Alloy Foundaries Pvt. Ltd. AIR 2003 Mad. 416.

The Supreme Court in paragraph 10 of the judgment rendered in Sampath Kumar (supra) observed:-

"An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and another v. Mamtha Shenoy, (2001) 8 SCC 561)"

It is clear from the aforesaid decision of the Supreme Court that an amendment once incorporated relates back to the date of the suit but the Court in appropriate cases can pass an order that the amendment shall be deemed to have been brought on the date on which the application seeking the amendment was filed. Thus in the absence of any specific order the amendment would relate back to the date of the suit. In the instant case, the amendment that was sought to be incorporated in the plaint was the addition of amount in words also. The amendment was not for addition of a relief clause where in certain cases the question of limitation would be involved. In the present case the amendment would relate back to the date of the suit.

The Madras High Court in Southern Ancillaries (supra) in paragraph 19 after referring to the aforesaid decision of the Supreme Court in Sampath Kumar (supra) observed as follows:-

"If we peruse the above judgments, it could be noticed that the Supreme Court has not ruled that whenever Court allows an amendment, in all cases, it relates back to the date of filing of the original statement, unless it is positively made clear in the said order itself that such amendment would not relate back. If the order is silent as to whether it would relate back or not, then the affected party can raise the question even at the trial of the suit."

This decision does not help the revisionists as in the present case, it has been held that the amendment would relate back to the date of filing of the suit.

There is, therefore, no merit in this Civil Revision. It is, accordingly, dismissed.

Dt/-23.10.2007

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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