M/S Swastik Trader v. Food Corporation Of India And ORS

[1]

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH Date of decision:03.08.2016 M/s Swastik Trader ... Petitioner Vs.

Food Corporation of India, Bathinda and others ... Respondents

CORAM:

HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. V.K.Jindal, Senior Advocate with Mr. Aditya Yadav, Advocate for the petitioner.

AMIT RAWAL J. (Oral) The petitioner-defendant is aggrieved of the impugned order dated 08.07.2016 (Annexure P-6), whereby, the application of the respondent-plaintiffs/Corporation for filing the amended plaint as per the provisions of Order 6 Rules 14 and 15 of Code of Civil Procedure (hereinafter referred to as "CPC"), has been allowed. Mr. V.K.Jindal, learned Senior Counsel assisted by Mr. Aditya Yadav, Advocate appearing on behalf of the petitioner-defendant submits that as per the amendment caused in sub-clause 3 of Order 4 Rule 1, w.e.f. 1.7.2002, the plaint shall not be deemed to be instituted until and unless the same is in consonance with the provisions of sub-clause 1 and 2 of Order 4, Rule 1. The judgments relied upon by the trial Court are prior to the amendment and therefore, ought not to have been looked into. The aforementioned impugned order tantamounts to condoning the delay as the

[2] defect is indulging into accrual of right which cannot be taken away by the observations as law of limitation would not come in the way. He further submits that the aforementioned suit was filed in the year 1987 and the ex parte judgment and decree was passed which was set aside and the order seeking setting aside of the ex parte judgment and decree has attained finality upto this Court. He also submits that the suit is now at the stage of filing of written statement. In view of the observations in the order under challenge, taking of the objections in the written statement would be only futile exercise.

I have heard learned counsel for the petitioner-defendant and appraised the paper book.

There is no dispute with regard to the provisions of Order 4 Rule 1 sub-rule 3 CPC. This Court cannot be oblivious of the provisions under Order 29 Rule 1 CPC which have been point of debate and pondered upon by the Hon'ble Supreme Court in United Bank of India vs. Naresh Kumar and others 1997 AIR (SC) 3. Of course that judgment has been rendered when there is no amendment in the CPC. The objection qua limitation taken in the impugned order, in my view, cannot be taken away, for, as per the provisions of Section 3 of Limitation Act, the objection qua limitation can always be taken at any state. The observation in the impugned order with regard to the aspect of limitation, in my view, is kept in abeyance and shall be considered by the Court below at the final stage.

[3] With the aforementioned observations, the impugned order allowing the application is upheld. Accordingly, the revision petition stands dismissed.

(AMIT RAWAL) JUDGE August 03, 2016 savita Wheather speaking/reasoned Yes/No Whether Reportable Yes/No