MOOT MEMORIAL, CIVIL PROCEDURE CODE- II

SAVEETHA SCHOOL OF LAW URN:1265

SIMATS

MAY 2018

MOOT MEMORIAL
CODE OF CIVIL PROCEDURE – II

BEFORE
THE HONOURABLE SUPREME COURT OF YANALAM

NATIONAL FISHERMEN FORUM.....................................................................Petitioner

Vs
UNION OF YANALAM.......................................................................................Respondent

COUNSEL APPEARING ON BEHALF OF THE PETITIONER:

KEERTHANA S.

MEMORIAL ON BEHALF OF PETITIONER

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TABLE OF CONTENTS

INDEX OF ABBREVIATIONS...........................................................................................
INDEX OF AUTHORITIES.................................................................................................04

STATEMENT OF JURISDICTION....................................................................................06
STATEMENT OF FACTS....................................................................................................07
STATEMENT OF ISSUES..................................................................................................10
SUMMARY OF ARGUMENTS...........................................................................................11
ARGUMENTS ADVANCED:

I. WHETHER THE AMENDEMENT OF THE PLANT IS MAINTAINABLE

OR NOT?
II. WHTHER THE REVIVION PETITION IS ADMISIBLE?
PRAYER.................................................................................................................….............1

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LIST OF ABBREVIATIONS

& And

AIR

CPC

Hon’ble Honourable

O. Order

R. Rule

Vs Versus

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Vol. Volume

www World Wide Web

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INDEX OF AUTHORITIES

CASES REFERRED:

● Ganga Bai Vs Vijay Kumar.

● Kurapati Venkata Vs Thondepu Ramaswami & Co.
● Jai Jai Ram Manohar Lal Vs National Building Material Supply.
● Pirgonda Patil Vs Kalgonda Patil.
● Banta Singh Vs Harbhajan Kaur.
● Ganesh Trading Co. Vs Moji Ram.
● Raj Kumar Vs Raj Kumar Pasupathinath.
● Dalip Kaur Vs Major Singh.
● J.Samuel Vs Gattu Mahesh.
● Pahali Raut Vs Khulana Bewa.
● Bachhraj Factories(P) Ltd Vs Union of India.
● Ram Sarup Vs Shikhar Chand.
● Shankar Ramchandra Abhyankar Vs Krishnaji Dattatreya Bapat.
● Hari Shankar Vs Rayo Girdhari Lal.
● Manik Chandra Vs Debdas Nandy.
● Sri Raja Lakshmi Dyeing Works Vs Rangaswamy Chettiar.
● Bijendra Nath Vs Mayank Srivastava
● Edevain Vs Cohen.
● Steward Vs North Metropolitan Tramways Co.
● Weldon Vs Neal.
● Tildesley Vs Harper.

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STATEMENT OF JURISDICTION

The present revision petition is filed under section 115 of cpc, 1908 challenging the Order

and Decree dated 25-9-1998 passed by The Learned Judge of High Court of Chennai.

The present memorandum sets forth the facts, contentions and and arguments.

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STATEMENT OF FACTS

The plaintiff moved an application under Order 6, Rule 17 of the Code of Civil Procedure for
amendment of the plaint. The application filed by the plaintiff was allowed by the order dated
17-3-1998 subject to payment of costs to the tune of Rs. 150/- payable to the defendant. By
the same order, it was directed that the amended plaint should be filed within a period of 14
days. The Court, however, adjourned the case to 2-4-1998. The amended plaint was not filed
within the period of 14 days allowed by the order dated 17-3-1998. The amended plaint was
filed on 2-4-1998 which was the date fixed for hearing by the learned Civil Judge (J.D.) in
his order. On 2-4-1998 when the amended plaint was filed, no objection was raised by the
defendant against the filing of the amended plaint as observed by the learned Civil Judge
(J.D.) in his order. About 17 days after the filing of the amended plaint, the petitioner-
defendant filed an application under Order 6, Rule 18 of the Code of Civil Procedure praying
that the plaintiff should not be permitted to amend the plaint as the amended plaint had not
been filed within a period of 14 days fixed by the order dated 17-3-1998. The learned Civil
Judge (J.D.) rejected the application filed by the petitioner under Order 6, Rule 18 of the
Code of Civil Procedure on two grounds. The first was that no objection was raised by the
defendant on 2-4-1998 when the amended plaint was filed. The second ground was that the
Court itself had fixed on 2-4-1998 for filing of the amended plaint. Feeling aggrieved by the
order dated 25-9-1998, the defendant-petitioner has approached this Court under Section 115
of the Code of Civil Procedure

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ISSUES RAISED

The following questions are presented for adjudication in the instant matter:

ISSUE 1 :
WHETHER THE AMENDEMENT OF THE PLANT IS MAINTAINABLE OR NOT?

ISSUE 2:
WHTHER THE REVIVION PETITION IS ADMISIBLE?

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ARGUMENTS ADVANCED

ISSUE 1:
WHETHER THE AMENDEMENT OF THE PLANT IS MAINTAINABLE OR NOT?
It is humbly submitted before this Hon’ble court to decide on the leave of amendment of the
plaint under Order.6, Rule 17 of Code of Civil Procedure(CPC), 1908 is maintainable.

ISSUE 2:
WHTHER THE REVIVION PETITION IS ADMISIBLE?

This current petition is submitted before this Hon’ble court for Revision under Section 115 of
CPC, 1908 on the Order passed by the learned Civil Judge dated on 25-9-1998.

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ARGUMENTS ADVANCED

I. WHETHER THE AMENDEMENT OF THE PLANT IS MAINTAINABLE

OR NOT?
The code of Civil Procedure, 1908 laid down the provisions for amendment of a pleading
in a suit. And as per the proviso Rule 17 od Order 6, Amendment of pleading, it says as
follows:
“The court may at any stage of the proceedings allow either party to alter or amend his
pleading in such manner and on such terms as may be just , and all such amendments
shall be made asmay be necessary for the purpose of determining the real question in
controversy between the parties”
which allows the amendment to be made at any stage of the proceedings of a suit when
the court finds out in spite of due diligence the amendment is applied for by the party. In
this case, the plaintiff should not be permitted to amend the plaint as the amended plaint
had not been filed within a period of 14 days fixed by the order dated 17-3-1998.
when the trial Court had granted 14 days' time to the plaintiff to file the amended plaint, it
was necessary for the plaintiff to have filed the amended plaint within the period of 14
days notwithstanding that the date of hearing fixed by the Court was 2-4-1998 and since
that has not been done, the provisions of Order 6, Rule 18 of the Code of Civil Procedure
are applicable and the plaintiffs application for amendment of the plaint deserves to be
rejected for non-compliance of the order dated 17-3-1998.
It is further submitted that when the trial Court had itself granted 14 days' time to the
plaintiff to amend the plaint, the view taken by the learned Civil Judge (J.D.) that 2-4-
1998 was fixed for filing of amended plaint is not correct. It is also submitted by him that
the plaintiff did not file any application under Section 148 or Section 151 of the Code of
Civil Procedure to extend the time granted for filing of amended plaint and, therefore, the
learned Civil Judge (J.D.) could not have extended the time for filing of the amended
plaint to 2-4-1998.

In support of these contentions, on Bool Chand v. Ayodhya Lal, 1986 Raj LW 470 : (AIR
1987 Raj 76). the decision given by the learned single Judge At page 473 of the Law Weekly,
the learned single Judge has observed (at page 39 of AIR) :--

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"In my opinion, the Acts and Rules of procedure regulating their conduct are intended for
broad purpose of facilitating justice and not for impending it. If there is any technical defect,
it should be rectified by the Court under Section 448 or 151 of the Code of Civil Procedure.
Section 148, CPC empowers the Court to enlarge the period even if the period originally
fixed might have expired. I feel that omission and lapse arising out of non-compliance of the
Court's order was not of such a serious gravity so as to close the door of the Court for the
respondents by dismissing the suit- It is a fit case for exercising the discretion in favour of the
plaintiff-respondent. Even if the trial Court had no authority to extend the time, this Court,
undoubtedly, has the power to grant an extension of time and, I extend the time and, thus
remove the defect which was there."

And as per the Rule 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 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.”

It is evident that the court has its own discretionary power to allow or to reject the
application of the amendment under O.6 R. 17. In the case of Ganga Bai Vs Vijay
Kumar1, the apex court said that the power of court in granting amendment is wide and it
should be by judicial considerations, and greater ought to be the care and circumstances
on the part of the court.

The leave of amendment will be normally refused in some circumstances such as, when it is
not necessary for the purpose of determining the real question in controversy to the suit
between the parties, or when it is totally irrelevant to the fundamental character of the suit, or
when the proposed amendment shall infringe the legal rights of the other party, or if the
amendment is not made in good faith.

And as per the decisions made in Kurapati Venkata Vs Thondepu Ramaswami & Co.2, the
real test for the “controversy” was formulated as a basic test which the court has to decide for
the amendment to be made or not. And if the amendment is not necessary or is merely
technical or useless or without any substance that the amendment can be refused3.

1
AIR 1974 SC 1126.
2
AIR 1964 SC 818
3
Jai Jai Ram Manohar Lal Vs National Building Material Supply, (1969) 1 SCC 869.
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According to the decision made in Edevain Vs Cohen4, the application was rejected as it had
no necessary real questions in controversy to the suit and said that it has no bonafide
intentions in the proposed amendment application. And in the case of Steward Vs North
Metropolitan Tramways Co.5

Similarly, in the case of Pirgonda Patil Vs Kalgonda Patil6 it has been held that the leave for
amendment ha sto be refused if it would infringe the legal right of the other party to the suit 7.
And the same was also mheld in a English case of Weldon Vs Neal8.
In Banta Singh Vs Harbhajan Kaur9, it eas enumerated that the leave of amendment would
be refused where the application was not made in good faith.and was not being bona fide10.
As per the basic principles of theamendment as to pleadings, any amendment barred by time
should not be allowed and such amendment should not account tp or results in defeating a
legal right to the opposite party for lapse of time.11 And the party applying for any
amendment should clear ythe test of ‘ due diligence’ to amend the pleading12.
And as per the provision under rule 18, the amendment shall be made refused for not
compling with the procedures prescribed under the code for such purposes. In Pahali Raut Vs
Khulana Bewa13 & in Bachhraj Factories(P) Ltd Vs Union of India14held the amendment
needs to be done within 14 days from the order dated and if not it should be extended only on
the leave of the court.

4
(1889) LR 43 Ch D 187(CA).
5
(1886) LR 16 QBD 178 (CA).
6
AIR1957 SC 363.
7
Ganesh Trading Co. Vs Moji Ram, AIR 1978 SC 484.
8
(1887) LR 19 QB 394 (CA).
9
AIR 1974 Punj 274, see also, Tildesley Vs Harper, (1878) LR 10 Ch D 393.
10
Raj Kumar Vs Raj Kumar Pasupathinath, AIR 1970 SC 42.
11
Dalip Kaur Vs Major Singh, AIR 1996 P&H 107.
12
J.Samuel Vs Gattu Mahesh, (2012) 2 SCC 300(306).
13
AIR 1985 Ori 165.
14
AIR 1993 Bom 175.
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II. WHETHER THE REVISION PETITION IS ADMISIBLE?

“ Revision” means the “action of revising, especially critical or careful examination or

perusal with a view to correcting or improving”15. The provision for revision has been
provided under Section 115 of CPC, 1908., as

The revisional jurisdiction of the High Court is a part of Appellate jurisdiction of such High
court16. In Bijendra Nath Vs Mayank Srivastava17, the apex court held that the Doctrine of
estoppels does precludes the party from challenging an order of amendment applied where
the party accepted the costs as a condition precedent to the amendment.
And any order granting or refusing the petition can be said to be a “case decided” as per
section 115 of the code and hence it is revisable. And as per the essential distinction between
the two terms appeals and revision. A right of appeal carries with the right of rehearing on
law as well as on fact, unless the statute conferring the right of appeal is limited for rehearing
in one way or the other. This power to hear a revision is general given to a superior court so
that it may satisfy itself that the case has been already decided according to law 18 and this is
also confirmed in the cases Amarjit Kaur Vs Pritam Singh19.
The confirming if the revision all jurisdiction is to keep the subordinate courts within the
ambit of their authorities and to make then accordingly with procedures prescribed by law 20.
And the power to review the evidence subject to the statutory limitations21. And as per the
discussion made in the case of Hari Shankar case, majority held that the power of the High
Court is not so limited and it can enabled to call for the record of a case and decision Therein
made according to law and pass orders in relation to the case if the Court thinks fit.

15
Ram Sarup Vs Shikhar Chand, AIR 1961 All 221.
16
Shankar Ramchandra Abhyankar Vs Krishnaji Dattatreya Bapat, (1969) 2 SCC 74.
17
AIR 1994 SC 2562.
18
Hari Shankar Vs Rayo Girdhari Lal, AIR 1963 SC 698.,
Manik Chandra Vs Debdas Nandy, AIR 1986 SC 446.
19
AIR 1974 SC 2068.
20
Sri Raja Lakshmi Dyeing Works Vs Rangaswamy Chettiar, AIR 1980 SC 1253.
21
Dayawati Vs Inderjit, AIR 1966 SC 1423.
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PRAYER

Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the.
humbly submit that the Hon’ble High Court of be pleased to adjudge and declare that:

THE AMENDEMENT OF THE PLANT IS MAINTAINABLE

&
AND TO DECLARE THE REVISION PETITION IS NOT ADMISSIBLE.

And/Or

pass any other relief, that this Hon’ble court may deem fit and proper in the interest of
justice, equity and good conscience. For this act of kindness, the Petitioner shall duty bound
forever pray.

All of which is most humbly prayed

Counsel for the Respondent

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