Prabhakar S/O Shamrao Bairam vs Madhukar Mahadeo Bairam And Anr.
2003 Latest Caselaw 83 Bom

JUDGMENT

R.G. Deshpande, J.

1. Rule returnable forthwith. The matter is taken up for hearing and disposal with the consent of the parties.

2. The present respondent No. 1 has filed Special Civil Suit No. 46 of 2001 for a declaration to the effect that the Sale-deed dated 18-11-1992 to be declared as null and void. During the pendency of the suit, the present petitioner/original defendant No. 1, filed an application under Order VI, Rule 5 of the Civil Procedure Code, for better particulars. This application appears to have been filed on August 13, 2001. The application, no doubt, was pending decision before the learned trial Judge. However, in the meantime, no doubt, the Civil Procedure Code has been amended, which has come into effect with effect from 1st July, 2002. Keeping in view the amending provisions, the learned Civil Judge, Senior Division, Chandrapur, decided the Exhibit P-2, i.e. the aforesaid application for better particulars, by his order dated July 22, 2002. The learned trial Judge filed the application by the aforesaid order in view of the amended Civil Procedure Code. It is this order which is under challenge before this Court in this writ petition.

3. The application which was filed by the present petitioner/original defendant was under Order VI, Rule 5 of the Civil Procedure Code. Act No. 22 of 2002, i.e. Civil Procedure Code (Amendment) Act, 2002, and particularly Section 16 thereof deals with repeal and saving clauses. Clause (b) of Sub-section (2) of Section 16, reads thus :

"16. Repeal and savings. -- (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897),--

 (a)     .......................... 
 

 (b)     the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;   
 

4. Clause (b) of Sub-section (2) of Section 16 reproduced above clearly makes it clear the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and Section 7 of this Act, i.e. (Amended Act), shall not apply in respect of any pleadings, filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999; and Section 7 of this Act. A bare reading of this provision makes it clear that since the application in question was already pending for decision before the learned Judge of the trial Court, the said application, in fact, should have been decided by the learned Judge on its own merits, treating as if so far as regards the application was concerned there was no amendment to that provision. In the opinion of this Court, therefore, passing of the order dated July 22, 2002, filing the application, in view of the Amendment to the Civil Procedure Code, is totally wrong and the order needs to be quashed and set aside. In this view of the matter, the impugned order dated July 22, 2002, passed by the learned trial Judge is hereby quashed and set aside and the matter is remitted back to the learned trial Judge, who shall decide the application, Exhibit P-1, on its own merits. Needless it is to state that the parties will be given due opportunities to defend their respective cases.

5. With these directions, the petition stands disposed of. Rule made absolute in the abovesaid terms with no order as to costs.