Full Judgment
Oral Order:
Rule, with the consent of the parties made returnable forthwith and heard.
2. The above Writ Petition takes exception to the order dated 23/7/2012 passed by the learned Judge, City Civil Court, Mumbai by which order Chamber Summons No.506 of 2010 filed for amendment of the Written Statement came to be rejected.
3. It is not necessary to burden this order with unnecessary facts. Suffice it to say that the Application for amendment i.e. Chamber Summons No.506 of 2010 for amendment of the Written Statement has been considered by the trial Court on the touchstone of the amendments which have come into force from 1/7/2002 i.e. especially Proviso to Order 6 Rule 17 of the Code of Civil Procedure.
4. The facts of the instant case are that the Suit in question has been filed on 21/2/2002. Undoubtedly the issues have been framed in the said Suit as also the Affidavit of Examination in Chief has been filed on 16/3/2009, and thereafter the instant Application for amendment of the Written Statement was filed. The defining fact in so far as the applicability of the amended provisions of the Code of Civil Procedure and especially Proviso to Order 6 Rule 17 is concerned, is the date of filing of the suit which is in the instant case is 21/2/2002. It has been well settled by catena of judgments of this Court that the amended provisions of the Code of Civil Procedure which have come into force on 1/7/2002 would not be applicable to a suit filed prior to the said date. A useful reference could be made to the judgment of a learned Single Judge of this Court reported in 2011(4) Bom.C.R. 339 in the matter of Sumita Pradipkumar Dixit vs. Pushpadevi G Makharia and ors. Para-16 of the said judgment is material and is reproduced herein in under :-
"16 In my considered view the narrow; interpretation as sought to be placed by the learned Counsel for the respondents on the provisions of section 16 that only the pleadings are saved from the amended provisions of Order 6, Rule 17, would not be in tune with the principles of interpretation and intention of the legislature. As has been discussed here-in-above since what is saved under Clause (b) is "without prejudice to the generality of the provisions of section 6 of General Clauses Act, 1897", what has been stated in Clause (b) will have to be construed as only illustrative and it cannot be construed in a manner which will restrict the width of what has been generally saved under Clause 6 of the General Clauses Act, 1897. As has been held by the Apex Court, rights and the liabilities of the parties would be crystallized on the date of institution of the suit and as such in view of provisions of section 6 of the General Clauses Act and specifically Clause (c) thereof, the pending proceedings would be saved unless the Legislature specifically intends otherwise. In my considered view upon harmonious construction of section 16 of Amendment Act, 2002 with section 6 of the General Clauses Act it cannot be said that the Legislature has intended to give a narrower meaning to save only pleadings and not the proceedings. As held by the Apex Court in the case of Ambalal Sarabhai Enterprises Ltd. (Supra) it will have to be held that pending proceedings on the date on which the Amending Act came into effect are to be continued as if the statute has not been repealed." (Emphasis supplied).
The order impugned discloses that consideration of the said application is principally on the touchstone of the Proviso to Order 6 Rule 17 of the Code of Civil Procedure. Same can be seen from the excerpt from Para 7 which is reproduced herein under :-
"On the contrary, it can be said that the Defendants were negligent in raising the matter before commencement of Trial. Therefore, for the foregoing reasons, I have come to the conclusion that the Defendants have failed to establish that before the commencement of trial they were unaware of certain facts when they filed their written statement."
Since the trial Court has proceeded on a premise, i.e. the applicability of the amended provisions of the Code of Civil Procedure, which in the light of the judgment in the case of Sumita Pradipkumar Dixit (supra) has no application, the impugned order is required to be quashed and set aside. The impugned order is accordingly quashed and set aside, and the matter is relegated back to the trial Court for de-novo consideration of the Chamber Summons No.506 of 2010. The said consideration would be on the basis of the unamended provision of the Code of Civil Procedure. The trial Court would consider the said Chamber Summons on its own merits and in accordance with law and in terms of the observations made herein above. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.