Full Judgment
1 W.P.No.5981/2012 W.P.No.5981/2012 16.01.2014 Shri Sanjay Sarwate, learned counsel for petitioneRs.Shri Sameer Seth, learned counsel for respondent No.1.
With consent of learned counsel for the parties the petition is heard finally.
This petition, under Article 227 of the Constitution of India at the instance of defendant, is directed against order dated 27.02.2012 passed in civil suit No.23-A/2011 by FiRs.Civil Judge, Class-II, Khandwa; whereby, application preferred by the petitioners-defendants No.1 and 2 under Order 6 Rule 17 read with Order 8 Rule 6-A(1) of the Code of Civil Procedure, 1908 seeking amendment and to put counter claim has been rejected.
Suit at the instance of respondent No.1/plaintiff is for declaration and permanent injunction in respect of property which find mention in Annexure-A appended with suit plaint on the ground that the same has been gifted in favour of plaintiff by her mother-Munna Bai vide Will dated 13.10.1988.
The petitioners-defendants filed the written statement.
Subsequent thereafter before the commencement of trial 2 W.P.No.5981/2012 they filed an application under Order 6 Rule 17 read with Order 8 Rule 6-A(1) of the Code of Civil Procedure, 1908 seeking amendment in the written statement as also laying the counter claim.
Trial Court vide impugned order rejected the application under Order 6 Rule 17 of CPC on the ground that the suit having been fixed for plaintiff's evidence and there being no explanation regarding due diligence.
Whereas, an application under Order 8 Rule 6-A(1) of CPC for counter claim has been rejected on the ground that, if allowed, the same will exceed pecuniary jurisdiction of the trial Court.
Petitioners question the legality of the order on the ground that the trial Court committed jurisdictional error as the trial has not actually commenced and none of the plaintiff's witnesses were examined or cross-examined.
In respect of rejection of counter claim, it is contended by learned counsel for petitioners that it was beyond the jurisdiction of the trial Court to have prejudged the matter.
Petitioners place reliance on the decision by Division Bench of this Court in Krishna Kumar Khandelwal versus Mangal Prasad : AIR2006M.P.227.
Learned counsel appearing for respondent No.1- plaintiff supports the order passed by the trial Court.
3 W.P.No.5981/2012 Apparent it is from the application filed by the petitioners-defendants for amendment in the written statement was to incorporate certain facts as to the gift dated 10.02.1992 executed in favour of the petitioners by his mother-Munna Bai.
In Sushil Kumar Jain versus Manoj Kumar & another : (2009) 14 SCC38it has been held : "13.
At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle.
"15..Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action." 14.
It is equally well settled that in the case of an amendment of a written statement, "the courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed." Thus, there was no legal bar for the trial Court to have allowed the application for amendment in written statement.
4 W.P.No.5981/2012 However, it is observed from the impugned order that rejection of application was on the ground that the same has been filed after commencement of trial.
It is not disputed by the parties that the evidence of plaintiff is yet to begin.
In Baldev Singh versus Manohar Singh : (2006) 6 SCC498it has been held : "Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced.
For this reason, we have examined the records and find that, in fact, the trial has not yet commenced.
It appears from the records that the parties have yet to file their documentary evidence in the Suit.
From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court.
That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments.
As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to 5 W.P.No.5981/2012 the Court to allow an amendment of the written statement at any stage of the proceedings." In view whereof, the trial Court patently erred in exercise of its jurisdiction as would warrant any stamp of approval.
As to the rejection of application under Order 8 Rule 6- A(1) of CPC on the ground that the same will change the pecuniary jurisdiction is also not tenable.
In Krishna Kumar Khandelwal (supra) it has been held : "11..The correct position of law is where the effect of the amendment would entail in ouster of the jurisdiction of the Court, which it originally had, the proper couRs.would be to allow the amendment and then return the amended plaint for presentation before the proper Court." In Lekha Ram Sharma versus Balar Marketing Private Limited : (2008) 17 SCC671it has been held : " ..It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that Court is no ground for refusing that amendment.
We, therefore, do not find any justifiable reason on which the High Court has refused this amendment.." The impugned order when tested on the touchstone of the law pronounced in Krishna Kumar Khandelwal (supra) and Lekha Ram Sharma (supra) cannot be upheld.
6 W.P.No.5981/2012 Consequently, order dated 27.02.2012 is set aside.
Application preferred by the petitioners under Order 6 Rule 17 read with Order 8 Rule 6-A(1) of the Code of Civil Procedure, 1908 is allowed.
Let amendment and counter claim as sought for be put forth on or before the next date fixed before the trial Court.
Consequential amendment and the written statement by the plaintiff may be filed within a period of three weeks therehence.
Petition is allowed to the extend above.
No costs.
(SANJAY YADAV) JUDGE anand