B.P. Katakey, J.
1. The defendant in Title Suit No. 78/2007, pending in the Court of the learned Munsiff, No. 2 at Dibrugarh, on the date fixed for cross-examination of PW-1 filed petition No. 2757/2005 on 16.11.2005 under Order 6, Rule 17 read with Section 151 of the Civil Procedure Code praying for amendment of the written statement by way of addition, by contending that after the engagement of a new Counsel by the defendant he could find that the said paragraphs were missing from his draft written statement and consequently from the written statement filed.
2. The plaintiff/opposite party filed their objection to the said application seeking amendment in the pleadings in the written statement contending that such amendments have been sought for just to nullify their admission made in the written statement and if such amendments are allowed, it will amount to wiping out the admission already made by the defendant in the written statement and further contending that the amendment sought for by way of addition of paragraph 2(a), being matter of law, which can be gone into by the Court even when the plea of limitation was not taken by the defendant in the written statement, no such amendment is required. The plaintiff in the said objection has further pointed out that in fact the defendant filed the additional written statement on 03.11.2005 as allowed by the Court after amendment of the plaint by way of correction of typographical error, and, therefore, at the stage when the suit was fixed for cross-examination of the plaintiffs witnesses such belated prayer for amendment cannot be allowed, more so when it is not the case of the defendant that inspite of his due diligence he could not raise such plea before the commencement of trial.
3. The learned Trial Court upon hearing the learned Counsel for the parties vide order dated 30.07.2007 rejected the application filed by the defendant/petitioner under Order 6, Rule 17 read with Section 151 of the CPC on the ground that if the amendments sought for are allowed, it will negate the plea taken by the defendant/petitioner in his written statement, which contained an admission in favour of the plaintiff and by observing that the defendant/petitioner was not at all diligent and could not give any plausible explanation as to why the amendments sought for were left out at the time of filing the written statement and it is highly improbable that the so called missing links/pleas in the written statement were not brought on record earlier for want of proper instruction from the defendant to his conducting lawyer while preparing the written statement.
4. I have heard Mr. S.P. Roy, the learned Counsel for the petitioner/defendant as well as Mr. K.N. Choudhury, the learned Sr. Counsel appearing on behalf of the opposite party/plaintiff.
5. Mr. Roy, the learned Counsel for the petitioner/defendant has submitted that as the amendments sought for by the defendant would not change the nature and character of the pleading in the written statement and as such amendments are required to decide all the controversies between the parties effectively and completely, the learned Court below ought to have allowed the amendment sought for, more so when the amendments sought for were inadvertently left out in the written statement filed by the defend ant. It has further been contended by Mr. S.R Roy that as the defendant can raise the alternative plea, therefore, even if their is any admission in the written statement, he can take the alternative plea, which is sought to be included in the written statement by way of the proposed amendment. Referring to the decision of the Apex Court in Sangram Singh v. Election Tribunal Kotah and Anr. : [1955]2SCR1 , it has been contended by Mr. Roy that as the Civil Procedure Code lays down the procedure, which is designed to facilitate justice and further its ends and not a penal enactment for punishment and penalties and also not a thing designed to trip people up, too technical a construction of provision that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, provided always that justice is done to both the sides, otherwise the very means designed for the furtherance of justice be used to frustrate it and, therefore, Court should not be too technical in allowing the amendment, if such amendment is required for ends of justice, as in the present case. Mr. Roy, in support of his said contention has also placed reliance on the decision of the Apex Court in Ghanshyam Das and Ors. v. Dominion of India and Ors. : [1984]3SCR229 . Referring to the decision of the Apex Court in Pankaja and Anr. v. Yekkaooa (Dead) by Lrs. and Ors. : AIR2004SC4102 , it has been submitted by Mr. Roy that as the proposed amendment subserves the ultimate cause of justice, the learned Court below ought not to have refused the prayer of the defendant for amendment of the written statement. Referring to the decision of the Apex Court in Baldev Singh and Ors. v. Manohar Singh and Anr. (2006) AIR SCW 3956, it has further been submitted that as the defendant can take the alternative plea, the proposed amendment ought to have been allowed by the learned Court below as the defendant by such amendment sought to raise the alternative plea, Mr. Roy relying on the decision of the Apex Court in Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors. (2007) AIR SCW 2545 has further contended that as the proposed amendment is nothing but adding the proviso condition to the original written statement, the learned Court below erred in law in refusing the prayer for amendment on the ground that it will negate the admission already made in the written statement. Mr. Roy placing reliance on another decision of the Apex Court in Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (D) and Ors. (2007) AIR SCW 4583, has further contended that as the proposed amendment is necessary to adjudicate upon the controversy more satisfactory, refusal by the learned Trial Court to amend the written statement is not proper. Referring to the decision in Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 it has been contended that this court in appropriate case can invoke the jurisdiction under Article 227 of the Constitution of India in challenging the order passed by the learned Trial Court refusing to amend the written statement when such amendment is necessary for adjudication of the dispute between the parties effectively and completely.
6. Mr. Choudhury, the learned Sr. Counsel for the opposite party supporting the impugned order dated 30.07.2007 has submitted that the application under Order 6, Rule 17, filed after commencement of its trial and at the stage when the case was fixed for cross-examination of the plaintiff's witness, does not disclose that inspite of due diligence, the proposed amendment could not be prayed for at earlier point of time and at the same time the statements made in the said application do not disclose any ground for allowing amendment of the written statement. It has further been submitted that the suit was originally instituted in the year 1999 and the written statement was filed on 25.04.2000, the plaintiff filed the evidence on affidavit on 17.06.2005 and the suit was fixed for cross-examination of plaintiff's witness on 22.08.2005 and even if the statements made in the application under Order 6, Rule 17 to the affect that the learned Counsel 'could notice that some pleas/links were missing from the written statement of the defendant and that some subsequent events were not brought on record' is accepted to be correct than also such amendment could have been prayed for before filing the additional written statement by the defendant on 03.11.2005, which was filed after the amendment of typographical mistake in the plaint was allowed by the court. The learned Sr. Counsel has further submitted that though one of the ground taken in the application for amendment is that there were some subsequent events occurred, but the application seeking amendment of the written statement does not disclose any subsequent event after 08.08.2002, and after filing of the additional written statement on 03.11.2005. Mr. Choudhury, relating to the plea of limitation sought to be introduced by way of insertion of paragraph 2 (a) in the written statement, referring to Section 3 of the Limitation Act, 1963, has submitted that even if such plea is not set up as a defence by the defendant, the Court has to consider where the suit of the plaintiff or part of it, is barred by limitation and, therefore, no amendment in that regard is required. Referring to the decision in Surya Dev Rai (supra) it has been submitted by Mr. Choudhury that the supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate Courts within the bounds of their jurisdiction and when such subordinate Court has assumed a jurisdiction, which it does not have or has failed to exercise the jurisdiction, which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and the failure of justice or grave injustice have been occasioned thereby. But in the instant case, the Trial Court has the jurisdiction to decide the application under Order 6 Rule 17 filed by the defendant and has not exercised such jurisdiction in a manner not permitted by law and it has not occasioned the failure of justice or caused grave injustice to the defendant. Mr. Choudhury, therefore, submits that the prayer for amendment of the written statement has rightly been rejected by the learned Trial Court.
7. There is no dispute to the fact that the suit was instituted by the opposite party as plaintiff against the petitioner as defendant for eviction from the suit premises, being Title Suit No. 60/1999 on 29.05.1999, which was subsequently renumbered as Title Suit No. 4/2001. The petitioner/defendant filed the written statement on 25.04.2000 and the plaintiff filed the evidence on affidavit on 17.06.2005. The case was, thereafter, fixed for cross-examination of the plaintiff's witness on 22.08.2005, 13.08.2005 and 19.09.2005. Meanwhile, on 22.08.2005 certain amendment to the plaint was allowed by the learned Trial Court, against which the defendant filed their additional written statement on 03.11.2005, which was also the date fixed for cross-examination of plaintiff's witness. On the next date fixed i.e. on 16.11.2005, for cross-examination of plaintiffs witness, the defendant filed the application under Order 6, Rule 17 of the CPC seeking the amendment of the written statement, against which the plaintiff/opposite party filed the objection on 01.12.2005 and on the date fixed for hearing on the said application for amendment, i.e. on 20.12.2005, the defendant took adjournment. The defendant at that stage filed an application on 10.01.2006 for transfer of the proceeding, which was, however, not pressed. Subsequently the said suit was, transferred from the Court of the learned Munsiff No. 1 to the Court of the learned Munsiff No. 2 on 30.05.2007 and was renumbered as Title Suit No. 78/2007. The said application under Order 6, Rule 17 was ultimately rejected vide order dated 30.07.2007, i.e. after more than 1 year from the date of filing the application for amendment. The suit, therefore, did not proceed further and is at the stage of cross-examination of the plaintiff's witness though the same was instituted on 29.05.1999.
8. In the written statement filed by the petitioner/defendant on 25.04.2000, copy of which is annexed to the present petition, it has been pleaded that due to some anomaly in adjustment of payment of rent it was settled, vide agreement dated 08.09.1988 between the plaintiff and the defendant, wherein the plaintiff admitted that the defendant had fully paid the rent up to July 1988, that the defendant will pay the rent only by account payee cross demand draft and not by cash, for the outstanding rents and future rents, which should always be in the name of the Ahmed Tea Company Pvt. Ltd. payable at Dibrugarh and the defendant, though the said agreement was dishonest and imposed upon him, paid the rents in demand draft to the plaintiff, which has been encashed by the plaintiff but stopped to issue the rental receipts from and against the payment of May, 1994 onwards inspite of repeated requests and demands for the same and though the rent of August, 1994 was duly paid by Draft No. 5/62/017909 dated 28.06.1994 for Rs.300/- on Central Bank of India, Dibrugarh, the plaintiff did not encash and hence the defendant started depositing the rent in Court under the Rent Control Act. The defendant in the written statement has also given the dates as well as Misc. case numbers by which the rents for different months were deposited in Court.
9. By the proposed amendment the defendant now, apart from insertion of a paragraph as paragraph 2(a) relating to the plea of limitation, has sought to change his stand in the written statement regarding the manner of payment of rent by introducing the following statement after sub-para 3 of paragraph 7:
However the plaintiff had instructed the defendant through his son, the said Mr. M.K. Yadav to pay rent to it in any mode by way of ash, cheque, Draft, Pay Order, Banker's Cheque etc. and had accepted the rent without any objection thereto whenever the same was paid to it by way of the aforesaid modes. The plaintiff had further instructed the defendant to pay the rent, if possible, in advance.
The defendant had accordingly paid the following rents in advance:
i) Sept 1986 to Dec. 1986 on 5.11.86
ii) Dec. 1987 to March, 1988 on 15.1.88
iii) Aug. & Sept. 1989 on 22.9.89.
iv) Jan. 1992 to March 1992 on 20.3.92.
v) June 1992 on 22.6.92.
10. The petitioner/defendant also sought to introduce the following statement after sixth sub-para of paragraph 7 so also another sub-para after seventh Sub-para of paragraph 7, which reads as follows:
The rent for the month of August, 1994 was thus paid in advance by way of D/Draft dt. 26.8.1994. Similarly on 1.10.94 when the defendant went to pay the rent for September, 1994, and ask for the receipt for the last 4 (four) months, Shri Nazimuddin Ahmed, the Managing Director of the Plaintiff Co. refused to accept the same and also refused to grant receipts for the last 4 months and demanded enhanced rent to which the defendant could not agree.
The said Nazimuddin Ahmed had similarly refused/been refusing to accept the rent whenever the same was/is offered to him before depositing in the court.
11. The defendant also sought to amend by way of insertion another sub-para in paragraph 9 of the written statement in the following manner:
It is submitted that the plaintiff during pendency of the suit has sold a plot of land measuring 2B, 4K, 0L in total to different purchasers vide Regd. Sale Deed Nos. 1427 to 1437(11 Nos.) against consideration all dated 8.8.2002.
12. Section 3 of the Limitation Act, 1963 provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. The learned Trial Court where the suit is instituted, therefore, is bound to consider whether the claim of the plaintiff or part of it is barred by time or not, even if such plea has not been taken by the defendant in the written statement. That being the position in law, the plea that part of the claim of the plaintiff in respect of arrear rent and compensation is barred by limitation, which is sought to be introduced by way of amendment by inserting paragraph 2(a) in the written statement, need not be introduced, as the Trial Court is bound under the law to consider whether the claim or part of it of the plaintiff is barred by time or not and to pass the decree accordingly.
13. As discussed above, the defendant in the written statement has taken the specific plea about the agreement entered into between the plaintiff and the defendant on 08.09.1988 and also the manner of payment of rent, i.e. by the account payee cross demand draft and not by cash, for the outstanding rents and future rents in the name of the Ahmed Tea Company Pvt. Ltd. payable at Dibrugarh and that the defendant has paid the rent by a bank demand draft to the plaintiff, but the landlord did not issue any rent receipt against the payment of May, 1994 onwards and the rent of August, 1994 was duly paid by the bank draft dated 26.08.1994 on the Central Bank of India, Dibrugarh, which the plaintiff did not encash and, thereafter, started depositing the rent in Court under the provisions of the Rent Control Act, 1972. The defendant by the proposed amendment sought to change his plea in the written statement by introducing a different mode of payment of rent thereby wants to change his stand regarding mode of payment of rent completely. The said proposed amendment cannot be treated as an alternative plea. Therefore, the amendment sought for by the application filed under Order 6, Rule 17 CPC as reflected in paragraphs 5 (B) of the said application cannot be allowed. Relating to the proposed amendment as reflected in paragraph 5(C) of the application under Order 6, Rule 17, the defendant also by the said proposed amendment wants to change the plea taken in the written statement completely, so also by the proposed amendment as reflected in paragraph 5(D) of the said application. Hence the said amendments have rightly been refused by the learned Trial Court, as it will change the stand of the defendant in the written statement completely and as those cannot be treated as alternative pleas.
14. The other amendment, which was sought to be introduced in the written statement by way of amendment as reflected in paragraph 5(E) of the said application, as reproduced above, was because an event stated to have happened subsequent to filing his additional written statement on 03.11.2005, though from the proposed amendment it appears that the defendant want to introduce some statement relating to the execution of the sale deed dated 08.08.2002. The defendant in the application has not stated that it was not within his knowledge about the execution of such sale deed on 08.08.2002. Moreover, the details of the sale deed, which is sought to be introduced in the written statement by way of amendment can be proved in the evidence either by way of cross-examination of the plaintiffs witness or by adducing evidence by the defendant, as the defendant has already in the written statement has pleaded that the plaintiff has transferred certain land. Therefore, the said amendment was also rightly not allowed by the learned Court below.
15. Order 6, Rule 17 empowers the Court to allow amendment of the pleadings at any stage of the proceedings, which is necessary for the purpose of determining the real questions in controversy between the parties. By way of amendment with effect from 01.07.2002 a proviso has been introduced in Order 6, Rule 17 to the effect that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In the instant case, as noticed above, the suit was filed in the year 1999 and is at the stage of cross-examination of plaintiff s witness. The additional written statement after the amendment of the plaint was filed on 03.11.2005 and, thereafter, on 16.11.2005 the application under Order 6, Rule 17 was filed by the defendant seeking amendment of his written statement, which admittedly has been filed after commencement of the trial. The conduct of the defendant goes to show that the defendant is bent upon to delay disposal of the suit, which has been filed for his eviction from the house on the ground of his being defaulter, within the meaning of the Assam Urban Areas Rent Control Act, 1972. The application filed under Order 6, Rule 17 also does not disclose any material to come to a conclusion by the Court that inspite of due diligence, the application seeking amendment could not be filed before commencement of trial by the defendant or the defendant could not have raise the matter before such commencement of trial.
16. In Surya Dev Rai (supra) the Apex Court has held that even if, after the amendment of the Civil Procedure Code with effect from 01.07.2002, a revision petition against an interlocutory order, which does not finally dispose of the suit or other proceedings, is not maintainable, such interlocutory orders are judicially reviewable under the certiorari and supervisory jurisdictions of the High Court under Article 226 and 227 of the Constitution of India respectively, and in an appropriate case the Court can interfere with such order. It has further been held that the supervisory jurisdiction under Article 227 of the Constitution of India is exercised by the High Court to keep the subordinate Courts within the bounds of their jurisdiction and when the subordinate Court has assumed a jurisdiction, which it does not have or has failed to exercise a jurisdiction, which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law, which occasioned failure of justice or caused grave injustice. There is no dispute to the said proposition of law as laid down by the Apex Court. However, in the instant case, for the reasons recorded above, refusal of the prayer for amendment of the written statement in exercise of jurisdiction by the learned Trial Court under Order 6, Rule 17, does not occasion failure of justice or caused grave injustice. The learned Trial Court also in exercising its jurisdiction has not committed any error of law.
17. As observed by the Apex Court in Sangram Singh (supra) the Code of Civil Procedure is designed to facilitate justice and further its ends and not a panel enactment for punishment and penalties and also not a thing designed to trip people up. There is no doubt that too technical a construction of a section that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, provided that justice is done to both the sides, otherwise the very means designed to further the ends of justice be used to frustrate it. In the instant case, as observed above, though the suit was filed in the year 1999 and the written statement was filed in the year 2002, the suit is still at the stage of cross-examination of the plaintiffs witness in the year 2007, i.e.. even after eight years of filing the same, and conduct of the defendant goes to show that he is trying to delay disposal of such proceeding. Their is also no dispute to the proposition of law as laid down by the Apex Court in Ghanshyam Das (supra) that as far as possible, no proceedings in a Court of law should be allowed to be defeated on mere technicalities and substantial justice should not be sacrificed for hypertechnical pleas based on strict adherence to procedural provisions.
18. In Pankaja (supra) the Apex Court has opined that since the jurisdiction to allow or not allow an amendment is discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought and if granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. If has further been observed that there cannot be any straitjacket formula for allowing or disallowing an amendment of pleadings and each case depends on the factual background of that case. The Apex Court in Baldev Singh (supra) has also observed that inconsistent pleas can be raised by the defendant in the written statement although same may not be permissible in case of plaint and, therefore, raising of the inconsistent plea cannot be a ground to refuse amendment. While interpreting the proviso to Order 6, Rule 17 CPC regarding the commencement of trial, the Apex Court in that case has observed that the commencement of trial 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. In Usha Balashaheb Swami (supra), it has been observed by the Apex Court that amendment adding a proviso/condition to the admission made in the original written statement does not amount to withdrawal of admission and such amendment is, therefore, permissible and the Courts are to be more liberal in allowing an amendment of the written statement than that of a plaint as the question of prejudice would be far less in the former than in the) latter case.
19. In Ramchandra Sakharam Mahajan (supra), it has been observed by the Apex Court that when the amendment allowed enables the Court to render a decision in a more satisfactory manner such amendment should not be refused on the ground that there was delay in seeking amendment as, such delay can be compensated by awarding costs. In the instant case, for the reasons recorded above, the amendment sought for in the written statement is either not necessary or cannot be allowed.
20. Delay disposal of a legal proceeding instituted in a Court appears to have the affect of losing confidence of the Court by the parties seeking relief. Even after amendment of the Civil Procedure Code the disposal of the suit or proceeding within a reasonable period of time, it appears, could not be achieved, due of numerous applications filed by the party, who does not want the early disposal of such legal proceeding. If such a course of action is allowed to be taken by such party, the faith of the public on the judicial system would be eroded.
21. In view of the aforesaid discussion, I am of the view that the learned Court below has rightly refused the prayer for amendment of the written statement. The revision petition is accordingly dismissed with the cost of Rs. 2000.