ORDER
K.K. Lahoti, J.
1. The petitioner has challenged order dated 24-8-2005 passed by Second Civil Judge, Class-II, Katni in Civil Original Suit No. 12-A/2000, by which petitioner's prayer for recalling the plaintiff for cross-examination in consequence of amendment in the pleadings and another application for sending for the records from the office of Municipal Corporation in respect of assessment of Property Tax has been rejected.
2. The case of the petitioner is that a suit for eviction has been filed by the respondent against the petitioner in respect of residential accommodation. After closure of evidence an application for amendment was filed by the petitioner on 18-7-2005 in which the petitioner sought amendment of written statement stating that three civil suits were filed by the plaintiff in respect of his bona fide necessity. Those suits were decided by compromise and the accommodation involved in the aforesaid suit has come into the possession of the plaintiff and there is no bona fide necessity to the plaintiff in respect of suit accommodation. This amendment was allowed by the trial Court.
3. On 18-7-2005, the plaintiff moved an application seeking amendment in the plaint in which para 4A of the plaint was amended by which the plaintiff has explained the aforesaid situation and has stated that the plaintiff is willing to settle all the family members as per his status and even after getting possession of the accommodation involved in the other suits, the bona fide necessity shall not be fulfilled. The plaintiff has not got possession of aforesaid accommodation. This amendment in the plaint was also allowed by the trial Court.
4. Thereafter petitioner moved an application under Order 18, Rule 17, CPC on the ground that in view of the aforesaid amendment, the defendant is willing to further cross-examine the plaintiff and wants to further re-examine defendant in this regard. The said application was opposed by the plaintiff. The trial Court by the impugned order rejected the prayer on the ground that in the case evidence of plaintiff was already closed on 1-4-2005, the defendant was also examined on 13-4-2005. The defendant's another witness Sooraj Kachhwaha has also been examined on 13-8-2005. The petitioner's prayer so far as to prove the public document is concerned, the plaintiff has not raised any objection to read aforesaid document in evidence. On the aforesaid grounds the prayer of petitioner for recalling plaintiff and to further examine defendant has been turned down. The another application filed by the petitioner under Order 16, Rule 1(3) of CPC was for summoning the record of Municipal Corporation on the ground that petitioner moved an application before the Corporation for supply of certified copy of Property Tax Assessment Register, which has not been supplied, so original record be called. The application has been rejected by the trial Court on the ground that no affidavit in support of application was filed. Apart from this, the petitioner has not produced any document in support of the application that when he moved an application for supply of certified copy of the document and whether this was accepted or not. The Court found that in this regard the application is silent and rejected it by the impugned order.
5. learned Counsel for petitioner submitted that :-
(i) When the pleadings were amended the petitioner was entitled to further cross-examine the plaintiff and to re-examine defendant in support of aforesaid pleadings. As the subsequent pleadings have come on record and to prove the contentions raised in the pleading it is necessary to further cross-examine the plaintiff and defendant.
(ii) If such permission is not granted the entire purpose of amending pleading shall frustrate and in absence of any proof or cross-examination of the plaintiff, the contention raised in the pleadings cannot take place of proof:-
(iii) That the petitioner applied for certified copy of the record from the Municipal Corporation, but it was denied on the ground that third person is not entitled for the copies of assessment register. This fact was specifically mentioned in the application under Order 16, Rule 1, CPC. If the required affidavit was not filed, petitioner may be allowed one opportunity to file affidavit or to obtain certified copy from the Municipal Corporation.
6. learned Counsel for respondent vehemently opposed the aforesaid contention and submitted that the entire conduct of petitioner is to delay the hearing of the case. The suit was filed in the year 2000 and after closure of evidence the amendment application was moved. The respondent/plaintiff has clarified the position by amending plaint. In the circumstances it is not necessary to further cross-examine plaintiff or to re-examine defendant in this regard, this will cause delay and harassment to the plaintiff. So far as requisition of the record of the Corporation is concerned, the petitioner has not filed any affidavit in support of his contention nor any documentary proof that he ever applied for the certified copy of document which was rejected by the Corporation. The record of the Corporation is a public record and until and in absence of some cogent evidence in respect of contention of petitioner, the trial Court has rightly rejected the application and no further opportunity be allowed to the petitioner.
7. To appreciate rival contention of the parties, firstly the prayer of the petitioner in respect of recalling plaintiff for further cross-examination and for re-examination of defendant in respect of pleadings may be seen. In this case it is not in dispute that after closure of evidence the petitioner moved an application raising a plea that in 3 suits bearing No. 17-A/2004, 35-A/2004 and 10-A/2004 there was compromise between the plaintiff and tenant concerned and the said accommodation has come into possession of the plaintiff, and the bona fide necessity has come to an end. The plaintiff in reply to the aforesaid pleading has amended plaint by incorporating para 4-A in the plainti, in which it is stated that the defendant is a tenant of one room and Parchhi and other tenants were also having similar accommodation. The plaintiff as per his status shall rearrange the accommodation for residence. After getting possession of accommodation in possession of defendant and other tenants, the bona fide necessity shall be fulfilled. The plaintiff has not got possession of the accommodation from other tenants. The defendant cannot assess the necessity of plaintiff and the said necessity shall be considered by the Court as per the status of plaintiff.
8. From the perusal of aforesaid pleadings, it appears that there was admission in respect of the decree passed in favour of plaintiff. The plaintiff has explained it by incorporating para 4A in the plaint. The contention of plaintiff is that even after receiving vacant possession of the aforesaid accommodations, the plaintiff's need would not be fulfilled and still there is necessity of the accommodation occupied by the defendant. It is apparent that there is controversy in this regard. The plaintiff in the plaint was not pleaded in respect of other pending dispute for the bona fide necessity of his family members. If some decree has been passed, though on the basis of compromise in other suits and the petitioner has raised some contention in this regard, which has been specifically denied by the plaintiff, then the prayer of petitioner appears to be just and proper for further cross-examination of plaintiff and re-examination of defendant in this regard.
9. The purpose of amendment of pleadings is to place material facts before the Court which are necessary, just and proper for deciding the real question in controversy between the parties. If some pleading has been amended after closure of evidence, the party in whose favour such an order has been passed would be entitled for reasonable opportunity to prove the contention raised in the pleading, otherwise the entire purpose of amendment of pleading shall frustrate. Without any proof there is no meaning of amendment of pleading or the pleading though on record, but in absence of proof no finding can be recorded by the Court. Particularly when the contention has been denied/contradicted by the other party, in these circumstances in the interest of justice the Court has to allow an opportunity in this regard to prove amended pleadings. Simultaneously the Court should also see that the aforesaid opportunity is not misutilised by any of the party and in the garb of such opportunity the case is not reopened de novo. In each and every case it is to be seen whether such an opportunity is necessary and to what extent. If the contention can be proved by recalling all the witnesses and/or by further examination of witnesses the Courts are empowered to grant such opportunity. The Courts while granting such an opportunity shall see that the entire case is not reopened and this opportunity shall be limited to the extent of newly amended pleadings. The Apex Court in J. Jermons v. Aliammal : AIR1999SC3041 considering the similar question held (para 37) :-
From the above discussion, it is evident that the requirements of Clause (a) are different from the requirements of Clause (c). For purposes of Clause (c), the following additional facts will be necessary viz. whether the landlord is occupying only a part of the building whether residential or non-residential and whether the tenant is occupying the whole or any portion of the remaining part of the building and the facts relevant to the consider ration with regard to comparative hardship to the landlord and tenant. Such facts are to be brought on record because they are not the subject-matter of consideration in an application filed under Sub-section (3)(a). In a case where the original application for eviction is based, inter alia, on the ground in Clause (a) of Sub-section (3) and an application for amendment of eviction petition is allowed permitting to raise further ground under Clause (c) either by the appellate authority or the revisional authority, the appropriate course will he to remand the case to the Rent Controller for giving opportunity to the opposite party to file further pleadings and adduce such evidence relevant to the issue, as they desire. Inasmuch as the petition filed by the respondents and allowed by the High Court was to raise additional ground in the revision and not to amend the eviction petition, we are of the view that it is not a fit case to remand the matter to the Rent Controller.
The Apex Court in Dondapati Narayana Reddy v. Duggireddy Venkatanarayana Reddy : AIR2001SC3685 considering the scope of Order 6, Rule 17 and Order 18, Rule 17, CPC held (paras 9 to 11) :-
Rules governing pleadings and leading of evidence have been incorporated to advance the interests of justice and to avoid multiplicity of litigation. If the claim of the plaintiff Dondapati Narayana Reddy is based upon the Will dated 20-8-1994 executed by Dondapati Tirumala Ramareddy, the defendant-appellant has a right to seek the amendment of his written statement incorporating the plea sought to be introduced by way of proposed amendment. Such a prayer cannot be denied on hypertechnical grounds. The amendment should generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time. Amendment may also be refused, if such a prayer made separately, is shown to be barred by time. Neither the trial Court nor the High Court has found the existence of any of the circumstances justifying the rejection of the prayer for amendment of the written statement. Whether or not the amendment is allowed the trial Court is otherwise obliged to decide the validity of the disputed Will which is the basis of the suit filed by the plaintiff. We are of the opinion that the Courts below were not justified in rejecting the prayer of the defendant seeking amendment of his written statement.
In view of the fact that the validity of the Will was sought to be challenged by way of amendment, the plaintiff acquired a right to lead evidence to prove its authenticity. Otherwise also when the basis of the suit was the Will dated 20-8-1994, the interests of justice demanded that the plaintiff should have been allowed an opportunity to lead additional evidence to prove its validity. The High Court appears to have adopted a very rigid and technical approach in rejecting the prayer of the plaintiff to lead additional evidence to prove testamentary succession by producing the registered Will dated 20-8-1994 executed by Dondapati Tirumala Ramareddy.
In view of what has been stated herein-above, both the appeals are allowed by setting aside the impugned orders and by allowing the applications filed by the plaintiff and defendant 1. The trial Court shall allow the defendant to amend the written statement and permit the plaintiff to adduce additional evidence to prove testamentary succession by producing the registered Will dated 20-8-1994 as prayed for by him in IA No. 1283 of 2000. Costs made easy.
A single Bench of this Court considering the effect of amendment of pleading and the right to examine and re-examine the witness, in Parasram v. Smt. Gopibai (1985 MPWN Note 94) held thus :-
It is, no doubt, true that the defendants-applicants had been negligent in not incorporating the amendments in the written-statement which were allowed by the trial Court as far back as 27-11-1981 till 22-3-1984 i.e. for a period of two years and four months and the Court could have refused in its discretion to extend time for permitting incorporation of the amendments. But the learned trial Court permitted the defendants to incorporate the amendments. Normally when the amendments have been allowed the defendants should have opportunity to establish by evidence the facts pleaded by way of amendments and for that purpose would be given opportunity not only to examine their own witnesses but also to cross-examine the witnesses of the plaintiffs on the facts introduced by amendment of written-statement. The belated steps taken by the defendants, no doubt, prolongs the litigation but the plaintiffs can be compensated for the same by way of costs and the defendants can also be required to incur the expenses for recalling the witnesses of the plaintiffs for cross-examination on the amended pleadings.
The learned trial Court has considered whether or not the evidence on the amended pleadings would be any avail to the defendants on merits. But whereas the consideration whether an amendment would be relevant for deciding the controversy in suit is to be made at the stage of deciding the amendment application and not later at the stage of calling the witnesses for proving the facts introduced by amendment.
The learned trial Court appears to have rejected the prayer for the defendants for recalling the two witnesses of the plaintiffs on the view that the defendants are not entitled to produce evidence under Order 18, Rule 17-A of the Code as the said provision is not applicable in the facts and circumstances of the present case. All the same the learned trial Court had the discretionary power under Order 18, Rule 17 of the Code for permitting recall of plaintiffs witnesses and it should have, in proper exercise of discretion, allowed the defendants application for recalling the plaintiffs' witnesses so that its order permitting incorporation of the amendments in the written-statement is not rendered nugatory but effectual and meaningful. The learned Court has apparently failed to exercise the discretion judicially. Revision allowed.
10. The purpose of amendment of pleading and leading of evidence is to advance interest of justice and to prevent multiplicity of suits. If the pleadings are amended and the other party has denied the averments of amended pleading, naturally the other party has to substantiate its contention by adducing evidence. If the Court has permitted a party to amend the pleading in respect of controversy, but no opportunity to lead evidence is allowed to the party, the entire purpose to amend the pleading shall be futile. For additional pleadings, looking to the exigency of the case the trial Court has to allow the parties to lead evidence. What should be the extent of this opportunity is to be seen by the Court in the facts of particular case and no hard and fast rule can be laid down in this regard. But when there is controversy in respect of factual position, the trial Court should extend a reasonable opportunity to lead evidence, in absence of which the party who has amended pleading shall be deprived to prove his case as brought on record by him by amending the pleading.
11. In the aforesaid circumstances, the trial Court committed an error in rejecting the application of the petitioner. The petitioner has only sought permission of the Court to further cross-examine the plaintiff and re-examine the witness of defendant, the prayer of petitioner was reasonable and ought to have been allowed by the Court below. In these circumstances, the order so far as it relates to the rejection of prayer of petitioner for aforesaid relief, is not sustainable under law and accordingly it is quashed and the petitioner's application for aforesaid prayer is allowed.
12. Now the second contention may be seen by which petitioner has prayed to the trial Court to send for the record of Municipal corporation in respect of assessment register. The petitioner has not submitted particulars when the application was filed and whether it was allowed or rejected. No order of the authority was produced before the Court in this regard. The record of Municipal Corporation is a public record and usually it will be presumed that there should be no difficulty in getting the certified copy of public record. Apart from this after enactment of the Right to Information Act, 2005, the position has become more liberal. If the petitioner applies for the certified copy of public record and it has been denied there must be some reason and this reason ought to have been placed on record by filing appropriate record in this regard and needless to say that supported by an affidavit of petitioner. But the petitioner has not produced any record nor submitted any details in respect of his filing of application for supply of certified copy of aforesaid public record or about the reasons of aforesaid rejection of prayer. Apart from this no affidavit in support of application was filed by the petitioner.
13. Rule 104 of the M.P. Civil Court Rules, 1961 specifically provides that procedure envisaged under Order 13, Rule 10, CPC, shall be applicable to other public records and an affidavit setting forth the necessity for production of record should State not merely that the record is material to the suit, but must also show that the applicant cannot, without unreasonable delay or expense, obtain a duly authenticated copy or in what way the production of the original is necessary. Rule 105 of M.P. Civil Court Rules, 1961 also provides that subject to any provision of law to contrary, the originals of public and municipal records should not be called for when duly authenticated and certified copies of the same are admissible in evidence and will serve the purpose for which the records are required. For ready reference, it will be necessary to reproduce the Rules 104 & 105, which reads as under :-
104(1). Attention is invited to Rule 10 of Order XIII which states that law as to the production of Court records. The principle laid down in Sub-rule (2) of that rule may well be applied to other public records.
(2) Affidavits under Order XIII, Rule 10(2), setting forth the necessity for production of records should state not merely that the record is material to the suit, but must also show how the record is material and also that the applicant cannot, without unreasonable delay or expense, obtain a duly authenticated copy or in what way the production of the original is necessary.
105. Subject to any provision of the law to contrary, the originals of public and municipal records should not be called for when duly authenticated and certified copies of the same are admissible in evidence and will serve the purpose for which the records are required.
14. In view of aforesaid specific provision under M.P. Civil Courts Rules, 1961, if the Court has rejected the prayer of petitioner for calling the record, no error can be found. However, as the petitioner has been allowed an opportunity to adduce evidence in the matter, the petitioner shall be free to file certified copy of aforesaid record within a period of four weeks from today. If such copies are filed by the petitioner within a period of four weeks from today, the trial Court shall receive the aforesaid copies in evidence. In case petitioner fails to get the certified copy, he will be free to approach the trial Court in accordance with Rule 104 of M.P. Civil Court Rules, 1961. If any such application is filed the trial Court shall be free to reconsider the matter, in accordance with law, without being prejudiced with the rejection of previous application.
15. With the aforesaid, this petition is allowed in part as indicated hereinabove, with no order as to costs.