Brij Gopal Pallod and Others Vs. Municipal Council Rep. by G. Vasudeva Re - Court Judgment

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY C.R.P.No.854 o”

31. 10-2012 Brij Gopal Pallod & others Municipal Council rep.

by G.

Vasudeva Reddy, Zaheerabad Municipality, Medak District Counsel for the petitioners: Sri K.

Ramakrishna Reddy, Sr.

Counsel Counsel for respondent : Sri S.

Lakshmi Narayana Reddy, S.C.

: Citations:

1. (2009) 2 SCC 40.2) (2008) 5 SCC 11.3) (2006) 6 SCC 49.4) (2005) 4 SCC 48.5) (2005) 6 SCC 34.JUDGMENT

: Zaheerabad Municipality, the respondent herein filed O.S.No.139 of 2007 in the Court of Principal District Judge, Medak at Sangareddy, against the petitioners herein for the relief of declaration to the effect that it is the absolute owner and possessor of Ac.18.11 guntas of land in Sy.Nos.145 and 146 of Zaheerabad Revenue Village, shown in plaint A and B schedule; for perpetual injunction, and for direction to the petitioners to hand over the vacant possession of the property.

It was pleaded that Ac.225.03 guntas, including the suit land, was earmarked by the Jagir Administration for expansion of the Aabadi of the town and on abolition of the Jagirs, the land vested in the Government and thereby accrued to the respondent.

Reference was also made to the litigation, that ensued as regards the land, as well as to various proceedings.

The petitioners filed the written-statement, opposing the suit.

Their plea is that the land was held by private individuals as patta and was classified as agricultural in nature.

According to them, Abdul Hafeez Khan was the original owner of the land and that it was purchased from his legal heirs by the father of defendants 1 and 2 in the year 1352 fasli, through a registered document.

The trial Court framed issues on the basis of the pleadings in the suit.

One of the issues was "whether the suit lands are vacant lands and if not whether the suit is maintainable without seeking relief of mandatory injunction".

Taking note of this issue, the respondent filed I.A.No.10 of 2012 with a prayer to permit it to amend the plaint to incorporate the relief of mandatory injunction and to add sentences in the plaint, supporting the prayer, which is proposed to be added.

The petitioners filed a counter, opposing the I.A.

The trial Court allowed the I.A., through order dated 10-02-2012.

Hence this revision.

Sri K.

Ramakrishna Reddy, learned Senior Counsel for the petitioners submits that the suit was filed in the year 2007, whereas the I.A.

was filed five years thereafter, seeking amendment of the plaint.

He submits that the application is barred under proviso to Rule 17 of Order XVI C.P.C.

He contends that the affidavit, in lieu of chief-examination of PW-1 was filed in the suit, and thereby the trial is deemed to have commenced.

Alternatively, learned Senior Counsel submits that the respondent did not even plead that in spite of due diligence, the facts which are sought to be added through the proposed amendment were not noticed, when the suit was filed, or that any new development has taken place, warranting such amendment.

He placed reliance upon the judgments of the Supreme Court in VIDYABAI AND OTHERS v.

PADMALATHA AND ANOTHER1, CHANDER KANTA BANSAL v.

RAJINDER SINGH ANAND2 and certain other decisions.

He has also addressed arguments on the purport of the expressions "commencement of trial", and "set down", that are relevant in this context.

Sri S.

Lakshmi Narayana Reddy, learned Standing Counsel for the respondent, on the other hand, submits that the proposed amendment is nothing but expansion of what is already contained in the plaint and the effort was only to add precision.

He contends that the bar contained under the proviso to Rule 17 of Order XXI C.P.C.

would get attracted, if only trial has commenced and that in the instant case, the trial did not commence.

According to him, the right of a party to seek amendment of pleadings cannot be scuttled by reckoning time from the date of filing of the plaint, as long as the trial did not commence.

He cited the judgment of the Supreme Court in BALDEV SINGH AND OTHERS v.

MANOHAR SINGH AND ANOTHER3.

The respondent filed the suit, claiming the reliefs of declaration of title and injunction, as regards fairly vast extent of land, within the limits of the Municipality.

The petitioners, on the other hand, disputed the very classification of the land and based their title on a purchase made about half a century ago.

Several proceedings ensued between the parties before the suit was filed.

The reasons are not before this Court, but the record discloses that though the suit was filed in the year 2007, it took nearly four years for the trial Court to frame the issues.

One of the issues is about the very maintainability of the suit, on the ground that the relief of mandatory injunction was not prayed for.

This is obviously on the basis of the plea of the petitioners that the land is covered by certain structures and unless the relief of mandatory injunction is prayed for, the suit cannot be maintained.

Taking clue from this, the respondent filed I.A., under Rule 17 of Order VI C.P.C.

The main objective was to incorporate the following prayer: "to direct the defendants (petitioners) to remove the structures in the suit schedule property at the costs of the defendants (petitioners)".

Slight correction as to the boundaries was also attempted.

Naturally, the petitioners opposed the application, mostly by pleading the grounds of delay, and partly on merits.

The trial Court took note of the averment in the original plaint, viz., that the petitioners herein colluded with the then Special Officer of the Municipality and constructed a mill in part of the suit land, and the fact that in the original plaint, there is a prayer in the form of direction to the petitioners to hand over the vacant physical possession of the land.

Ultimately, it came to the conclusion that there is no contradiction between the plaint as originally presented and the facts sought to be pleaded, or the prayer, sought to be included through amendment, and allowed the I.A.

The principal contention advanced by the learned Senior Counsel for the petitioners is that the trial of the suit commenced and thereby the prohibition under the proviso to Rule 17 of Order VI C.P.C.

gets attracted.

The proviso, which was added through Act 22/2002, enacted by the Parliament reads, "17.

Amendment of Pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial".

Before the amendment, it was competent for a party to a suit, to seek amendment of the pleadings at any stage, which takes in its fold, not only the one, referable to the pendency of the suit, but also of appeal, second appeal and even the special leave petition in the Supreme Court, subject, of course to certain restrictions.

The Law Commission of India as well as the Parliament felt that indiscriminate amendments of pleadings are resulting in procrastination of the litigation, and an attempt was made to do away the amendment of pleadings, totally.

However, responding to the agitation of the legal fraternity across the Nation, the provision was retained, but certain restrictions were placed in the form of the proviso.

From a perusal of the proviso, it becomes clear that, 1) an application for amendment of pleadings can be entertained by a Court, without raising any objection, up to the stage of commencement of trial; 2) an application seeking amendment of pleadings can be entertained after commencement of trial, if only one of factors, viz., a) that in spite of due diligence, the party seeking amendment could not raise the plea before the commencement of the trial; or b) it is pleaded to the satisfaction of the Court that certain developments have taken place subsequent to the delivery of pleadings.

It is axiomatic that if the application is filed before the commencement of the trial, the party seeking the amendment is not under any obligation or necessity to explain any other fact, except that it must satisfy the trial Court on general principles, such as that the amendment does not bring any claim, barred by law, into the fold of the suit, or that it would not alter the nature of proceedings, etc.

The interpretation placed upon the expression "before the commencement of trial" has not been uniform and similar.

That naturally gave rise to some amount of litigation.

As a matter of fact, the word "trial" is not defined anywhere in the C.P.C.

The trial of a suit, as understood by the practitioners in Civil Courts, is a process under which, the Court records the deposition of witnesses.

The stages earlier to that comprise of presentation of plaint, appearance of parties and framing of issues, whereas those subsequent to it, include advancement of arguments, and pronouncement of judgment.

This is only an attempt to understand, but not to state the process, extensively or with any exactitude.

Before the Parliament amended the C.P.C.

in 2002, there did not exist much difficulty in understanding the stage of commencement of trial.

The moment the first witness to be examined in the case entered the witness box, and the Court started recording the evidence, the trial of the suit commenced.

However, with the introduction of process of filing of affidavits in lieu of chief- examination, the occasion for the Court to apply its mind at the stage of chief- examination would arise only when the documents mentioned in the affidavit are taken on record, after satisfying itself as to admissibility and relevance.

In certain cases, the Court has to bestow its attention as to whether the affidavit contains the gist of pleadings of the concerned witness or whether it has introduced something alien to the case.

Filing of affidavit will not totally relieve the Court of its obligation, to apply its mind at that stage.

Instances are not lacking where the affidavits are filed in such a casual manner that the text of the plaint, just by removing the cause title is filed as an affidavit and portions including those pertaining to the Court fee and jurisdiction are retained.

There is another way of looking at the matter.

If mere filing of affidavit is to be treated as commencement of trial, the affidavit, including the documents mentioned therein should become part of it, without any verification at all, and the Courts should not have any concern over it.

Such a procedure would be detrimental to the very concept of adjudication of suits.

Several inadmissible and irrelevant documents would gain their entry into the record and in many cases, the principle that a document once admitted into evidence cannot be removed from the record or demarked, comes into play.

For all practical purposes, the prohibition contained in Section 35 of the Indian Stamp Act would become redundant.

Not only that.

Undue advantage of the benefit under Section 36 of that Act would also be taken by the parties.

The safest approach seems to be that the trial of the suit can be said to have commenced when the trial Court makes the chief-examination of the first witness in the suit presented in the form of an affidavit, as part of record, after verification of its content, and on an examination of the documents mentioned therein from the point of view of admissibility, and when such witness is available for cross-examination by the opposite party.

In this regard, the expression "set down for recording of evidence" employed by the Supreme Court in KAILASH'S case (4 supra), becomes relevant.

It is apt to extract paragraph 13 of that judgment, which reads as under: "At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence.

All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial".

The actual setting down of the case for recording of evidence, in the present legal regime, takes place when the first witness is ready and available for cross-examination.

The reason is that filing of affidavit in lieu of chief- examination is mostly a ministerial act.

In VIDYABAI'S case (1 supra), the Hon'ble Supreme Court took note of the various judgments rendered by it on the issue, including the one, in KAILASH v.

NANHKU4; the purport of the amendment to C.P.C through Act 22/2002, and the judgments rendered in SALEM ADVOCATE BAR ASSOCITION v.

UNION OF INDIA5.

After referring to them, the Hon'ble Supreme Court summed up its observations in paragraph 19.

It reads, "Para-19: It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties.

Only if such a condition is fulfilled, the amendment is to be allowed.

However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court.

It puts an embargo on exercise of its jurisdiction.

The court's jurisdiction, in a case of this nature is limited.

Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have to jurisdiction at all to allow the amendment of the plaint".

One of the judgments discussed by the Supreme Court in that case was the one, in BALDEV SINGH'S case (3 supra), wherein it was observed, "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 hereinbefore, 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 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings." In relation to this, it was observed in VIDYABAI'S case (1 supra).

"It is not an authority for the proposition that the trial would not be deemed to have commenced on the date of first hearing.

In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence." In this context, it becomes necessary to have an idea about purport of "hearing", under different provisions of C.P.C.

It was only as regards the election petitions, that the Supreme Court held in categorical terms that the trial in those cases can commence even before the issues are settled.

One thing, which emerges common from both the judgments referred to above, is that the stage of filing of documents is anterior, to the one of commencement of trial.

There would not be much of difficulty in understanding the judgments rendered in cases where the applications for amendment have been filed half way through the recording of evidence of the witnesses, or thereafter.

The slight ambiguity, is in relation to the cases where the recording of evidence by the Court, is yet to commence.

In the ordinary parlance, the hearing in a suit takes place after the recording of evidence is concluded.

However, if one looks at the manner in which, the word "hearing" is employed in the C.P.C.

itself, it becomes clear that in civil cases, "hearing" can take place even at a stage, anterior to that of recording of evidence, also.

After the plaint is presented before a trial Court and the suit is numbered, notices are sent to the defendants.

Order IX C.P.C.

deals with the stage at which, the parties are supposed to appear on receiving notice.

The word that is employed in different Rules of Order IX C.P.C.

is "appear".

The Court is required to take note of the appearance or the non-appearance, as the case may be, of the parties.

Beyond that, not even a semblance of hearing takes place at that stage.

The next stage is the one, dealt with by Order X C.P.C.

It is important to notice that the crucial expression used in this provision is "first hearing".

This may not necessarily be after the first appearance of the parties.

In a given case, once all the parties appear before the Court, at the threshold itself, it can take up the matter for "first hearing".

Then comes the stage of "inventory and inspection" (Order XI), ascertainment of admissions in the pleadings (Order XII), and production, impounding and return of documents (Order XIII).

An important stage of suit viz., framing of issues, under Order XIV takes place after these formalities are completed.

Once the issues are framed on the basis of the pleadings, the parties have to identify the witnesses, whom they intended to examine, as regards the issues, which they have to prove or disprove.

Rule 1 of Order XVI mandates that on a date which shall be at least after 15 days, from the date on which issues are settled, the parties shall submit list of witnesses, whom they propose to call, either to give evidence or to produce documents.

It also provides for payment of amounts to cover the expenses for summoning the witnesses.

A reading of Order XVIII C.P.C.

gives an important indication in understanding the stages in the suit.

It reads, 1.

Right to begin:- the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

2.

Statement and production of evidence:- (1) On the day fixed for the bearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct hearings written arguments in support of his case to the Court and such written arguments shall form part of the record.

(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.

(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.

(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit." On a close scrutiny, it becomes clear that the Parliament made a distinction between the arguments on the statements that are to be made while producing the evidence, on the one hand, and arguments that are to be made after conclusion of the evidence, on the other.

The expressions used in Sub-rule (1) of Rule 2, viz., "state his case and produce his evidence" referring to plaintiff and defendant, obviously refers to the stage, before the evidence is recorded.

The fact that the statement of case is not equivalent to final hearing, is evident from the expression "may then address the Court generally" used in sub-rule (2) of Rule 2.

Another indication is that rest of the Rules in Order XVIII deal with the examination of witnesses, re-examination, recalling of witnesses, etc.

The actual hearing of a suit i.e., after the evidence is recorded is dealt with in Rule 1 of Order 20, which says 'the Court, after the case has been "heard" shall pronounce the judgment in open Court'.

However, the Parliament added sub- rules (3A), (3B), (3C) and (3D), providing for submission of written arguments, etc., in Order XVIII, which deals with the stage, prior to commencement of evidence.

These aspects need to be taken into account, to understand the judgments of the Supreme Court, referred to above.

Coming to the facts of the present case, it is not in dispute that the recording of evidence has not commenced in the suit.

It is also relevant to take note of the plea of the petitioners herein in their counter filed by them, opposing the I.A.

In paragraph 6, it was stated "the petitioner is further precluded for filing of amendment of pleadings "after the suit is set down for trial".

As observed earlier, the suit can be said to have been 'set down' for trial, if only the witness enters the witness box and offers himself for cross-examination.

If a witness has simply filed affidavit and did not turn up for cross-examination at all, or if that stage did not reach, it is difficult to infer that the trial of the suit commenced.

For the foregoing reasons, the C.R.P.

is dismissed.

The miscellaneous petition filed in this C.R.P.

shall also stand disposed of.

There shall be no order as to costs.

_______________________ L.

NARASIMHA REDDY, J.

Dt.31-10-2012.