Chhabubai Haribhau Badakh Vs. Shri S.H. Khatod and Sons Through Its General Power of Attorney Holder Shri Sohanlal Motilal Malpani and Shri S.B. Somani - Court Judgment

SooperKanoon Citationsooperkanoon.com/354434
SubjectCivil
CourtMumbai High Court
Decided OnMay-04-2009
Case NumberWrit Petition No. 1761 of 2009
JudgeB.R. Gavai, J.
Reported in2009(5)BomCR311; 2009(6)MhLj760
ActsCode of Civil Procedure (CPC) - Order 6, Rule 17; Code of Civil Procedure (CPC) (Amendment) Act, 2002
AppellantChhabubai Haribhau Badakh
RespondentShri S.H. Khatod and Sons Through Its General Power of Attorney Holder Shri Sohanlal Motilal Malpani
Appellant AdvocateS.T. Shelke, Adv. in Writ Petition Nos. 1761 and 1765 of 2009
Respondent AdvocateM.N. Navandar, Adv. for respondent No. 1 in Writ Petition Nos. 1761 and 1765 of 2009
DispositionPetition allowed
Excerpt:
- - 11. it could thus clearly be seen that in all the aforesaid cases relied upon by the learned counsel for the respondents, the suits were filed prior to the amendment of c. however, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial. 16. it could thus clearly be seen that in the present case, the amendment which is sought to be made is after a period of 3 years from the filing of the written statement and that too after evidence is led by the parties and the suit is at the fag end of trial. the learned trial court had no jurisdiction to entertain the application unless it was satisfied that the matter sought to be brought on record could not be brought on record prior to the commencement of trial in spite of exercise of due diligence.b.r. gavai, j.1. rule. rule made returnable forthwith. heard by consent.the petitioners in this group of petitions have filed regular civil suits against the respondents for declaration that the petitioners/planitiffs have become owner of the suit land described in the plaint, by adverse possession and for a further direction to the respondent authorities to effect entries in the record of rights. on being noticed, the respondents appeared in the respective suits and filed written statement verified by one nandkishore parik. the claim of the plaintiffs/petitioners was resisted by the respondent no. 1 in the said written statement.2. one of the plaintiffs in the identical suit filed an application that the written statement filed by the said shri parik cannot be treated as a written statement and prayed for 'no w.s. order.subsequently, an application came to be filed by said shri parik for amendment which has been filed on 22/1/2009, for incorporating an averment that the said written statement has been filed by the general power of attorney holder on behalf of the defendants. the said application was allowed. hence, the present petitions.3. shri shelke, learned counsel appearing on behalf of the petitioners submits that the amendment has been allowed at the fag end of the trial. he submits that the amendment is allowed totally ignoring the provisions of order vi rule 17 of c.p.c. and as such, the impugned orders are not sustainable in law. shri shelke, relies on the judgment of the apex court in the matter of 'ajendraprasadji n. pande and anr. v. swami keshavprakeshdasji n. and ors.' reported in : air2007sc806 and 'vidyabai and ors. v. padmalatha and anr.' : air2009sc1433 .4. shri navandar, learned counsel appearing for the respondents on the contrary submits that the courts should take a liberal view in grant of amendment. he submits that, by the amendment which is allowed, the respondents/defendants only wanted to incorporate a sentence that the written statement has been filed by the general power of attorney holder on behalf of the defendants. he relies on the judgment of the apex court in the case of 'puran ram v. bhaguram and anr.' reported in 2008 (3) all m.r. 843, 'usha devi v. rijwan ahmad and ors.' reported in : air2008sc1147 ; 'andhra bank v. abn amro bank n.v. and ors.' reported in : air2007sc2511 ; 'usha balasaheb swami and ors. v. kiran appaso swami and others' reported in : air2007sc1663 ; 'baldev singh and ors. v. manohar singh and anr.' : air2006sc2832 ; 'united bank of india v. naresh kumar and ors.' : (1996)6scc660 ; 'uday shankar triyar v. ram kaleshwar prasad singh and anr.' : air2006sc269 ; 'chander kanta bansal v. rajinder singh anand' : air2008sc2234 ; 'sajjan kumar v. ram kishan' (2005) scc 89 and 'rajkumar gurjwara (dead) through lrs v. s.k. sarwagi and company pvt. ltd. and anr.' reported in (2008) 14 scc 364. he also relies on the judgment of the learned single judge of this court in the matter of 'bharat petroleum corporation ltd. v. precious finance investment pvt. ltd.' reported in 2007(1) mh.l.j. 331.5. from the perusal of the record, it could be seen that the written statement was filed by the said shri parik on 28th april, 2006. therafter, the issues were framed, evidence was led on behalf of the parties and at the stage of fag end of the trial, the aforesaid application for amendment of the written statement came to be filed after a period of almost 3 years. no doubt, that the learned counsel for the respondents is right in contending that the courts are required to take liberal view in grant of amendment. however, by way of amendment to the code of civil procedure effected on 1st july, 2002, a proviso to order vi rule 17 has been introduced. the said proviso requires that if the amendment is sought to be brought on record after commencement of the trial, a party is required to satisfy the condition that the matter which is sought to be brought on record by way of an amendment could not be brought on record prior to commencement of the trial inspite of exercise of due diligence. it is thus clear that if the amendment is sought to be carried out in a suit after the amendment to cpc i.e. 1st july, 2002, it is necessary for a party to satisfy the aforesaid condition.6. the apex court in the matter of 'ajendraprasad' (cited supra) has observed thus:it is submitted that the date of settlement of issues is the date of commencement of trial. [kailash v. nankhu and ors.] 2005 air scw 2346. either treating the date of settlement of issues as date of commencement of trial, the matter will fall under proviso to order 6 rule 17 c.p.c. the defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. we have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant nos. 1 and 2 (appellants).the apex court in the matter of 'vidyabai' (cited supra) has observed as under:by reason of the civil procedure code (amendment) act, 2002 (act 22 of 2002), parliament inter alia inserted a proviso to order 6 rule 17 of the code, which reads thus: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.it is thus clear that if the amendment is sought after the commencement of trial, unless the court comes to the conclusion that in spite of exercise of due diligence, the party could not have raised the matter before the commencement of trial, the amendment cannot be allowed. in the present case, leave aside any averment regarding due diligence, there is not even a whisper in the written statement about the same. the only statement is that while filing the written statement the fact regarding said mr. parik being general power of attorney holder could not be mentioned due to inadvertence. in that view of the matter, i am of the considered view that the learned trial court had no jurisdiction to entertain the amendment as there is nothing on record to show that the matter which was sought to be brought on record could not have been brought on record before the commencement of trial in spite of exercise of due diligence by the respondents/defendants.7. in so far as the reliance placed on the judgment of the apex court in the case of 'puran ram' (supra) is concerned, it can be seen that the suit in the said case was filed in the year 1997 and as such, it is not governed by the amended provisions of the c.p.c.8. in so far as the judgment of the apex court in the matter of 'ahdhra bank' (supra) is concerned, the said suit is also filed much prior to the amendment being made to the c.p.c. and as such, the said judgment would not be of any assistance to the case of the respondents.9. the same is the case with the judgment in the case of 'united bank of india' (supra). the suit in the case was filed in the year 1984.10. in the case of uday shankar triyar (supra) the suit was filed in the year 1989. in the case of chander kanta bansal (supra) the suit was filed in the year 1986. in the case of sajjan kumar (supra) though from the judgment it is not clear as to in which year the suit was filed, it can be seen from the judgment that the order of the trial court was 29th april, 2002. it is thus clear that the said suit is also filed prior to the amendment to the cpc.11. it could thus clearly be seen that in all the aforesaid cases relied upon by the learned counsel for the respondents, the suits were filed prior to the amendment of c.p.c. as such, the said judgments would not be of any assistance to the respondents.12. in so far as the judgment in the matter of 'usha devi v. rijwan ahmed' (supra) is concerned, in the facts of the said case it was found by the apex court that the evidence had not begun and as such, it was found that since the application was prior to commencement of trial, it was not necessary to satisfy the condition stipulated in proviso to order vi rule 17.13. in so far as judgment in the case of 'usha balasaheb swami and ors.' (supra) is concerned, the apex court itself has observed thus:however, proviso to order vi rule 17 of the code would not be applicable in the present case as the trial of the suit has not yet commenced.14. in the case of 'baldevsingh' (supra) also the parties were yet to file documents and as such, the apex court took a view that the trial was yet to commence and, therefore, the proviso to order vi rule 17 would not be applicable.15. in so far as the judgment in the case of 'rajkumar gurawara (dead) through lrs' (supra), the said judgment, instead of supporting the case of the respondents, in effect, supports the case of the present petitioners. the apex court in the said case has observed thus:the first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. however, this rule is subject to proviso appended therein. the said rule with proviso again substituted by act 22 of 2002 with effect from 17/2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. however, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.to put it clear, order 6 rule 17 cpc confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. as rightly pointed out by the high court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. in the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.16. it could thus clearly be seen that in the present case, the amendment which is sought to be made is after a period of 3 years from the filing of the written statement and that too after evidence is led by the parties and the suit is at the fag end of trial. in this factual background, i am of the considered view that the amendment could not have been allowed. the learned trial court had no jurisdiction to entertain the application unless it was satisfied that the matter sought to be brought on record could not be brought on record prior to the commencement of trial in spite of exercise of due diligence. in that view of the matter, writ petitions deserve to be allowed.17. writ petitions are allowed. rule is made absolute in terms of prayer clause (b). there shall be no orders as to costs.
Judgment:

B.R. Gavai, J.

1. Rule. Rule made returnable forthwith. Heard by consent.

The petitioners in this group of petitions have filed Regular Civil Suits against the respondents for declaration that the petitioners/planitiffs have become owner of the suit land described in the plaint, by adverse possession and for a further direction to the respondent authorities to effect entries in the record of rights. On being noticed, the respondents appeared in the respective suits and filed written statement verified by one Nandkishore Parik. The claim of the plaintiffs/petitioners was resisted by the respondent No. 1 in the said written statement.

2. One of the plaintiffs in the identical suit filed an application that the written statement filed by the said Shri Parik cannot be treated as a written statement and prayed for 'No W.S. Order.

Subsequently, an application came to be filed by said Shri Parik for amendment which has been filed on 22/1/2009, for incorporating an averment that the said written statement has been filed by the General Power of Attorney Holder on behalf of the defendants. The said application was allowed. Hence, the present petitions.

3. Shri Shelke, learned Counsel appearing on behalf of the petitioners submits that the amendment has been allowed at the fag end of the trial. He submits that the amendment is allowed totally ignoring the provisions of Order VI Rule 17 of C.P.C. and as such, the impugned orders are not sustainable in law. Shri Shelke, relies on the judgment of the Apex Court in the matter of 'Ajendraprasadji N. Pande and Anr. v. Swami Keshavprakeshdasji N. and Ors.' reported in : AIR2007SC806 and 'Vidyabai and Ors. v. Padmalatha and Anr.' : AIR2009SC1433 .

4. Shri Navandar, learned Counsel appearing for the respondents on the contrary submits that the courts should take a liberal view in grant of amendment. He submits that, by the amendment which is allowed, the respondents/defendants only wanted to incorporate a sentence that the written statement has been filed by the General Power of Attorney Holder on behalf of the defendants. He relies on the judgment of the Apex Court in the case of 'Puran Ram v. Bhaguram and Anr.' reported in 2008 (3) All M.R. 843, 'Usha Devi v. Rijwan Ahmad and Ors.' reported in : AIR2008SC1147 ; 'Andhra Bank v. ABN Amro Bank N.V. and Ors.' reported in : AIR2007SC2511 ; 'Usha Balasaheb Swami and Ors. v. Kiran Appaso Swami and others' reported in : AIR2007SC1663 ; 'Baldev Singh and Ors. v. Manohar Singh and Anr.' : AIR2006SC2832 ; 'United Bank of India v. Naresh Kumar and Ors.' : (1996)6SCC660 ; 'Uday Shankar Triyar v. Ram kaleshwar Prasad Singh and Anr.' : AIR2006SC269 ; 'Chander Kanta Bansal v. Rajinder Singh Anand' : AIR2008SC2234 ; 'Sajjan Kumar v. Ram Kishan' (2005) SCC 89 and 'Rajkumar Gurjwara (Dead) through LRs v. S.K. Sarwagi and Company Pvt. Ltd. and Anr.' reported in (2008) 14 SCC 364. He also relies on the judgment of the learned single Judge of this Court in the matter of 'Bharat Petroleum Corporation Ltd. v. Precious Finance Investment Pvt. Ltd.' reported in 2007(1) Mh.L.J. 331.

5. From the perusal of the record, it could be seen that the written statement was filed by the said Shri Parik on 28th April, 2006. Therafter, the issues were framed, evidence was led on behalf of the parties and at the stage of fag end of the trial, the aforesaid application for amendment of the written statement came to be filed after a period of almost 3 years. No doubt, that the learned Counsel for the respondents is right in contending that the courts are required to take liberal view in grant of amendment. However, by way of amendment to the Code of Civil Procedure effected on 1st July, 2002, a proviso to Order VI Rule 17 has been introduced. The said proviso requires that if the amendment is sought to be brought on record after commencement of the trial, a party is required to satisfy the condition that the matter which is sought to be brought on record by way of an amendment could not be brought on record prior to commencement of the trial inspite of exercise of due diligence. It is thus clear that if the amendment is sought to be carried out in a suit after the amendment to CPC i.e. 1st July, 2002, it is necessary for a party to satisfy the aforesaid condition.

6. The Apex Court in the matter of 'Ajendraprasad' (cited supra) has observed thus:

It is submitted that the date of settlement of issues is the date of commencement of trial. [Kailash v. Nankhu and Ors.] 2005 AIR SCW 2346. Either treating the date of settlement of issues as date of commencement of trial, the matter will fall under proviso to Order 6 Rule 17 C.P.C. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant Nos. 1 and 2 (appellants).

The Apex Court in the matter of 'Vidyabai' (cited supra) has observed as under:

By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads thus: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.

It is thus clear that if the amendment is sought after the commencement of trial, unless the court comes to the conclusion that in spite of exercise of due diligence, the party could not have raised the matter before the commencement of trial, the amendment cannot be allowed. In the present case, leave aside any averment regarding due diligence, there is not even a whisper in the written statement about the same. The only statement is that while filing the written statement the fact regarding said Mr. Parik being General Power of Attorney Holder could not be mentioned due to inadvertence. In that view of the matter, I am of the considered view that the learned trial court had no jurisdiction to entertain the amendment as there is nothing on record to show that the matter which was sought to be brought on record could not have been brought on record before the commencement of trial in spite of exercise of due diligence by the respondents/defendants.

7. In so far as the reliance placed on the judgment of the Apex Court in the case of 'Puran Ram' (supra) is concerned, it can be seen that the suit in the said case was filed in the year 1997 and as such, it is not governed by the amended provisions of the C.P.C.

8. In so far as the judgment of the Apex Court in the matter of 'Ahdhra Bank' (supra) is concerned, the said suit is also filed much prior to the amendment being made to the C.P.C. and as such, the said judgment would not be of any assistance to the case of the respondents.

9. The same is the case with the judgment in the case of 'United Bank of India' (supra). The suit in the case was filed in the year 1984.

10. In the case of Uday Shankar Triyar (supra) the suit was filed in the year 1989. In the case of Chander Kanta Bansal (supra) the suit was filed in the year 1986. In the case of Sajjan Kumar (supra) though from the judgment it is not clear as to in which year the suit was filed, it can be seen from the judgment that the order of the trial court was 29th April, 2002. It is thus clear that the said suit is also filed prior to the amendment to the CPC.

11. It could thus clearly be seen that in all the aforesaid cases relied upon by the learned Counsel for the respondents, the suits were filed prior to the amendment of C.P.C. As such, the said judgments would not be of any assistance to the respondents.

12. In so far as the judgment in the matter of 'Usha Devi v. Rijwan Ahmed' (supra) is concerned, in the facts of the said case it was found by the Apex Court that the evidence had not begun and as such, it was found that since the application was prior to commencement of trial, it was not necessary to satisfy the condition stipulated in proviso to Order VI Rule 17.

13. In so far as judgment in the case of 'Usha Balasaheb Swami and Ors.' (supra) is concerned, the Apex Court itself has observed thus:

However, Proviso to Order VI Rule 17 of the Code would not be applicable in the present case as the trial of the suit has not yet commenced.

14. In the case of 'Baldevsingh' (supra) also the parties were yet to file documents and as such, the Apex Court took a view that the trial was yet to commence and, therefore, the proviso to Order VI Rule 17 would not be applicable.

15. In so far as the judgment in the case of 'Rajkumar Gurawara (Dead) through LRs' (supra), the said judgment, instead of supporting the case of the respondents, in effect, supports the case of the present petitioners. The Apex Court in the said case has observed thus:

The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein. The said Rule with proviso again substituted by Act 22 of 2002 with effect from 17/2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.

To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.

16. It could thus clearly be seen that in the present case, the amendment which is sought to be made is after a period of 3 years from the filing of the written statement and that too after evidence is led by the parties and the suit is at the fag end of trial. In this factual background, I am of the considered view that the amendment could not have been allowed. The learned trial court had no jurisdiction to entertain the application unless it was satisfied that the matter sought to be brought on record could not be brought on record prior to the commencement of trial in spite of exercise of due diligence. In that view of the matter, writ petitions deserve to be allowed.

17. Writ petitions are allowed. Rule is made absolute in terms of prayer Clause (B). There shall be no orders as to costs.