Or. 6 rule 17 C.P.C - before commencement of trial , court can allow the amendment of pleadings if necessary =
What is THE MEANING "commencement of trial", and "set down" for trail in provision of Order 6, rule 17 C.P.C. ?
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.
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 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".
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."
................................................................................................
When amendment of plaint/written statement can be considered ?
"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.
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.
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.
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
C.R.P.No.854 of 2012
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.
<Gist:
>Head Note:
Citations:
1) (2009) 2 SCC 409
2) (2008) 5 SCC 117
3) (2006) 6 SCC 498
4) (2005) 4 SCC 480
5) (2005) 6 SCC 344
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 tobe 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.
What is THE MEANING "commencement of trial", and "set down" for trail in provision of Order 6, rule 17 C.P.C. ?
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.
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 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".
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."
................................................................................................
When amendment of plaint/written statement can be considered ?
"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.
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.
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.
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
C.R.P.No.854 of 2012
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.
<Gist:
>Head Note:
Citations:
1) (2009) 2 SCC 409
2) (2008) 5 SCC 117
3) (2006) 6 SCC 498
4) (2005) 4 SCC 480
5) (2005) 6 SCC 344
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 tobe 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.
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