Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7251 OF 2008
[Arising out of SLP (Civil) No. 4740 of 2008]
Vidyabai & Ors. …Appellants
Versus
Padmalatha & Anr. . …Respondents
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Whether pleadings can be directed to be amended after the hearing of
a case begins is the question involved in this appeal which arises out of a
judgment and order dated 24.10.2007 passed by the High Court of
Karnataka at Bangalore in Writ Petition No. 14013 of 2007.
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3. On or about 16.12.2003, the plaintiffs – appellants filed a suit for
specific performance of an agreement of sale. According to the plaintiffs,
one Prashant Sooji (since deceased) executed an agreement of sale on
15.01.2001 in respect of the suit property for a sum of Rs. 21 lakhs.
Defendants – Respondents are the predecessors in interest of the said
Prashant Sooji.
A written statement was filed on 17.04.2004. An application for
amendment of the written statement was filed on 8.11.2006. In between the
period 17.04.2004 and 8.11.2006, however, indisputably issues were framed
and parties filed their respective affidavits by way of evidence. Dates had
been fixed for cross-examination of the said witnesses.
On or about 8.11.2006, an application had been filed under Order VI
Rule 17 of the Code of Civil Procedure (for short “the Code”), which was
marked as IA 9 of 2006, seeking amendment to the written statement. On
the same day, another application, which was marked as IA 10 of 2006, had
also been filed purported to be under Order VIII Rule 1A of the Code for
production of additional documents.
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By reason of an order dated 18.07.2007, the learned Principal Civil
Judge (Sr. Dn.) Hubli dismissed the said applications holding that an
entirely new case is sought to be made out. The contention that they had no
knowledge of the facts stated therein and the respondents could not gather
the materials and information necessary for drafting proper written
statement earlier was rejected, stating:
“…However, this contention cannot be accepted.
Because according to proposed amendment sought
by defendants at para 3(a) will is dated 18.3.94.
Therefore, naturally same would have been in the
knowledge of defendants right from the date and
moreover when they say that mother-in-law of
defendant No. 1 is also necessary party and she is
also got right and interest in the suit property and
that she is alive, then through her defendants
would have known about will right from
beginning and hence it cannot be said that
defendant No. 1 required time to gather
information regarding will and further as details of
will would have been within the knowledge of
defendants and/ or could have been given by
mother-in-law of defendant No. 1 i.e. Subhadrabai,
then it was not necessary for defendant No. 1 to
have any social activities or have knowledge of
business to know about the will and hence
proposed amendment regarding will cannot said to
be not within the knowledge of defendants at the
time of filing of written statement. Further
regarding husband of defendant No. 1 being
addicted to bad vices like womanizing, drinking
etc again this would have been within the personal
knowledge of defendant No. 1 as she is wife of
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deceased Prashant against whom whose
allegations are made and this would have been in
here knowledge right from the beginning and to
have said knowledge again she need not have any
knowledge of business or social activities and thus
she also did not require any time to gather that the
information which are well within her own
knowledge…”
4. A writ petition was filed thereagainst. By reason of the impugned
judgment, the High Court noticed the defence of the appellants in the
following terms:
“There is no retracting of statement made in
written statement already filed by the defendants”.
It, however, took into consideration the fact that the said IAs were
filed after the affidavit of evidence had been filed by the plaintiffs –
appellants. Despite noticing the proviso appended to Order VI, Rule 17 of
the Code, it was held;
“…According to Order 6 Rule 17, an amendment
application can be filed at any stage of the
proceeding. Filing of affidavit by way of evidence
itself is not a good ground to reject the application
filed seeking amendment of written statement. It
is not out of place to mention that the parties must
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be allowed to plea. Such a valuable right cannot
be curtailed in the absence of good ground.”
I.A. 10 was also directed to be allowed.
5. Mr. S.K. Kulkarni, learned counsel appearing on behalf of the
appellants, would submit that in view of the proviso appended to Order VI
Rule 17 of the Code, the High Court committed a serious illegality in
passing the impugned judgment.
6. Ms. Kiran Suri, learned counsel appearing on behalf of the
respondents, on the other hand, would contend that the proviso appended to
Order VI Rule 17 of the Code is not attracted in the instant case as by reason
of the amendment to the written statement, no new case has been made out.
It was submitted that ‘leave’ to amend the written statement was filed for
the purpose of elaborating the defence which had already been taken by the
defendants and in that view of the matter, this Court should not exercise its
jurisdiction under Article 136 of the Constitution of India particularly when
it is well-known that an application for amendment of written statement
should be dealt with liberally.
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7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act
22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17
of the Code, which reads as under:
“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 couched in a mandatory form. The court’s jurisdiction to allow
such an application is taken away unless the conditions precedent therefor
are satisfied, viz., it must come to a conclusion that in spite of due diligence
the parties could not have raised the matter before the commencement of the
trial.
8. From the order passed by the learned Trial Judge, it is evident that the
respondents had not been able to fulfill the said pre-condition.
The question, therefore, which arises for consideration is as to
whether the trial had commenced or not. In our opinion, it did. The date on
which the issues are framed is the date of first hearing. Provisions of the
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Code of Civil Procedure envisage taking of various steps at different stages
of the proceeding. Filing of an affidavit in lieu of examination in chief of
the witness, in our opinion, would amount to ‘commencement of
proceeding’.
9. Although in a different context, a Three-Judge Bench of this Court in
Union of India and Others v. Major General Madan Lal Yadav (Retd.)
[(1996) 4 SCC 127] took note of the dictionary meaning of the terms “trial”
and “commence” to opine:
19. It would, therefore, be clear that trial means act
of proving or judicial examination or
determination of the issues including its own
jurisdiction or authority in accordance with law or
adjudging guilt or innocence of the accused
including all steps necessary thereto. The trial
commences with the performance of the first act or
steps necessary or essential to proceed with the
trial.
The High Court, as noticed hereinbefore, opined that filing of an
affidavit itself would not mean that the trial has commenced.
10. Order XVIII, Rule 4(1) of the Code reads as under:
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“4. Recording of evidence
(1) In every case, the examination-in-chief of a
witness shall be on affidavit and copies thereof
shall be supplied to the opposite party by the party
who calls him for evidence:
Provided that where documents are filed and the
parties rely upon the documents, the proof and
admissibility of such documents which are filed
along with affidavit shall be subject to the orders
of the Court.”
11. This aspect of the matter has been considered by this Court in Ameer
Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702]
in the following terms:
“15. The examination of a witness would include
evidence-in-chief, cross-examination or re-
examination. Rule 4 of Order 18 speaks of
examination-in-chief. The unamended rule
provided for the manner in which “evidence” is to
be taken. Such examination-in-chief of a witness
in every case shall be on affidavit.
16. The aforementioned provision has been made
to curtail the time taken by the court in examining
a witness-in-chief. Sub-rule (2) of Rule 4 of Order
18 of the Code of Civil Procedure provides for
cross-examination and re-examination of a witness
which shall be taken by the court or the
Commissioner appointed by it.”
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In Kailash v. Nanhku [(2005) 4 SCC 480], this Court held:
“13. 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. As held by this Court in
several decided cases, this general rule is not
applicable to the trial of election petitions as in the
case of election petitions, all the proceedings
commencing with the presentation of the election
petition and up to the date of decision therein are
included within the meaning of the word “trial”.”
We may notice that in Ajendraprasadji N. Pandey and Another v.
Swami Keshavprakeshdasji N. and Others [(2006) 12 SCC 1], this Court
noticed the decision of this Court in Kailash (supra) to hold:
“35. By Act 46 of 1999, there was a sweeping
amendment by which Rules 17 and 18 were
wholly omitted so that an amendment itself was
not permissible, although sometimes effort was
made to rely on Section 148 for extension of time
for any purpose.
36. Ultimately, to strike a balance the legislature
applied its mind and reintroduced Rule 17 by Act
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22 of 2002 w.e.f. 1-7-2002. It had a provision
permitting amendment in the first part which said
that the court may at any stage permit amendment
as described therein. But it also had a total bar
introduced by a proviso which prevented any
application for amendment to be allowed after the
trial had commenced unless the court came to the
conclusion that in spite of due diligence the party
could not have raised the matter before the
commencement of the trial. It is this proviso which
falls for consideration.”
This Court also noticed Salem Advocate Bar Assn. v. Union of India
[(2005) 6 SCC 344] to hold:
“41. We have carefully considered the submissions
made by the respective Senior Counsel appearing
for the respective parties. We have also carefully
perused the pleadings, annexures, various orders
passed by the courts below, the High Court and of
this Court. In the counter-affidavit filed by
Respondent 1, various dates of hearing with
reference to the proceedings taken before the
Court has been elaborately spelt out which in our
opinion, would show that the appellant is
precluded by the proviso to rule in question from
seeking relief by asking for amendment of his
pleadings.
42. It is to be noted that the provisions of Order 6
Rule 17 CPC have been substantially amended by
the CPC (Amendment) Act, 2002.
43. Under the proviso no application for
amendment shall be allowed after the trial has
commenced, unless in spite of due diligence, the
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matter could not be raised before the
commencement of trial. It is submitted, that after
the trial of the case has commenced, no
application of pleading shall be allowed unless the
above requirement is satisfied. The amended Order
6 Rule 17 was due to the recommendation of the
Law Commission since Order (sic Rule) 17, as it
existed prior to the amendment, was invoked by
parties interested in delaying the trial. That to
shorten the litigation and speed up disposal of
suits, amendment was made by the amending Act,
1999, deleting Rule 17 from the Code. This
evoked much controversy/hesitation all over the
country and also leading to boycott of courts and,
therefore, by the Civil Procedure Code
(Amendment) Act, 2002, provision has been
restored by recognising the power of the court to
grant amendment, however, with certain limitation
which is contained in the new proviso added to the
rule. The details furnished below will go to show
as to how the facts of the present case show that
the matters which are sought to be raised by way
of amendment by the appellants were well within
their knowledge on their court case, and manifests
the absence of due diligence on the part of the
appellants disentitling them to relief.”
The ratio in Kailash (supra) was reiterated stating that the trial is
deemed to commence when the issues are settled and the case is set down
for recording of evidence.
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12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and
Others v. Manohar Singh and Another [(2006) 6 SCC 498], wherein it was
opined:
“17. Before we part with this order, we may also
notice that proviso to Order 6 Rule 17 CPC
provides that amendment of pleadings shall not be
allowed when the trial of the suit has already
commenced. For this reason, we have examined
the records and find that, in fact, the trial has not
yet commenced. It appears from the records that
the parties have yet to file their documentary
evidence in the suit. From the record, it also
appears that the suit was not on the verge of
conclusion as found by the High Court and the
trial court. 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 to the court
to allow an amendment of the written statement at
any stage of the proceedings.
It is not an authority for the proposition that the trial would not
deemed to have commenced on the date of first hearing. In that case, as
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noticed hereinbefore, the documents were yet to be filed and, therefore, it
was held that the trial did not commence.
13. Reliance has also been placed by Ms. Suri on Pradeep Singhvi and
Another v. Heero Dhankani and Others [(2004) 13 SCC 432]. Therein, the
suit was filed in the year 1995 and, therefore, the proviso appended to Order
VI, Rule 17 of the Code of Civil Procedure had no application.
Reliance has also been placed by Ms. Suri on Rajesh Kumar
Aggarwal and Others v. K.K. Modi and Others [(2006) 4 SCC 385]. No
doubt, as has been held by this Court therein that the court should allow
amendments that would be necessary to determine the real question of the
controversy between the parties but the same indisputably would be subject
to the condition that no prejudice is caused to the other side.
14. 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.
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However, proviso appended to Order VI, 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 no jurisdiction at all to allow the amendment of
the plaint.
15. In Salem Advocate Bar Assn (supra), this Court has upheld the
validity of the said proviso. In any event, the constitutionality of the said
provision is not in question before us nor we in this appeal are required to
go into the said question.
16. Furthermore, the judgment of the High Court does not satisfy the test
of judicial review. It has not been found that the learned Trial Judge
exceeded its jurisdiction in passing the order impugned before it. It has also
not been found that any error of law has been committed by it.
The High Court did not deal with the contentions raised before it. It
has not applied its mind on the jurisdictional issue. The impugned
judgment, therefore, cannot be sustained, which is set aside accordingly.
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17. However, we may observe that the question as to whether the
documents should have been called for or not by the court without there
being the amended written statement before it may be considered afresh.
18. The appeal is allowed. However, in the facts and circumstances of
the case, there shall be no order as to costs.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Cyriac Joseph]
New Delhi;
December 12, 2008