Delhi High Court
Mohd. Saleem And Ors. vs Naseer Ahmed on 10 October, 2006
Equivalent citations: AIR 2007 DELHI 48, 2007 (1) AKAR (NOC) 103 (DEL) 2007 AIHC NOC 187, 2007 AIHC NOC 187, 2007 AIHC NOC 187 2007 (1) AKAR (NOC) 103 (DEL), 2007 (1) AKAR (NOC) 103 (DEL)
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
ORDER Sanjay Kishan Kaul, J.
1. CM Nos. 11177/2006 and 11178/2006 These applications have been filed to bring on record the legal heirs of the deceased respondent who passed away on 10-9-2005. The legal heirs are set out in para 2 of the application. Since the factum of the demise of the respondent was not known earlier and only came to be known in the proceedings in Court the application has been filed for condensation of delay.
The legal heirs have been served but none has put an appearance.
For the reasons stated in the application, the delay in filing the application is condoned and the legal heirs as set out in the application are brought on record.
Applications are allowed.
Amended Memo of parties is taken on record.
CM (M) No. 580/2003
1. The petitioners filed a suit for declaration, mandatory injunction and damages against the respondent alleging that the respondent is the step-brother of the petitioners. The suit property is stated to have been purchased by the petitioners in the year 1992. The original respondent herein has stated to be residing gratis in the suit property but failed to vacate the same on being asked to do so. Issues were framed in the suit but before evidence could be led, the petitioners filed an application seeking to amend the plaint to incorporate the relief of possession. This amendment has been disallowed by the impugned order dated 20-5-2003.
2. Learned Counsel for the original respondent Mr. R.K. Saini states that he has no instructions on behalf of the legal representatives. The legal representatives have been served but have failed to enter appearance and are thus proceeded ex parte.
3. On hearing learned Counsel for the petitioner, I am of the considered view that the trial Court failed to exercise jurisdiction vested in it by law while dismissing the application for amendment of the plaint in terms of the impugned order. The suit as originally framed also was for mandatory injunction but the petitioner rightly sought to incorporate the relief of possession by paying court-fee on the same since it is the case of the petitioner that the original respondent was in possession and the petitioner was seeking possession from the respondent. The only reason given by the trial Court for rejection of the amendment is that the application has been filed after framing of issues and that trial is a consequence of framing of issues. The framing of issues was treated as a stage of trial in the suit.
4. The relevant provision in this behalf reads as under:
Order VI Pleadings Generally
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 the due diligence, the party could not have raised the matter before the commencement of trial.
5. A perusal of the aforesaid provision shows that the Court has the discretion at any stage of the proceedings to allow alteration of pleadings but no application for amendment is to be allowed after the trial is commenced unless the Court comes to the conclusion that in spite of the due diligence the party could not have raised the matter before the commencement of trial.
6. Settlement of issues finds place under Order 14 of the Code of Civil Procedure, 1908 (hereinafter referred to as, 'the said Code"). Rule 1 of Order 14 of the said Code provides that issues on all material proposition of fact or law would be framed. Rule 4 of Order 14 of the said Code permits a Court to examine witnesses or documents before framing of issues to facilitate such framing of issues. The next stage in the contested suit is provided under Order 16 for summoning and attendance of witnesses. Order 18 provides for the hearing of the suit and examination of witnesses while Order 19 provides for filing of affidavit of evidence.
7. In my considered view, the stage of the trial only begins after the framing of issues when the directions are passed and a date fixed for filing of affidavits of evidence. In fact, a learned single Judge of this Court in Mrs. Suneel Sodhi v. Mr. M.L. Sodhi while considering this plea has taken the dates of trial fixed as the commencement of the trial.
8. I am fortified in this view by the judgment of learned single Judge of the Kerala High Court in Neelakandan Nair v. Parameswara Karup 2008 (2) KLT 943. It has been held in the said judgment that the expression 'trial' has been employed in the proviso to Rule 17 of Order 6 of the said Code only in what the Supreme Court described as the narrow sense of examination of witnesses, production of documents in evidence and all stage subsequent to the same. After issues are settled under Order 14 of the said Code, an opportunity is given to the parties to take what is only prescribed as pre-trial and then only the suit is listed for trial.
9. In Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd. , the Supreme Court followed its earlier decision in Harish Chandra Bajpai v. Triloki Singh. holding that in a limited sense, 'trial' means only the final hearing of a petition consisting of examination of witnesses, filing of documents and addressing of arguments.
10. The word 'trial' as described in Black's Law Dictionary (7th Edition) at page 1510 means:
Trial : A formal judicial examination of evidence and determination of legal claims in an adversary proceeding.
11. Similarly according to Ballentine's Law Dictionary (2nd Edition), 'trial' means, "an examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. When a Court hours and determines any issue of fact or law for the purpose of determining the right of the parties, it may be consideed a trial."
12. In Words and Phrases, Volume 7B, Collate Commodore, it has been stated as under:
The beginning of an opening statement, or, if there is no opening statement, the administering of the oath of affirmation to the first witness, or the introduction of any evidence, is the "commencement of trial" within statutory provision allowing a dismissal by plaintiff by written request to the clerk at any time before the actual "commencement of trial.
13. The matter is really no more res integra in view of the observations of the Apex Court, recently made in Baldev Singh v. Manohar Singh .
17. Before we part with this order, we may also notice that proviso to Order 6, Rule 17 CPC provides that amenument 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 the 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 herein before, 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.
14. The conspectus of the aforesaid pronouncements and definitions as to when a commencement of trial takes place leaves no manner of doubt that it refers to a stage after framing of issues and after the hiatus period thereafter where steps have to be taken to start the trial by examination Of witnesses whether in the form of filing of affidavit or otherwise.
15. In view of the aforesaid position, it cannot be said that on framing of issues itself the trial has commenced and thus the proviso to Rule 17 of Order 6 of the said Code would come into play.
16. It is also to be seen that the nature of amendment is really one of couching relief in the appropriate form in which is ought to have been made.
17. The impugned order is accordingly set aside and the application filed by the petitioner is allowed.
18. The petition is accordingly allowed leaving the parties to bear their own costs.
CM No. 1207/2003No further directions are called for in this application and the same stands disposed of.