Calcutta High Court (Appellete Side)
Sree Sree Iswar Radha Behari Jew And Sree ... vs Smt. Malati P. Soni on 5 September, 2018
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 2868 of 2017
Sree Sree Iswar Radha Behari Jew and Sree Sree Iswar Salgram Jew represented by Basudeb Das
vs.
Smt. Malati P. Soni
For the petitioner : Ms. Ajeya Mitra,
Mr. Tapas Kumar Majumder
For the opposite party : None.
Hearing concluded on : 27.08.2018
Judgment on : 05.09.2018
Sabyasachi Bhattacharyya, J.:‐
Despite service, none appears on behalf of the opposite party. As such, the matter is
heard ex parte.
2. The plaintiff in a suit for eviction has preferred the instant revisional application
against partial rejection of the petitioner's application for amendment of the plaint of the
said suit.
3. By virtue of the said amendment, the plaintiff inter alia sought to introduce the
current address of the defendant/opposite party in the cause title as well as to introduce the
allegation that the defendant has purchased a flat, through her son, at such new address and
is now residing there, keeping the suit premises under lock and key.
4. This apart, the amendment sought to alter the valuation of the suit from Rs.12,100/‐
to Rs.24,100/‐. In the body of the amendment application, it was stated that the monthly rent
as tendered by the defendant was Rs.2,000/‐, which necessitated the amendment regarding
valuation.
5. It is relevant to mention here that, in paragraph no. 5 of the original plaint, it was
stated that Pranab Kumar Das, a 'sebait' other than the one who filed the suit on behalf of
the plaintiff deity, had reduced the rate of rent to Rs.1,000/‐ per month payable according to
English calendar.
6. The Trial Court allowed the amendments relating to the acquisition of new
property by the defendant's son and change of address of the defendant, but refused to
allow the parts of the amendment whereby the valuation of the suit was sought to be
changed. The premise of such rejection was that the plaintiff must have known the actual
rate of rent of the suit property from the very inception of the suit and that, after
commencement of trial, the plaintiff intended to incorporate that the rate of rent was
Rs.2,000/‐. As such, the said part of the amendment was refused by invoking the proviso to
the amended Order VI Rule 17 of the Code of Civil Procedure.
7. Learned counsel for the plaintiff/petitioner argues that the Trial Court refused to
exercise jurisdiction vested in it by law in not permitting the amendment relating to change
of valuation of the suit. It is argued that, in terms of Section 10 of the West Bengal Court Fees
Act, 1970, in every suit in which the court fee is payable on the plaint or memorandum of
appeal the Court shall, on the date fixed for the appearance of the opposite party or as soon
as may be thereafter, and in every case before proceeding to deliver judgment, record a
finding whether sufficient court fee has been paid. In case of insufficient court fees having
been paid, consequences such as stay of all further proceedings in the suit are also
contemplated in the said section.
8. As such the plaintiff, it is argued, only sought to assist the Court by pointing out
the proper valuation of the suit for the purpose of assessment of court fees by way of the
amendment and as such, the amendment in that regard ought to have been allowed as a
matter of course, without going into the rigours of the proviso to Order VI Rule 17 of the
Code of Civil Procedure. Learned counsel further argued that the proposed amendment
was necessary to avoid multiplicity of proceedings.
9. In this context, learned counsel cites a judgment of the Supreme Court reported at
(2015) 4 SCC 182 [Mount Mary Enterprises vs. Jivratna Medi Treat Pvt. Ltd.]. In the said
judgment, it was held inter alia that Order VI Rule 17 of the Code of Civil Procedure
postulates amendment of pleadings at any stage of the proceedings and amendments should
be refused only where the other party cannot be placed in the same position as if the
pleading had been originally correct, but the amendment would cause him an injury which
could not be compensated in costs.
10. It was further held that an amendment application should be normally granted
unless by virtue of the amendment, nature of the suit is changed or some prejudice is caused
to the defendant. Since the amendment had been taken out in the said case to give the
correct value of the suit property, as the market value of the property was different from the
initial valuation of the same, the said amendment was allowed.
11. In this context, learned senior counsel for the petitioner cites another judgment
reported at AIR 1961 SC 1299 [Sri Rathnavarmaraja. vs. Smt. Vimla], wherein it was held inter
alia that the matter of proper court fee was primarily a question between the plaintiff and
the State and there could not be any scope for the defendant feeling aggrieved. As such, it is
argued that the plaintiff only tried to do its duty by pointing out the correct valuation of the
suit property by way of amendment.
12. Learned senior counsel cites a further judgment of a co‐ordinate Bench of this
Court reported at 2009(3) CHN 328 [Ila Choudhury vs. Maya Bose and others], wherein it was
held that the Trial Court could not keep the matter of ascertainment of proper court fees
undecided and in abeyance till final hearing of the suit and ought to decide the matter upon
an enquiry under Section 11 of the West Bengal Court Fees Act, 1970, if necessary,
expeditiously.
13. This apart, it was argued that it is well‐settled that amendments are generally to
be allowed to avoid multiplicity of proceedings.
14. Learned senior counsel for the petitioner cites a judgment reported at (2011) 12
SCC 268 [State of Madhya Pradesh vs. Union of India and another], wherein the Supreme Court
inter alia held that in certain cases amendment sought after commencement of trial was
permissible. It was held that though the courts have ample power to allow amendment of
plaint, such power should be exercised in the interest of justice and for determination of real
questions in controversy between the parties. Either party can alter or amend his pleadings
in such manner and on such terms as may be just; however, amendments cannot claimed as
a matter of right and under all circumstances, but the courts while deciding such prayers
should not adopt a hyper‐technical approach. Liberal approach, it was held, should be the
general rule, particularly in cases where the other side can be compensated with costs.
Normally, amendments are allowed in pleadings to avoid multiplicity of litigations.
15. It was further held that where the amendment application is filed after
commencement of trial, it must be shown that in spite of due diligence, such amendment
could not have been sought earlier.
16. Learned senior counsel for the petitioner next cites a judgment reported at AIR
2006 SC 2832 [Baldev Singh vs. Manohar Singh]. In the said judgment, the Supreme Court held
inter alia that a wide power and unfettered discretion has been conferred on the court to
allow amendment of pleadings in such manner and on such terms as it appears to the court
to be just and proper. In the said decision, a distinction was, however, made between the
amendment of plaint and that of written statement. The plaintiff, it was held, cannot be
allowed to amend his pleadings to alter materially or substitute his cause of action or the
nature of his claim, however, such fetter was not applicable to amendments of written
statement. In paragraph no. 17 of the said judgment, it was held that 'commencement of
trial', as used in the proviso to Order VI Rule 17 of the Code, 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.
17. At this juncture, upon a decision of the Supreme Court, reported at (2009) 2 SCC
409 [Vidyabai vs. Padmalatha], being pointed out by the Court, learned senior counsel submits
that the said judgment, also reported at AIR 2009 SC 1433, was referred to in a judgment
rendered by this Court in C.O. No. 1323 of 2013 and the learned Single Judge, even upon
considering the said judgment, had come to the conclusion that the commencement of trial
was from the stage of filing of affidavit of examination‐in‐chief. Thus, it was argued that the
portion of the impugned order whereby the amendment application of the
plaintiff/petitioner was partially rejected, ought to be set aside and such amendment
allowed.
18. Learned senior counsel next cites a judgment of a co‐ordinate Bench of this Court,
rendered on April 26, 2013 in C.O. No. 1323 of 2013, which is apparently unreported. In the
said judgment, Baldev Singh (supra) was relied on, apart from another judgment of the
Supreme Court reported at AIR 2009 SC 1433 [Vidyabai and others vs. Padmalatha and another].
The learned Single Judge, upon placing reliance on those judgments, arrived at the
conclusion that the date on which the affidavit as to examination‐in‐chief is filed should be
the date for the purpose of commencement of trial as envisaged under the proviso to Order
VI Rule 17 of the Code.
19. Upon a consideration of the judgments cited by the petitioner, it is seen that the
consistent view of the Courts has been that amendments ought to be allowed liberally, in
particular to avoid multiplicity of proceedings. However, the introduction of the proviso to
Order VI Rule 17 of the Code of Civil Procedure has put a fetter to the liberal view,
inasmuch as, if the amendment application is filed after the commencement of trial, the
same shall not be allowed, 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. In
Mount Mary Enterprises (supra), the facts were different from the present case. The suit
therein had been filed for specific performance of a contract. Subsequently, it was pointed
out in the written statement that the market value of the suit property was much higher than
that pleaded by the plaintiff in the original plaint. In such case, the amendment was refused
by the Trial Court on the ground that upon enhancement of the valuation of the suit
property, the suit was to be transferred to the High Court on its Original Side. The Hon'ble
Supreme Court held that the amendment could not have been rejected on the said reason. In
such context, the amendment was allowed.
20. In the present case, however, the plaintiff sought to amend the valuation of the
suit without incorporating a corresponding change in the body of the plaint relating to the
basis of such enhancement of the valuation. Only in the body of the amendment application
itself (although not in the schedule of amendment), it was indicated that the monthly rent as
tendered by the defendant was Rs. 2,000/‐ (Rupees Two Thousand). Moreover, as correctly
held by the Trial Court, the plaintiff ought to have known the correct rate of rent from the
inception of the suit and no justification for the filing of the amendment application after
commencement of trial was given in the amendment application.
21. As far as the judgment of State of Madhya Pradesh (supra) was concerned, it was
held therein that normally amendments are allowed in pleadings to avoid multiplicity of
litigation and that liberal approach was the general rule. However, it was further held that
where the amendment application was filed after commencement of trial, it must be shown
that in spite of due diligence, such amendment could not have been sought earlier. In the
present case, there does not appear to be any such cause shown in the amendment
application.
22. In Sri Rathnavarmaraja (supra), the Hon'ble Supreme Court held that the matter of
proper court fee was primarily a question between the plaintiff and the State and there could
not be any scope of the defendant feeling aggrieved.
23. In Ila Choudhury (supra), on the other hand, a co‐ordinate Bench of this Court held
that the Trial Court could not keep the matter of ascertainment of proper court fees
undecided and in abeyance till final hearing of the suit.
24. By relying on such judgments, learned counsel for the petitioner tries to impress
upon this Court that by way of amendment, the plaintiff only sought to disclose the correct
valuation in order to assist the Court and that the defendant could not have any say in the
matter.
25. However, although there is no dispute that proper court fees ought to be
ascertained by the Court when called upon to do so, the present matter relates to alteration
of a particular valuation of the suit by way of amendment. It is not for the first time, by way
of amendment, that the valuation was sought to be incorporated, but a particular valuation
had already been given in the original plaint, which was now sought to be altered by
amendment. Since no reason whatsoever was given for not filing the amendment earlier, the
said amendment could not be allowed merely on the ground that the same pointed out the
valuation of the suit, more so since the effort was only to alter the valuation originally given.
26. Coming to the judgment of Baldev Singh (supra), although it was held therein that
'commencement of trial', as used in the proviso to Order VI Rule 17 of the Code, must be
understood in the limited sense as meaning the final hearing of the suit, examination of
witnesses, filing of documents and addressing of argument, yet it was held in the
subsequent judgment of Vidyabai (supra) by a Bench of the same strength, that Baldev Singh
(supra) was not an authority for the proposition that trial would not be deemed to have
commenced on the date of first hearing. In that case, as explained in Vidyabai (supra), the
documents were yet to be filed and therefore, it was held that the trial did not commence.
27. The Hon'ble Supreme Court, in Vidyabai (supra), categorically distinguished the
'commencement of proceeding', which began with the filing of an affidavit in lieu of
examination‐in‐chief of the witness, with 'commencement of trial', which began on the date
on which the issues were framed, which was the date of first hearing.
28. In this context, the following paragraphs of Vidyabai (supra) would be relevant:
"8. Mr S.K. Kulkarni, learned counsel appearing on behalf of the appellants, would submit
that in view of the proviso appended to Order 6 Rule 17 of the Code, the High Court committed a
serious illegality in passing the impugned judgment.
9. Ms Kiran Suri, learned counsel appearing on behalf of the respondents, on the other hand,
would contend that the proviso appended to Order 6 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.
10. 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 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 courtʹs 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.
11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. 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 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".
12. Although in a different context, a three‐Judge Bench of this Court in Union of India v. Major‐ General Madan Lal Yadav [(1996) 4 SCC 127 : 1996 SCC (Cri) 592] took note of the dictionary meaning of the terms "trial" and "commence" to opine: (SCC p. 136, para 19) "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.
13. Order 18 Rule 4(1) of the Code reads as under:
"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."
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: (SCC p. 707, paras 15‐16) "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."
14. In Kailash v. Nanhku [(2005) 4 SCC 480] this Court held: (SCC pp. 490‐91, para 13) "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'."
15. We may notice that in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. [(2006) 12 SCC 1] this Court noticed the decision of this Court in Kailash [(2005) 4 SCC 480] to hold:
(Ajendraprasadji case [(2006) 12 SCC 1] , SCC p. 13, paras 35‐36) "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 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:
(Ajendraprasadji case [(2006) 12 SCC 1] , SCC pp. 14‐15, paras 41‐43) "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 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 [(2005) 4 SCC 480] 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."
29. It is clear that the Hon'ble Supreme Court categorically held in Vidyabai (supra) that trial, for the purpose of the proviso to Order VI Rule 17 of the Code of Civil Procedure, commenced on the date of first hearing, that, is the framing of issues.
30. In the present case, it appears that the amendment application was filed after framing of issues, though before commencement of evidence. Hence, the ratio laid down in Vidyabai (supra) would preclude the amendment from being allowed, as correctly decided by the Trial Court.
31. However, a co‐ordinate Bench of this Court, in C.O. No. 1323 of 2013, vide order dated April 26, 2013, held that the date on which the affidavit as to examination‐in‐chief is filed should be the date for the purpose of commencement of trial as envisaged under the proviso to Order VI Rule 17 of the Code.
32. With utmost respect, the said view expressed by the learned Single Judge in C.O. No. 1323 of 2013, although arrived at by placing reliance on Vidyabai (supra), was contrary to the ratio laid down in Vidyabai (supra) and, as such, is not correct.
33. Hence, in the opinion of this Court, the present matter ought to be referred to a larger Bench for the purpose of resolution of the said question of law.
34. Accordingly, C.O. No. 2868 of 2017 be sent to the Hon'ble the Chief Justice for constituting a Division Bench for deciding, on reference, the following question:
Whether, in view of Vidyabai vs. Padmalatha [(2009) 2 SCC 409], 'commencement of trial', as envisaged in the proviso to Order VI Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is the date of framing of issues, or the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments?
35. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )