Himachal Pradesh High Court
Smt. Bhagwanti vs Smt.Sesi on 27 November, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 85 of 2015 .
Date of decision: 27.11.2015
Smt. Bhagwanti. ...Petitioner
Versus
Smt.Sesi. ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of Whether approved for reporting?1 No. For the Petitioner: Mr.B.S. Arrti, Advocate.
For the Respondent:
rt Mr. Dibender Ghosh, Advocate.
Tarlok Singh Chauhan J. (oral).
This petition under Article 227 of the Constitution of India is directed against the order passed by learned Civil Judge (Junior Division), Manali on 7.1.2015, whereby application preferred by the petitioner for amendment of written statement came to be rejected.
2. The petitioner had sought amendment of the written statement by incorporating para 2A wherein she wanted to plead that the plaintiff and her siblings had got two storied house in exchange of the land from the predecessor-in-interest of the petitioner/respondent and vide sale deed dated 3.12.1990 the said house was sold by the respondent/plaintiff and her siblings to the predecessor-in-interest of the respondent for a consideration of `2,00,000/-.
3. The original written statement did not contain these averments which are now sought to be incorporated nor were these even put to the plaintiff during the course of cross-examination and the learned trial Court, therefore, rejected the application by according the following reasons:-
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 19:23:53 :::HCHP 2 "I. That the alleged sale of the house by way of the said sale agreement finds no mention in the pleadings of the applicant and there is no any reference to any such documents or such transaction and neither the same has been mentioned in the list of documents filed alongwith the .
written statement and not even any suggestion has been given to the respondent's/plaintiff's witnesses and nor any such thing is stated by the applicant's/defendant's witnesses and not even stated even in the affidavit of the applicant/defendant by way of evidence placed on record and at the very belated stage by way of the present application the applicant has come up with an entirely new case on new facts and it is of very belated stage;
II. By way of alleged agreement sought to be adduced in evidence the house is alleged to be sold for a consideration of Rs.2,00,000/-, so, it is rt in a way sale of immovable property of Rs.100/- or more and the said agreement is not registered in accordance with law. So, to my mind, the same cannot be legally adduced in evidence;
III. That parties litigating before the court are supposed to be diligent and to my mind the primary requirement is that the parties are supposed to act in good faith and with bonafide while pursuing or contesting a case. However, in the entirety of facts and circumstances of the case, to my mind, the instant application appears to be lacking on all these counts and deserves to be dismissed for same as well."
I have heard the learned counsel for the parties and gone through the records of the case.
4. Learned counsel for the petitioner has vehemently argued that in matter of amendment, especially those of the written statement, the Courts should be liberal, more particularly, when the same would not cause any injustice or prejudice to the other side. He in support of his averments has relied upon Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others (2006) 4 SCC 385 and Andhra Bank Vs. ABN Amro Bank N.V. and others (2007) 6 SCC 167.
5. There can be no quarrel with the proposition as laid down in the aforesaid judgments, but then is the ratio laid down therein applicable to the facts of the present case?
::: Downloaded on - 15/04/2017 19:23:53 :::HCHP 36. Admittedly, not only the trial has commenced, but even some of the defendant's witnesses already stand examined. Therefore, in such circumstances, there is no indefeasible right available to the parties to .
amend their pleadings, unless the condition as envisaged in proviso to Rule 17 of Order 6 is satisfied, which reads thus:-
""17. Amendment of Pleadings.- The Court may at any stage at the proceedings allow either party to alter or amend his of 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 rt 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."
7. This Court considered the scope and ambit of the amendment carried out in Rule 17 of Order 6 while adjudicating CMPMO No. 360 of 2015, titled Padam Kaushal Vs. Sh. Rajan Dogra (deceased) through his LRs, decided on 27.8.2015 and it was held:-
"6. At the outset it may be observed that it was with a view to shorten litigations and speed up the trial of cases that Rule 17 was omitted by the amendment Act 46 of 1999, but its omission evoked much controversy leading to wide protest and agitations and consequently the rule was restored in its original form by amending act 22 of 2002 with the rider in the shape of proviso, limiting the power of amendment to some extent.
7. This Court in Jeet Ram Kishore and others Vs. Sunder Singh, AIR 2005 HP 21 has held that the reasons for adding proviso is to curtail delay and to expedite hearing of cases. In that case, the defendant had sought amendment of written statement after the plaintiffs' evidence was closed and it was held that the amendment could not be allowed as defendant had failed to show that after exercise of due diligence, he could not apply for amendment before the commencement of trial.::: Downloaded on - 15/04/2017 19:23:53 :::HCHP 4
"14. While filing the application for amendment, except for mentioning regarding recording of passage by the Settlement Collector in the record-of-rights, there is not a murmur either regarding the said order having been set .
aside or the matter being further (sic) before the Financial Commissioner. When specifically questioned regarding this omission, learned Senior Counsel was unable to say anything in this behalf Necessity for asking him arose when the application was filed on 3-7-2003, long after passing of the order by the Settlement Collector, and its having been of set aside by the Divisional Commissioner, that in order to seek equitable and discretionary relief from the Court, least that was expected of the defendants was to have come rt straight and clean by bringing all the correct, facts to the notice of the Court. In this background, I have no hesitation in coming to the conclusion that the omission to mention about the order of the Collector having been set aside and the matter being pending before the Financial Commissioner, was intentional and wilful.
16. On a bare perusal of this proviso, it is evident that ordinarily amendment of pleadings is not to be allowed after the trial had commenced, unless of course, the Court was satisfied that the party concerned, could not apply after exercise of due diligence for such amendment before the commencement of the trial. Admittedly, in. the facts and circumstances of the case, trial had commenced when application under Order VI, Rule 17 read with Section 151 of the C.P.C. was filed. Rather it was at the stage of defendants" evidence, In these circumstances, again when a reference is made as to what is set out in the application seeking amendment, material portion whereof is extracted hereinabove, it is evident that except for using the words "after exercise of due diligence" averments in the application are not enough to enable the Court to consider the application to the light of the amended provisions, particularly proviso to Order VI, Rule 17 as it stands after the Code of Civil Procedure (Amendment) Act, 2002."
8. The Hon'ble Supreme Court has interpreted the proviso to be requirement mandated to prevent frivolous applications for amendment intended, only to delay the trial. In Salem Advocate Bar Association Vs. Union of India AIR 2005 SC 3353, it was held as follows:-
::: Downloaded on - 15/04/2017 19:23:53 :::HCHP 5"27. Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act .
22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow of amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought rt earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.
Service through Courier."
8. It is evident from the perusal of the aforesaid proviso and the exposition of law, as noticed above, 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 the trial. In other words, it was incumbent upon the petitioner, in the event of trial having been commenced, to have specifically pleaded that in spite of due diligence she could not raise the matter, now sought to be raised. Concededly, there is not even a whisper in the entire application regarding this fact.
After all right to amend is not an absolute right, but depend on various principles.
For the foregoing discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs.
(Tarlok Singh Chauhan), Judge.
27th November, 2015 (KRS) ::: Downloaded on - 15/04/2017 19:23:53 :::HCHP