Rajesh Sharma vs Krishan Pal & Anr. on 13 September, 2011

[Cites 8, Cited by 13]

Delhi High Court

Rajesh Sharma vs Krishan Pal & Anr. on 13 September, 2011

1. Vide this application the plaintiff wants to amend the plaint so as to add the relief of possession of the suit property in the prayer clause. The plaintiff had initially claimed declaration that the sale deed dated 16 th January, 2006 executed in respect of suit property is null and void. He also sought cancellation of the aforesaid sale deed and a declaration that he is the owner in possession of the suit CS(OS)No. 800/2006 Page 1 of 13 land. An injunction was also sought restraining the defendants from dispossessing him from the suit property and getting it mutated in the name of the defendant No.1.

2. In the application under consideration it has been alleged that during pendency of the suit, the defendants on 10th December, 2009, forcibly dispossessed the plaintiff from the suit property, in disregard to the status quo order passed by the Court. The plaintiff therefore wants to amend the plaint so as to add the relief of possession of the suit property.

3. The application has been opposed by the defendants on the following three grounds:

a) the plaintiff was not in possession of the suit property when the suit was filed,

b) the jurisdiction of Civil Court to grant relief of possession is barred by Section 185 of Delhi Land Reforms Act, and

c) the proposed amendment is hit by the proviso to Order 6 Rule 17 of the Code of Civil Procedure.

4. It is settled proposition of law that while considering an application for amendment of pleadings, the Court cannot go into truthfulness or otherwise of the CS(OS)No. 800/2006 Page 2 of 13 averments sought to be made by way of proposed amendment. Hence, there is no merit in the first objection taken by the defendants. In this regard, the following view taken by Supreme Court in Rajesh Kumar Aggarwal & Ors. v. K.K.Modi & Ors. JT 2006(3) SC 607 is pertinent:

While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.

5. As regards the plea that the jurisdiction of Civil Court to grant possession of the suit property is barred by Section 185 of Delhi Land Reforms Act, the question cannot be examined by the Court while considering an application for amendment of the plaint. If the amendment is allowed, the defendants will have an opportunity to file Written Statement to the amended plaint and it will be open to them to take objection with respect to exclusion of the jurisdiction of the Civil Court. That would be the appropriate stage to deal with this issue. I, therefore, find no merit in the second CS(OS)No. 800/2006 Page 3 of 13 objection as well.

6. Coming to the last objection, the proviso to Order 6 of the Code of Civil Procedure, to the extent it is relevant, provides that no application for amendment shall be allowed „after the trial has commenced‟ unless the Court is satisfied that inspite of due diligence, the applicant could not have raised the matter before the commencement of trial.

7. The question which comes up for consideration is as to whether it can be said that a trial had commenced in this case, when this application was filed. A perusal of the record would show that issues in this case were framed on 13th November, 2009 when the parties were also directed to file list of witnesses within four weeks and plaintiff was directed to file evidence by way of affidavit for examination- in-chief within eight weeks. Thereafter, IA No. 15052/2009 was filed by defendant No.1 under Order 13 Rule 1&2 CPC, which came to be disposed of on 25th March, 2011. In the meantime, the Joint Registrar had vide order dated 25 th February, 2010 listed the matter for plaintiff‟s evidence on 18th August, 2010. Despite the orders to this effect, affidavits by way of evidence have not been filed by the plaintiff till date.

CS(OS)No. 800/2006 Page 4 of 13

8. The question as to whether or not the trial can be said to have commenced when issues are framed and the case is listed for trial or not, came up for consideration before this Court in Mohd. Saleem & Ors. v. Naseer Ahmed AIR 2007 Delhi 48 and Link Engineer (P) Limited v. M/s Asea Brown Boveri Limited & Ors. 140(2007) DLT

533. In Mohd. Saleem (Supra), the issues were framed but before the evidence could be led, the petitioner filed an application seeking to amend the plaint to incorporate the relief of possession; the amendment was disallowed by the trial Court. During the course of the judgment, this Court inter alia observed as under:

9. In Indian Bank v. Mahrashtra State Co-operative Marketing Federation Ltd. (1998) 5 SCC 69 : (AIR 1998 SC 1962), the Supreme Court followed its earlier decision in Harish Chandra Bajpai v.

Triloki Singh, AIR 1957 SC 444 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 (7 th Edition) at page 1510 means:-

"Trial: A formal judicial examination of evidence and determination of legal claims in an adversary proceeding."

x x x CS(OS)No. 800/2006 Page 5 of 13

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 (2006) 6 SCC 498: AIR 2006 SC 2832 "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 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 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."

Allowing the petition filed by the petitioner, this Court concluded as under:

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 CS(OS)No. 800/2006 Page 6 of 13 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 affidavits 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.

9. In Link Engineering (P) Limited (supra), the issues were framed on 28th August, 2006 and on the same date, the parties were directed to file their list of witnesses within six weeks and the plaintiff was directed to file affidavits of witnesses within eight weeks. 4th December, 2006 was fixed for recording of evidence. The facts of the case were thus almost identical to the facts of the case before this Court. The plaintiff in that case filed an application on 17th November, 2006 seeking amendment of the plaint. The application was opposed by the defendants on the ground that in view of the proviso to Order 6 Rule 17 Code of Civil Procedure, the plaintiff could not be permitted to amend the plaint at that stage. After considering the decision of Supreme Court in Baldev Singh & Ors. v.

Manohar Singh & Anr. (2006) 6 SCC 498, Rajesh Kumar Aggarwal & Ors. v. K.K.Modi & Ors. (supra) and CS(OS)No. 800/2006 Page 7 of 13 Ajendraprasadji N. Pande and Anr. v. Swami Keshavprakeshdasji N. & Ors. (2007) 1 JT 579 and also the decision of this Court in Mohd. Saleem (supra), it was held that the trial did not commence on 28th August 2006 when the issues were framed and as per the practice of the Court directions were passed for filing of list of witnesses and affidavits of examination-in-chief. The Court was of the view that if the affidavits of examination-in-chief are not to be filed but the witnesses are to be examined, the date for appearance of the witnesses itself would be the date for commencement of the trial, but the position would be different in a case where the evidence is to be filed by way of affidavit. The court felt that it would not be appropriate to shut out the plaintiff from seeking amendment of the plaint on the ground that there is commencement of trial since the date for filing of the affidavits of evidence had expired though the date for appearance of the witness was yet to be come.

10. In Smt. Basanti Satapathy & Ors. v. Rakesh Kumar Satapathy 2003 AIHC 1947 (Orissa) the High Court was of the view that the expression "where the trial has commenced" occurring in the proviso to Order 6 Rule 17 of CS(OS)No. 800/2006 Page 8 of 13 Code of Civil Procedure should be read in a strict sense and can also have a restricted meaning namely where the taking of evidence is started. The Court was of the view that considering the object sought to be achieved by conferment of power to allow amendment of pleadings, the restriction imposed by the proviso on that power, should be limited to cases where the trial as it is generally known viz. the examination of witnesses has commenced. In Neelakandan Nair v. Parameswara Kurup 2003(2) KLT 943, the Court was of the view that in a narrower sense trial would mean only the stage of actual adducal of evidence - documentary or oral and in the context of Order 6 Rule 17 CPC, it means the commencement of actual trial or actual adducal of evidence.

11. The learned Counsel of defendants has however, relied upon the decision of Supreme Court in Kailash v. Nanhku & Ors. (2005) 4 SCC 480 and the decision of this Court in Mrs. Suneel Sodhi & Ors. v. M.L.Sodhi & Ors AIR 2004 Delhi 99. In Kailash v. Nanhku (supra) the issue before the Supreme Court was regarding extension of time for filing Written Statement in an election petition. During CS(OS)No. 800/2006 Page 9 of 13 the course of the judgment, the Court inter alia observed 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 content 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".

12. Since, this is not an election petition, this judgment would not apply. Moreover, Supreme Court in this case was not examining the meaning of the expression „trial has commenced‟, used in the proviso to Order 6 Rule 17 of Code of Civil Procedure, in a case, where evidence is to be led on affidavits. In Mrs. Suneel Sodhi (supra) an application for amendment of the Written Statement was filed by the legal representatives of defendant No.3, who wanted to set up a Will alleged to have been executed by CS(OS)No. 800/2006 Page 10 of 13 Shri M.L.Sodhi and Smt. Raj Sodhi. It was noted by the Court that the dates of trial were fixed from 22 nd to 25th October, 2002 and therefore it could be safely concluded that the application filed on 8th October, 2002 would not fall within the prohibition of amended Order 6 Rule 17 of Code of Civil Procedure. The application was accordingly allowed. Therefore, this judgment does not hold a proposition of law that once the issues are framed and the dates of filing affidavits by way of evidence are fixed, the trial commences on such an order being passed by the Court.

13. The learned Counsel for the defendants states that the trial commenced on 25th February, 2010 when the matter was listed before the Joint Registrar after framing of issues and the date for recording evidence was fixed by him. I, however, do not find myself in agreement with the learned Counsel for the defendants. I fail to appreciate when the trial in a suit where the witnesses have to be examined in person instead of filing affidavits by way of their examination-in-chief commences on the appearance of the witness in the Court, for the purpose of giving evidence, how, in a suit where the examination-in-chief is to be CS(OS)No. 800/2006 Page 11 of 13 recorded on affidavits can it be said to commence when such affidavits being actually filed in the Court. When the Court fixes dates for recording evidence, these are the dates when the trial is scheduled to commence, but, actual commencement of the trial takes place only when either the witness appears in the Court for giving evidence or the affidavits of the witnesses are filed by way of their examination-in-chief. In any case, considering the observations made by Supreme Court in Baldev Singh (supra), where the Court noticing that documentary evidence have not been filed, took the view that the trial had not commenced within the meaning of proviso to Order 6 Rule 17 of Code of Civil Procedure, the view being suggested by the learned Counsel for the defendants would not be a correct view in law and would, unjustifiably, enlarge the scope of the expression "commencement of trial" to include what actually is a pre-trial stage or a stage preparatory to commencement of trial. Therefore, I am of the view that the trial in a case where evidence is to be recorded on affidavits does not commence before filing of one or more affidavits by way of evidence.

CS(OS)No. 800/2006 Page 12 of 13

14. Since the affidavits by way of evidence are yet to be filed, I am of the view that. The application is not hit by the proviso to Order 6 Rule 17 of Code of Civil Procedure.

The application is allowed subject to payment of Rs.25,000/- as costs.

CS(OS) No. 800/2006

Amended plaint be filed within two weeks. Written Statement to the amended plaint be filed within four weeks of getting the copy of the amended plaint. Additional documents, if any, can be filed within six weeks.

The case be listed before the Joint Registrar for admission/denial of the additional documents, if any, on 24th October, 2011 and before the Court for framing of additional issues, if any, on 6th March, 2012.

(V.K. JAIN) JUDGE SEPTEMBER 13, 2011 vn CS(OS)No. 800/2006 Page 13 of 13

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