Bombay High Court
Badrinarayan Bansilal Somani vs Vinodkumar K. Shah on 13 August, 2002
Equivalent citations: 2003(3)BOMCR231, 2003(2)MHLJ120
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties. Rule. By consent, rule made returnable forthwith.
2. The petitioner challenges the order dated 19th April, 2002 rejecting the application for amendment of the written statement filed by the petitioner. By way of amending the written statement the petitioner has sought to take additional ground of defence in the suit. The Court below has rejected the application on the ground that the proposed amendment is totally a new case.
3. At the out set the learned Advocate for the respondent referring to the amended Rule 17 of Order VI has submitted that in the absence of the petitioner disclosing sufficient cause for delay in filing the application for amendment to the written statement, there is no case for interference in the impugned order and the petition should be dismissed in limine.
4. By the Code of Civil Procedure (Amendment) Act, 2002, the Rule 17 of Order VI has been amended whereby proviso is added to the original rule and the said proviso reads thus :
"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."
5. Apparently, in terms of the said proviso to rule 17 of Order VI in case the application for amendment is filed after commencement of the trial, the applicant has to disclose the facts which will reveal that in spite of due diligence on his part he could not plead the matter, which he is seeking to plead by way of amendment, prior to the commencement of trial. Undisputedly, in the case in hand, the application for amendment was filed by the petitioner at the fag end of the trial. Admittedly, the petitioner has not disclosed any fact in the said application which will reveal the exercise of due diligence on the part of the petitioner in matter of inclusion of the pleadings proposed by way of the amendment, prior to the commencement of the trial.
6. The learned Advocate for the petitioner, however, drawing attention to Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 and has submitted that the applicability of the proviso to Rule 17, Order VI to the pending cases has been specifically excluded by Section 16(2)(b) of the said Amendment Act, 2002. Section 16 of the Amendment Act speaks of repeal and savings. Sub-section (1) thereof provides that:--
"Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed."
Sub-section (2) of Section 16 read thus :--
"Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897),
(a) .............
(b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;
(c)................
7. Apparently, in terms of Clause (b) of Section 16(2), the applicability of Proviso to Rule 17 of Order VI inserted by the Amendment Act, to the pleadings which were filed prior to 1st July, 2002, the day on which the Amendment Act, 2002 came into force, is excluded. The learned Advocate for the respondent, however, placing reliance on the decision of the Apex Court in the matter of Anant Gopal Sheorey v. The State of Bombay submitted that the ruling of the Apex Court in relation to Section 116 of the Criminal Procedure Code (Amendment) Act (26 of 1955) which is almost in pari materia with the provisions of Clause (b) of Section 2, clearly supports the view of the respondent that the said proviso would apply even to the pleadings which were filed prior to 1st July, 2002.
8. Proper reading of the decision of the Apex Court in Anant Gopal Sheorey's case (supra) would disclose that the contention on behalf of the respondent is totally devoid of substance. Section 116(b) of the said Criminal Procedure (Amendment) Act provides that,:
"(b) the provisions of Section 406 or Section 408 or Section 409 of the principal Act as amended by this Act shall not apply to, or affect, any appeal which, on the date of such commencement, is pending before the District Magistrate or any Magistrate of the First class empowered by the State Government to hear such appeal, and every such appeal shall, notwithstanding the repeal of the first proviso to Section 406 or of Section 407 of the principal Act, be heard and disposed of as if this Act had not been passed."
Clause (c) of Section 116 provides that,:
"the provisions of Clause (w) of Section 4 or Section 207A, Section 251A or Section 260 of the principal Act as amended by this Act shall not apply to, or affect, any inquiry or trial before a Magistrate in which the Magistrate has begun to record evidence prior to the date of such commencement and which is pending on that date, and every such inquiry or trial shall be continued and disposed of as if this Act had not been passed."
9. The Apex Court considering the scope of Section 116 of the Code of Criminal Procedure (Amendment) Act as well as the arguments advanced on behalf of the parties ruled thus :
"It was contended on behalf of the respondent that the following words in Clause (c) of Section 116 of the amending Act "and every such enquiry or trial shall be continued and disposed of as if this Act had not been passed" mean that no provision of the Act would be applicable to pending trials and particular stress was laid on the words "as if this Act had not been passed". If that is the interpretation to be put then it would be in conflict with the last portion of the section i.e. "Save as aforesaid the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement". The language used in this portion of the section in regard to the proceedings which are instituted after the commencement of the amended Code is identical with that dealing with proceedings pending in a Criminal Court on the date of its commencement. Therefore if this Act applies to all proceedings which commenced after the Act came into force they would equally apply to proceedings which had already commenced except those provisions which have been expressly excluded."
The decision clearly supports the contention put forth by the petitioner. It also discloses that the proviso to Rule 17 of order VI would not apply to the pleadings which were filed prior to 1st July, 2002. Hence, the preliminary objection sought to be raised on behalf of the respondent is to be rejected.
10. Coming to the merits of the case, undisputedly, the application for amendment was rejected solely on the ground that it amounts to inclusion of a new ground of defence on behalf of the petitioner/defendant. Perusal of the proposed pleadings which were sought to be included in the written statement by the application filed by the petitioner which has been dismissed by the impugned order, apparently discloses that the contents thereof relate to the matter in controversy. It is now well settled that parties are not prohibited from amending the pleadings by including a new ground of defence and any decision on the point if required one can certainly rely upon the decision of the Apex Court in the matter of Estralla Rubber v. Dass Estate (P) Ltd. . Therein after taking into consideration of various decisions of the Apex Court and while confirming one of its earlier decision in the matter of A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation , it was observed that, the principles applicable to the amendment of the plaint are equally applicable to the amendment of the written statement and that the courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event, and further the defendant has a right to take alternative plea in defence. The Apex Court also quoted the extract from A.K. Gupta's case (supra), which read thus :
"The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred : Weldon v. Neal. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation : See Charan Das v. Amir Khan and L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., ."
11. Once it is apparent that the proposed amendment amounts to additional approach to the same case pleaded by the petitioner in written statement, the impugned order rejecting such amendment to the written statement cannot be held to be the proper exercise of the jurisdiction of the Court below. Apparently, the Court has failed to exercise its jurisdiction properly and the same warrants interference in the revisional jurisdiction, as the impugned order if allowed to remain on record would result in failure of justice.
12. In the result, the petition is allowed. The impugned order is set aside.
The application filed by the petitioner for amendment to the written statement is allowed. The Court below is directed to take further appropriate steps in the matter which are required to be taken pursuant to the amendment being allowed and pass an appropriate order in that regard. Rule is made absolute in above terms with no order as to costs.