Madhya Pradesh High Court
Manoj Jain vs Smt.Suman Goyal on 22 July, 2014
Equivalent citations: AIRONLINE 2014 MP 19
1 Writ Petition No.2191/2013
(Manoj Jain Vs. Smt. Suman Goyal)
22/07/2014
Shri N.K.Gupta, Senior Advocate assisted by Shri
Ravi Gupta, Advocate for the petitioner.
Shri D.D.Bansal, Advocate for the respondent.
By this petition under Article 227 of the Constitution of India defendant has challenged the legality, validity and propriety of the impugned order dated 13/03/2013 passed in civil suit No.32A/2011 by II Additional District Judge, Guna. By the aforesaid order, plaintiff's applications under Order VI Rule 17 and Order VII Rule 14 (3) CPC have been allowed.
Plaintiff filed a suit for declaration, recovery of possession and mesne profit inter alia contending that the suit land admeasuring 0.230 hectare falling in survey No.20/1 situated in village Chhawani, Patwari Halka No.76, Tahsil & District Guna was purchased by the plaintiff (hereinafter referred to as 'the suit land'). Out of the aforesaid suit land, 0.139 hectare was transferred through various registered sale deeds and, therefore, plaintiff claimed to be owner to the extent of 0.091 hectare and in the map attached with the plaint in respect of the suit land marked in "green colour".
Defendant filed written statement and denied plaint 2 Writ Petition No.2191/2013 (Manoj Jain Vs. Smt. Suman Goyal) allegations. During pedency of the suit, plaintiff filed an application under Order VI Rule 17 CPC for amendment in the plaint and map on 11/09/2012 but the same was withdrawn on 09/01/2103. Thereafter issues were framed and parties were directed to lead evidence. Accordingly, plaintiff submitted affidavits of three witnesses who were cross-examined as well. At that stage, plaintiff again filed an application under Order VI Rule 17 CPC alongwith an application under Order VII Rule 14 (3) CPC. Reply thereto was filed by the defendant. However, the trial Court by the impugned order has allowed the applications. The aforesaid order has been challenged in this petition by the defendant.
Learned counsel for the petitioner has inter alia contended that provisions as regards amendment have undergone change by amendment brought in the Act by the Act of 46 of 1999 w.e.f. 1/7/2002 and are now stringent in nature. The incorporation of such provisions, counsel submits, is in fact with the aim and object to avoid dilatory tactics responsible for unduly delayed trials and ensure speedy trial to subserve the cause of justice. The main trust of submission is on proviso appended to Rule 17, which reads as under:-
3 Writ Petition No.2191/2013(Manoj Jain Vs. Smt. Suman Goyal) "17. Amendment of pleadings.- XXXX 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."
(Emphasis supplied) It is submitted that in a situation where the trial has begun and evidence has been led by a party, amendment at his instance can only be allowed if the jurisdictional facts, as deducible from the proviso, are brought on record and the court comes to the conclusion recording its satisfaction as regards existence thereof and not otherwise. It is contended that; first, a party must plead and prove the facts and circumstances that despite due diligence the matter could not be raised before the commencement of trial; and second, the trial court has to necessarily address upon such facts and circumstances to reach to the conclusion as regards existence thereof before allowing the amendment. The counsel relies on the judgment of Hon'ble Supreme Court in (2012) 11 SCC 341, Abdul Rehman and another vs. Ruldu and 4 Writ Petition No.2191/2013 (Manoj Jain Vs. Smt. Suman Goyal) others, wherein the Hon'ble Supreme Court has held as under:-
"The Courts have to be liberal in accepting same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
(emphasis supplied) It is submitted that there can be no cavil of doubt that in the instant case the application for amendment has been filed after the commencement of trial.
As a matter of fact, words "after the commencement of trial" as incorporated in proviso to Order VI Rule 17 of CPC have received an authoritative interpretation and do not admit any doubt. It has been held that the date on which issues are framed is the date of first hearing. Filing of affidavit in lieu of examination-in- chief of a witness would amount to commencement of proceedings. (Emphasis supplied). For ready reference 5 Writ Petition No.2191/2013 (Manoj Jain Vs. Smt. Suman Goyal) para 8 of Vidyabai and others vs. Padmalatha and another, 2009 (3) MPLJ 122, which reads as under:-
"8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfil the said pre- condition. 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'." (Emphasis supplied). On facts, it is contended that earlier an application for amendment was filed under Order VI Rule 17 of CPC on 11/9/2012. The same was dismissed as not pressed on 9/1/2013 with no liberty to file fresh application. Thereafter, in lieu of examination-in-chief three affidavits under Order XVIII Rule 4 of CPC of plaintiff's witnesses, namely, Chandragupt Goyal, husband of plaintiff as 6 Writ Petition No.2191/2013 (Manoj Jain Vs. Smt. Suman Goyal) power of attorney holder of plaintiff, Anil Bhadoriya and Dhiraj Singh Raghuvanshi were brought on record on 5/7/2012, 18/7/2012 and 1/8/2012 respectively. Thereafter, on 7/2/2013 second application for amendment under Order VI Rule 17 CPC was filed seeking substitution of proposed para 2 for para 2 of the plaint. Alongwith this application another application under Order VII Rule 14 of CPC was filed to bring on record a map different from the one which was filed with the plaint. The aforesaid application, on a bare perusal, does not reflect that the facts sought to be brought on record despite due diligence could not be brought on record in the plaint at the time of filing of the suit or in any case before commencement of trial. That apart, even upon perusal of the proposed amendment, the factual fabric of the suit is sought to be changed with changed dimensions, measurements etc. of the suit land in contents and in the map attached with the suit by introducing new set of facts. Such afterthought amendment based on concocted fabricated facts cannot be permitted to impede the trial and the course of justice at the instance of the plaintiff. The plaintiff while filing the second amendment application did not disclose the fact 7 Writ Petition No.2191/2013 (Manoj Jain Vs. Smt. Suman Goyal) that earlier application under Order VI Rule 17 of CPC was dismissed. No fact and circumstance is stated in the second application which may be based on subsequent events after filing of the suit and dismissal of earlier amendment application. As such, in fact the plaintiff does not deserve indulgence of the court for the reason of suppression of facts and lack of bonafide in moving subsequent amendment application. With the aforesaid submissions, learned counsel submitted that the trial court while passing the impugned order did not address upon the sustainability of the application in the light of proviso to Order VI Rule 17 of CPC and judgments of the Hon'ble Supreme Court in Abdul Rehman and Vidyabai (supra). The trial court, as such, failed to exercise jurisdiction as contemplated in proviso to Order VI Rule 17 CPC and committed patent error of law in that behalf.
The trial court totally unmindful of its statutory obligations, as referred above, has passed the impugned order allowing amendment, which tantamounts to improper exercise of discretionary power, as the order impugned is totally evasive in nature and intended only to allow the amendment asked for irrespective of its sustainability and relevancy. Trial court also allowed an 8 Writ Petition No.2191/2013 (Manoj Jain Vs. Smt. Suman Goyal) application under Order VII Rule 14 of CPC by which the amended map was brought on record, as a consequence of allowing the amendment. Learned counsel, therefore, prayed that the impugned order deserves to be set aside.
On the other hand, counsel for respondent supported the order impugned and submitted that by allowing the amendment the trial court has not committed any error much less jurisdictional error, as nature of suit is not changed. Amendment is only consequential in nature. Mere change of dimension and area of the suit land as well as change of map shall not prejudice the defendant.
Having heard learned counsel for the parties, this court is of the view that this writ petition deserves to be allowed for more than one reason. Admittedly, by the proposed amendment through second application under Order VI Rule 17 of CPC, the entire para 2 of the existing plaint is sought to be deleted and new para 2 to be substituted, wherein description of length, width and dimensions are changed. The map sought to be produced under Order VII Rule 14 of CPC is materially different from the map attached to the plaint. Such amendments are sought to be brought on record at the 9 Writ Petition No.2191/2013 (Manoj Jain Vs. Smt. Suman Goyal) stage when issues have been framed. Plaintiff has already filed affidavits under Order XVIII Rule 4 CPC of her three witnesses in lieu of examination-in-chief. There is no disclosure of the fact as to why the averments as proposed in new para 2 could not be brought on record either at the time of presentation of suit or later on before the trial began. There is also no disclosure as regards dismissal of earlier application under Order VI Rule 17 of CPC by the trial court on 9/1/2013. These aspects assume importance and need to be addressed while the court exercises its jurisdiction under Order VI Rule 17 of CPC in the light of the proviso appended to Order VI Rule 17 of CPC by the amendment Act in 2002. The proposed amendments definitely are sought to be brought on record after the commencement of trial. As such, the trial court was obliged to address upon jurisdictional facts as contemplated in proviso to Order VI Rule 17 of CPC. That has not been done.
In the light of the foregoing discussions, it is considered apposite to state that in a given situation of facts where trial has commenced and an application under Order VI Rule 17 of CPC is filed by a party seeking amendment in the pleadings, the trial court must address 10 Writ Petition No.2191/2013 (Manoj Jain Vs. Smt. Suman Goyal) upon the issue as regards existence of jurisdictional facts as embodied in proviso to Order VI Rule 17 of CPC and only after recording its satisfaction trial court shall move further to decide the application on merits.
Neither such facts are stated in the application nor have been addressed upon by the trial court. Hence, the contentions advanced by the learned counsel for petitioner have force of law and, therefore, are sustained. Accordingly, writ petition is allowed. The impugned Order of the Trial Court is set aside.
(Rohit Arya) Judge Arun*