Delhi District Court
M/S. Nisha Enterprises Works vs M/S. Indu Fashions (India) on 19 January, 2015
Page 1 of 9
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ-01 (SOUTH), SAKET
COURTS, NEW DELHI
Suit No.883/11
Unique Case ID:02406C0324692011
M/s. Nisha Enterprises Works
Through its proprietor
Mohd. Aslam
B-24/3, Street no.4,
Okhla Vihar, P.O. Jamia Nagar,
New Delhi-110025
................... Plaintiff
Vs.
1. M/s. Indu Fashions (India)
B-34, Sector-63, Phase-3,
Noida, Distt. Gautambudh Nagar (UP)
2. Sh. Pritam Singh
Proprietor
M/s. Indu Fashions (India)
B-34, Sector-63, Phase-3,
Noida, Distt. Gautambudh Nagar (UP)
Also at:
H. No. 100, Kailash Hills,
East of Kailash, New Delhi
.................. Defendants
Suit for recovery of Rs.4,41,734/- alongwith pendent-lite and future interest
@ 18% p.a.
ORDER:-
1. Vide this order, I shall dispose of the application of defendant filed on 01.06.2013 U/O.6 R.17 CPC for amendment of Written Statement.
2. It is submitted by defendant in this application that the defendant has changed his counsel and when, during the preparation of cross- examination of plaintiff, the matter was examined in depth, various CS No.883/11 M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr. Page 2 of 9
facts were discovered which shed considerable and further light on the facts in issue. It is further submitted that most of the facts were not specifically pleaded in the Written Statement filed by the defendant and the same was not in correct perspective. It is further submitted that it has come to the knowledge of the counsel for defendant that some paras of the Written Statement has not been specifically denied and further some submissions have not been made which are the basis to defend the present suit. It is further submitted that the proposed amendments do not create any new case of defence but merely elaborate and explain the facts and circumstances and also bring all the available facts which had not been place before the Court.
3. The application has been opposed by the plaintiff by filing reply wherein it is stated that the application has been filed on the basis of wrong facts and is belated also which would change the nature of the defence.
4. I have heard the arguments and perused the record.
5. The plaintiff has filed the present suit for recovery of Rs.4,41,734/-
with interest by stating that he used to do machine embroidery work on the clothes supplied by the defendant and the defendant had issued five cheques for payment of job work done but the same were got dishonoured. In Written Statement filed by the defendant, CS No.883/11 M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr. Page 3 of 9
it was stated that the said cheques were not issued and given for the purpose as claimed. It is submitted by counsel for defendant during the arguments that the defendant wants to amend the WS by bringing on record the fact that the cheques were given to plaintiff by defendant as security only. On perusal of record it is revealed that after filing of the present suit, the appearance was made on behalf of defendant for the first time on 28.02.2012 and he was directed by the Ld. Predecessor Court to supply advance copy of Written Statement within 30 days and matter was adjourned for 01.05.2012 for filing Written Statement on record. But neither he supplied the advance copy nor filed the Written Statement on record on 01.05.2012. In fact nobody appeared from his side on 01.05.2012 till 2:00 p.m. and the defendant was proceeded ex- parte. On the next date of hearing, counsel for defendant appeared and filed Written Statement which was allowed to be taken on record by the Ld. Predecessor Court by setting aside ex-parte order, subject to cost of Rs.3000/-. But he did not pay the cost and vide order dated 13.09.2012, he was again given extended time of 15 days for making payment. But despite grant of extended time, cost was not paid fully. Only part payment of Rs.2000/- was made by him on 28.09.2012 and the balance was paid on 19.10.2012. Vide order dated 27.11.2012, issues were framed and matter was fixed for 15.01.2013 for PE. When PW-1 was examined-in-chief on 06.03.2013, fresh vakalatnama was filed for defendant by the new CS No.883/11 M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr. Page 4 of 9
counsel and cross-examination was deferred at his request for 09.05.2013. But the witness was not cross-examined even on 09.05.2013, rather adjournment was taken by the counsel for defendant on the ground that the Written Statement was lacking a proper reply in its correct perspective. Then the present application was moved on the next date of hearing. Thus, it is apparent from the record that the defendant had been delaying the matter on one or the pretext and present application is also a one step forward in this direction. The counsel for defendant, while relying on judgment of Hon'ble High Court of Delhi titled as Kulvinder Singh Vs. Harvinder Pal Singh & Anr., 192 (2012) DLT 1, has argued that while considering an application filed by defendant seeking amendment of Written Statement, principles to be applied by Court should be much more liberal as compared to principles relating to amendment of plaint. Though, it is settled law that liberal approach should be adopted while dealing with amendment of Written Statement but it is also settled law that the amendment can be allowed only if the conditions precedent, mentioned in the proviso to O.6 R.17 CPC, are met with. By reason of Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to O.6 R.17 CPC, 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 CS No.883/11 M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr. Page 5 of 9
the party could not have raised the matter before the commencement of trial."
Regarding the proviso to O.6 R.17 CPC, it has been held by the Hon'ble Supreme Court of India in Vidyabai & Ors. Vs. Padmalatha & Anr., AIR 2009 SC 1433, "It is couched in a mandatory form. The court's 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."
Thus it is mandatory for the party seeking amendment to satisfy the pre-condition that in spite of due diligence, it could not raise the matter before commencement of the trial. The present application has been moved after the commencement of the trial as the application was moved when issues were already framed and plaintiff/PW-1 examined-in-chief as he had tendered his affidavit of evidence and matter was fixed for his cross-examination. It is held by the Hon'ble Apex Court in Vidyabai & Ors. Vs. Padmalatha & Anr. (Supra) that the trial is deemed to commence when after framing of issues, the witness files an affidavit in lieu of examination-in-chief. Here, in the present case, the witness/plaintiff had not only filed the affidavit of evidence rather tendered the same also and matter was fixed for his cross-examination when the CS No.883/11 M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr. Page 6 of 9
present application for amendment of Written Statement was moved. But despite moving the application after the commencement of trial, neither the plaintiff has pleaded nor satisfied the condition that in spite of due diligence, the matter could not be raised before the commencement of trial. The only ground mentioned is that various facts were discovered when present counsel was preparing for cross-examination of plaintiff which shed considerable and further light on the facts in issue in the present case. It is nowhere pleaded that those facts could not be brought before the Court prior to commencement of trial despite exercise of due diligence on the part of the defendant. It has been held by the Hon'ble Apex Court in Vidyabai & Ors. Vs. Padmalatha & Anr. (Supra) that the proviso appended to O.6 R.17 CPC restricts the power of the Court as it puts an embargo on exercise of its jurisdiction which is limited in a case of this nature. It is further held that that unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment. It is not the case of defendant that the facts which he wants to incorporate by way of amendment, were not within his knowledge prior to commencement of the trial or that he is an illiterate person who signed the Written Statement without knowing its contents. In Vidyabai & Ors. Vs. Padmalatha & Anr. (Supra), the defendants had moved application for amendment of their Written Statement by stating that the materials and information CS No.883/11 M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr. Page 7 of 9
necessary for drafting proper Written Statement was not within their knowledge. But the same was dismissed by the Trial Court by holding that from the facts and circumstances of the case, it could not be said that they were not having knowledge of the same. The Hon'ble Supreme Court upheld the order of the Trial Court and held that the respondents/defendants had not been able to fulfill the pre- condition that in spite of due diligence they could not have raised the matter before the commencement of trial. In the present case also, as held earlier, the defendant has failed to satisfy the above- said pre-condition of proviso to O.6 R.17 CPC and hence not entitled to seek amendment in the Written Statement. Accordingly, the application of the defendant U/O.6 R.17 CPC is dismissed.
(Announced in open
Court on 19.01.2015) (Navita Kumari Bagha)
ADJ-01, South District,
Saket Courts, New Delhi
CS No.883/11
M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr. Page 8 of 9 CS No. 883/2011 Nisha Enterprises Work Vs. Indu Fashons (India) & Anr.
19.01.2015
Present: None for plaintiff.
Proxy counsel Sh. Amar Nath for defendant.
Plaintiff be awaited.
(Navita Kumari Bagha)
ADJ01 (South), New Delhi.
19.01.2015 (Renu)
At 11:35 a.m.
Present: Counsel Sh. Ayyub Ahmed for plaintiff.
Proxy counsel Sh. Amar Nath for defendant.
Arguments heard on defendant's application U/O.6 R.17 CPC.
Put up at 4 p.m. for order.
(Navita Kumari Bagha) ADJ01 (South), New Delhi.
19.01.2015 (Renu)
At 4:00 p.m.
Present: None.
Vide separate order, the application of the defendant U/O. 6 R.17 CPC is dismissed.
Put up on 08.04.2015 for crossexamination of PW1.
(Navita Kumari Bagha) ADJ01 (South), New Delhi.
19.01.2015 (Renu) CS No.883/11 M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr. Page 9 of 9 CS No.883/11 M/s. Nisha Enterprises Work Vs. M/s.Indu Fashions (India) & Anr.