Punjab-Haryana High Court
Jagjit Singh vs Jasmer Singh And Ors on 5 May, 2023
Page 1 of 16
CR 6484/2017
2023:PHHC:064632
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR 6484/2017
Date of decision: 05.05.2023.
Jagjit Singh
..................Petitioner.
Vs.
Jasmer Singh and others
.....................Respondents
CORAM HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Akash Kumar Goel, Advocate for the petitioner.
Mr. Atul Jain, Advocate for respondents 6 and 7.
Nidhi Gupta, J.
Present revision petition has been filed by the plaintiff seeking setting aside of order dated 13.7.2017 passed by Civil Judge (Junior Division), Rajpura whereby the application filed by the defendants no.6 and 7/ respondents no.6 and 7 herein, under Order 6 Rule 17, Code of Civil Procedure,1908 (hereinafter referred to as CPC) read with Section 151 CPC, for amendment of their written statement, has been allowed.
Brief facts involved in the present revision petition are that the petitioner/ plaintiff had filed the instant suit (Annexure P-1), for separate possession by way partition; and for declaration to the effect that the sale deed dated 30.7.1997 in favour of defendants no. 6 to 8/ respondents no. 6 to 8 herein, is wrong, illegal and nullity qua the rights of the plaintiff.
Upon notice, the contesting defendants no. 6 and 7/respondents no.6 and 7 herein appeared and filed their joint written RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 2 of 16 CR 6484/2017 2023:PHHC:064632 statement on 18.2.2014 (Annexure P-2) to the civil suit filed by the petitioner. Thereafter, the ld. Trial Court framed the issues on 3.11.2014 and the petitioner concluded his entire evidence by January 2017; and defendant evidence commenced.
However, thereafter, on 03.07.2017 defendants no. 6 & 7 filed present application U/O 6 Rule 17 r/w Section 151 CPC seeking to amend the written statement filed by them on 18.2.2014. Vide the proposed amendment, the Defendants no. 6 & 7 sought to add preliminary objections no. 6 to 9 after the preliminary objections no. 1 to 5 taken in the earlier written statement, and further sought addition of a full para in para 5 and para 8 of the 'Reply on Merits' in the written statement dated 18.02.2014.
On 12.07.2017, the petitioner/ plaintiff filed the reply to the application, and the case was adjourned to 13.07.2017 for consideration on the application and for defendants' evidence.
On 13.07.2017, the application U/O 6 Rule 17 r/w Section 151 CPC filed by defendant nos. 6 & 7 was allowed. Hence, present Revision Petition.
It is submitted by ld. Counsel for the petitioner that the case was at the stage of defendants' evidence when the instant application (Annexure P-3) was filed by respondents 6 and 7 herein for amendment of their written statement (Annexure P-2).
It is submitted that the ld. Trial Court framed the issues on 3.11.2014 and the petitioner concluded his entire evidence by January 2017. Thereafter, the defendants examined DW2-Sachidanand on 10.04.2017, and DW1-Bal Krishan on 17.04.2017, and the case was posted for 28.04.2017 for the remaining evidence of the defendants. On 28.04.2017, defendants no. RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 3 of 16 CR 6484/2017
2023:PHHC:064632 6 & 7 engaged another lawyer namely Sh. Amit Jain who filed power of attorney on their behalf. On that day, DW4-Satnam Singh tendered his affidavit in his examination-in-chief and his cross-examination was deferred, and the case was adjourned to 01.05.2017. Case was further adjourned to 08.05.2017. On 08.05.2017, DW3-Sanjay Singh and DW4-Satnam Singh were examined. DW-5 Hardial Singh tendered his affidavit in his examination-in-chief and his cross-examination was deferred and the case was posted for 15.05.2017. On 15.05.2017, the case was posted for 18.05.2017 and from 18.05.2017 to 22.05.2017 and from 22.05.2017 to 03.07.2017.
It is submitted by the ld. counsel for the petitioner that therefore, in the present case the trial had already commenced and, after commencement of trial, ld. Trial Court could not have allowed the amendment application filed by respondents no. 6 and 7 as it was not maintainable. It is submitted that perusal of the application (Annexure P-3) filed by respondents under Order 6 Rule 17 CPC shows that even the grounds taken by the said respondents are spurious and flimsy. It is contended that the ld. Trial Court has failed to appreciate that even no due diligence has been exercised by the respondents no. 6 and 7 as required under law. It is submitted that perusal of the record shows that none of the pleas as taken by respondents no. 6 and 7 in the present application have been taken by the respondents in their written statement (Annexure P-2) and therefore, the respondents are only seeking to improve their case and the same cannot be permitted under the law. In support, ld. Counsel for the petitioner relies upon judgments of the Hon'ble Supreme Court in J. Samuel v. Gattu Mahesh (SC) Law Finder Doc Id # 335241; Pandit Malhari RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 4 of 16 CR 6484/2017 2023:PHHC:064632 Mahale v. Monika Pandit Mahale & ors., (SC): Law Finder Doc Id # 1691426; and Vidyabai & Ors. v. Padmalatha & Anr., (SC) : Law Finder Doc Id # 179211.
On merits it is submitted by ld. Counsel for the petitioner that, vide the disputed sale deed dated 30.7.1997 Achhru Dev had sold excessive area as he had no authority to execute the sale deed and therefore, mutation on the basis of the sale deed dated 30.7.1997 could not be sanctioned. It is submitted by the ld. counsel for the petitioner/plaintiff that it is evident from the record that Jasmer Singh/defendant no.1 was owner of a total of only 150 square yards of land, which he had further sold to defendants 2 to 5 vide two separate sale deeds dated 19.8.1996. It is submitted that accordingly, there was no land left with the said Jasmer Singh and therefore, 45 square yards of land sold by Achhru Dev - Power of Attorney holder of said Jasmer Singh - vide disputed sale deed dated 30.7.1997 to defendants 6 and 7, was illegal and a nullity qua the right of the plaintiff and liable to be set aside. It is submitted that however, ld. Trial Court has not considered any of the abovesaid factors and has merely allowed the application by way of a non-speaking order.
In response, it is submitted by the ld. counsel for the respondents no. 6 and 7 that by way of present amendment respondents had only sought to elaborate the pleas earlier taken by them in their written statement (Annexure P-2). It is submitted that the present amendment is necessary for proper adjudication of the matter and effectively deciding the controversy between the parties. It is submitted that no prejudice would be caused to the petitioner by way of present amendment. It is further submitted that in any event, Courts are not required to go into the merits of RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 5 of 16 CR 6484/2017 2023:PHHC:064632 the amendment. In support, ld. counsel for respondents relies upon judgment of Hon'ble Supreme Court in Rajesh Kumar Aggarwal & Ors. V KK Modi and others, Law Finder Doc Id # 120400; and decision of this Court in Mani Raj v Firm Radha Krishan Siri Niwas, Law Finder Doc Id # 1824 to submit that it is mandatory upon Courts to allow all amendments which are necessary for the purpose of determining the real question of controversy between the parties.
No other argument has been raised.
Heard ld. counsel for the parties.
I have given my thoughtful consideration to the rival submissions advanced on behalf of both the parties.
Few facts in chronological order, for proper appreciation of the dispute at hand, are as under:-
24.2.1993 - Plaintiff sold (125 Sq. Yds.) to Jaswant Singh/Defendant No. 10; 5.3.1993 - Plaintiff sold (123 Sq. Yds.) to Parkash Chand/ Defendant No. 9;
5.4.1995 - Plaintiff sold (100 Sq. Yds./ i.e. 50 sq. yds each) to Jasmer Singh (Defendant No.1), and Varinder Kumar (Not a party in the suit);
20.6.1995 - Jasmer Singh executed POA in favour of Achharu Dev (defendant No. 8) (since deceased) LRs here;
30.5.1996- Plaintiff sold (another 100 Sq. Yards.) to Jasmer Singh (Defendant No. 1);
19.8.1996 - Jasmer Singh (Def. No. 1) sold (75 Sq. Yds.) to Hardial Singh and Ranjit Singh (Defendants No. 4 and 5);
19.8.1996 - Jasmer Singh (Def. No. 1) sold (75 Sq. Yds.) to Bal Krishan and Ram Kali (Defendants No. 2 and 3);
30.7.1997 - Achharu Dev sold 45 Sq. Yards. To Raman Kumar and Vinay Kumar (sons of Achharu Dev) (Defendant Nos. 6 and 7) for a consideration of Rs. 31,500/-;
17.9.2007 - Varinder Kumar sold 50 sq. Yards. To Sanjay Chaudhary (defendant No.11);RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 6 of 16 CR 6484/2017
2023:PHHC:064632 21.02.2013 - Petitioner/Plaintiff (Jagjit Singh) filed suit for possession (Annexure P-1) by way of partition to the extent of 145 Sq. Yds., out of total land measuring 1 Kanal 5 Marlas comprised in Khasra No. 453/3 situated within the revenue estate of Village Rajpura. Further for declaration to the effect that sale-deed dated 30.07.1997 in favour of defendant Nos. 6 and 7 is wrong and illegal and is liable to be set aside and further they be directed to handover possession of portion shown by words LMNOP etc. (Para 4-5/page 16-17 of Annexure P-1) ...... - Defendants No.1, 9 and 10 were proceeded against ex-parte. Defendant Nos. 2 and 3 filed their written statement. Defendant Nos. 4 and 5 filed their separate written statement.
18.02.2014 - Defendants no. 6 and 7 filed their written statement. (Annexure P-2) 03.11.2014 - Petitioner filed Replication to written statement of Defendants No. 6 and 7. Issues were framed.
January 2017 - Plaintiff concluded his entire evidence. The defendants started examining their witnesses.
03.07.2017 - Defendants No. 6 and 7 filed Application under Order 6 Rule 17 r/w Section 151 CPC seeking amendment in written statement dated 18.02.2014 with addition of Preliminary objections No. 6 to 9, and Para Nos. 5 and 8 of Reply on Merits.
12.07.2017 - Petitioner filed reply to the abovesaid application. (Annexure P-4) 13.07.2017 - The Ld. Trial Court allowed the application. 20.9.2017 - Hence, present Revision Petition.
The plea propounded in Para 4 of the instant application filed by the respondents/ defendants no. 6 and 7 for seeking amendment in the written statement is that the earlier counsel had inadvertently failed to elaborate the facts narrated by defendants no. 6 and 7, nor raised the legal objections which were necessary for the just decision of the case.
The proposed preliminary objections sought to be incorporated by way of amendment are that: a) ad-valorem court fees is payable by the plaintiff; b) plea of Order 2 Rule 2 r/w Section 11 CPC; c) suit for partition of land is maintainable before the Court of Tehsildar. RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 7 of 16 CR 6484/2017
2023:PHHC:064632 The proposed addition in paragraph 5 of the Reply on Merits is that defendant no.1 initially executed agreement to sell dated 23.03.1995 in favour of Achhru Dev, and again on 16.06.1995 in favour of same Achhru Dev on receiving full payment from him; and in paragraph 8 that suit is bad for mis-joinder and non-joinder of necessary party and the plaintiff has not claimed the partition of the total land.
Amendment in pleadings is envisaged/ permitted under Order 6 Rule 17 of the Civil Procedure Code (for short 'CPC'), which is reproduced hereinbelow, and stipulates that:-
"The Court may at any stage of the proceedings allow either party to alter or amend his 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 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."
From a reading of the above provision, it is clear that as per proviso to Order 6 Rule 17 CPC, 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. However, in the present case, neither in the application seeking amendment, nor in the impugned order, is there any statement by the applicants/ finding by the ld. Trial Court to the effect that in spite of 'due diligence' the abovesaid pleas could not be raised by the respondents before the commencement of trial. RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 8 of 16 CR 6484/2017
2023:PHHC:064632 A perusal of the impugned order reveals that while allowing the amendment application of the respondents no. 6 and 7, ld. Trial court has merely observed as follows:
"Through the instant application, defendant no.6 and 7 have sought for amending the written statement on the ground that the earlier counsel has inadvertently not elaborated the facts as told by defendant no.6 and 7 nor taken legal objections and as such some facts could not be pleaded in the written statement. After considering the submissions of the learned counsel for the parties, this court is of the considered opinion that the proposed amendment is very much required to be allowed to adjudicate the controversy in the present case effectively and to reach the just conclusion of the case. Moreover, the proposed amendment shall not cause any prejudice to the other party and shall not change the nature of the suit in any manner. Accordingly, the instant application is allowed and defendant no.6 and 7 are permitted to amend their written statement to the extent of the present application, subject to payment of cost of Rs.2000/- to be deposited in free legal aid fund, for causing delay in this old case. Application stands disposed off".
In my view, as per the Proviso above, it is incumbent upon the ld. Trial Court to return a categoric finding that "inspite of due diligence, the party could not have raised the matter before the commencement of trial." In the present case, it is clear from a reading of the above excerpt of the impugned order, that no such finding has been given by the ld. Trial Court. In my view, the ld. Trial court was in patent error in not complying with the clear mandate of the provision. RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 9 of 16 CR 6484/2017
2023:PHHC:064632 In holding as above, I rely upon judgment of the Hon'ble Supreme Court cited on behalf of the petitioner in case of Pandit Malhari Mahale (supra), wherein Their Lordships have held as follows:
"7. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ], this Court observed in para 19 as under:
"19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed."
The impugned order is thus, clearly vitiated, and cannot be sustained for this reason.
Furthermore, it is interesting to note that in fact, in the present case, a perusal of the amendment application (Annexure P-3) filed by the respondents no. 6 and 7 reveals that it is the admitted case of the RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 10 of 16 CR 6484/2017 2023:PHHC:064632 respondents no. 6 and 7 that they had prior knowledge of the facts now sought to be incorporated by way of amendment, however, the same could not be incorporated in the written statement as "the earlier counsel has inadvertently not elaborated the facts as told by the defendant no. 6 and 7 in the written statement filed on their behalf nor taken the legal objections which are necessary for the just decision of the present case. It has further been stated in the said application that the mistake on part of the said respondents is bona fide and they are seeking the amendment "in order to clarify and elaborate pleadings, to rectify mistake...". In my considered opinion, the abovesaid reasons cited by the defendants no. 6 and 7 for seeking amendment of their written statement do not constitute a ground/ sufficient cause to permit amendment as per the mandatory provisions of Order 6 Rule 7 CPC. Admittedly, the respondents no. 6 and 7 were very much aware of the correct facts at time of filing written statement. Clearly, they failed to exercise due diligence at time of filing written statement. In my view, as per law, respondents no. 6 and 7 cannot now be permitted to amend their written statement at this belated stage, after 3 ½ years of filing the written statement, without disclosing cogent reasons for doing so.
(emphasis supplied) In this regard I find support from judgment of the Hon'ble Supreme Court in Vidyabai (supra), wherein it has been held that:
"7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:
"Provided that no application for amendment RAJINDER PARSHAD JOSHI shall be allowed after the trial has commenced, unless the 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 11 of 16 CR 6484/2017 2023:PHHC:064632 court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
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.
8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill 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 Civil Procedure Code 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) A perusal of the above judgment shows that the third condition precedent for permitting amendment is that trial should not have begun. Admittedly, this condition too is not complied with in the present case as, in the present case, the issues were framed on 03.11.2014. Therefore, as per the above pronouncement, 3.11.2014 would be 'the first date of hearing'. Thereafter, filing of affidavit in lieu of examination-in- chief by the plaintiff amounts to 'commencement of proceedings'. From the facts noticed hereinabove, it is clear that the plaintiff had concluded his entire evidence and thereafter, since January, 2017 till filing of the application seeking proposed amendment on 03.07.2017, the remaining RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 12 of 16 CR 6484/2017 2023:PHHC:064632 defendants examined four witnesses, and DW-5 namely Hardial Singh (Defendant No.4) tendered his affidavit in examination-in-chief and his cross-examination was deferred and the case was posted for 15.05.2017.
From the above facts it is clear that the trial had well and truly commenced/ was underway in the present case. Thus, Ld. Trial Court has passed the impugned order dated 13.07.2017 wrongly, illegally and against the provisions of Order 6 rule 17 CPC, for, it has no jurisdiction to allow amendments of pleadings after commencement of trial. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia, inserted proviso to Order 6 Rule 17 of the Code. 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. In the present case, the Ld. Trial Court has passed the impugned non- speaking order without consideration of the pleadings and returned no finding as required under Order 6 Rule 17, CPC.
Without going into the merits of the proposed amendments, Defendants no. 6 and 7 had raised preliminary objections and clearly stated in Para 5 of Reply on Merits in their written statement (Annexure P-2) about execution of Power of attorney dated 20.06.1995 in favour of Achhru Dev and execution of sale deed dated 30.07.1997 in their favour by Achhru Dev etc. The plaintiff/ petitioner filed reply to the same, and in Para 7 thereof, the detailed reply has been given against the proposed preliminary Objections and proposed addition in paragraphs 5 and 8 of the reply on merits. In my view, upon a reading of the pleadings in totality, it emerges RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 13 of 16 CR 6484/2017 2023:PHHC:064632 that by way of the proposed amendment the defendants no. 6 and 7 are seeking to raise pleas, which cannot be stated to be necessary for deciding the real issue at hand between the parties. Clearly, the same is an afterthought having no concern with the merits of the matter.
Before parting, reference may be made to another relevant judgment in the case of J. Samuel (supra), wherein the Hon'ble Supreme Court has held as follows:
"12. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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.
13. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term 'Due diligence' is specifically used in the Code so as to provide a test for determining whether to RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 14 of 16 CR 6484/2017 2023:PHHC:064632 exercise the discretion in situations of requested amendment after the commencement of trial.
14. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence"
determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.
15. In the given facts, there is a clear lack of 'due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
16. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6 Rule RAJINDER PARSHAD JOSHI 17 with proviso or on the peculiar facts of that case. This Court in 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 15 of 16 CR 6484/2017 2023:PHHC:064632 various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of others case. It also helps checking the delays in filing the applications. [vide Aniglase Yohannan v. Ramlatha and Others, 2005(4) RCR (Civil) 563 : (2005) 7 SCC 534, Ajendraprasadji N. Pandey and Another v. Swami Keshav prakeshdasji N. and Others, Chander Kanta Bansal v. Rajinder Singh Anand, 2008(2) RCR (Civil) 801 : 2008(3) Recent Apex Judgments (R.A.J.) 83 : (2008) 5 SCC 117, Rajkumar Guraward (dead) through LRS. v. S.K. Sarwagi and Company Private Limited and Another, 2008(4) RCR (Civil) 824 : 2008(6) R.A.J. 248 : (2008) 14 SCC 364, Vidyabai and Others v. Padmalatha and Another, 2009(1) RCR (Civil) 763 : 2009(1) RCR (Rent) 120 : (2009) 2 SCC 409, Man Kaur (dead) By LRS v. Hartar Singh Sangha, 2011(1) RCR (Civil) 189 : 2010(6) R.A.J. 437 : (2010) 10 SCC 512." (Emphasis supplied) It is thus, clear that the ld. Trial Court is in manifest error in allowing the amendment application of respondents no. 6 and 7. As regards, the judgment of Hon'ble Supreme Court in Rajesh Kumar Aggarwal's Case, (2006) 4 SCC 385 being relied upon by the respondents, in my considered view, the same is not applicable as, in that case the pleadings were filed before the enforcement of amended Code of Civil Procedure, 1908.
The Code of Civil Procedure (Amendment) Act, 2002 came into force on 01.07.2002. Section 7 deals with the amendment of Order VI CPC. Section 16 envisages Repeal and Savings. As per the provisions of Clause (b), Sub-section 2 of Section 16, the provisions of Rules 5,15,17 and RAJINDER PARSHAD JOSHI 2023.05.05 10:40 I attest to the accuracy and integrity of this document Page 16 of 16 CR 6484/2017 2023:PHHC:064632 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, and by Section 7 of Act, 2002 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 the Act, 2002. Thus, the said judgment is not applicable in the facts of the present case.
Hon'ble Supreme Court in case of "Revajeetu Builders & Developers Vs. Narayanaswamy & Sons & Others" Civil Appeal No.6921 of 2009, has further cautioned that "The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner".
In my view, it is adequately demonstrated hereinabove, that the respondents' case does not fall within the abovesaid parameters laid down by the provision, and/ or the law laid down by the Hon'ble Supreme Court in this regard. Accordingly, present revision petition is allowed and impugned order dated 13.7.2017 passed by the trial Court is set aside.
Pending application(s), if any, stand disposed of.
05/05/2023 (Nidhi Gupta)
Joshi Judge
Whether speaking/reasoned Yes
Whether reportable Yes/No
RAJINDER PARSHAD JOSHI
2023.05.05 10:40
I attest to the accuracy and
integrity of this document