Gujarat High Court
Shaileshkumar Nathalal Modh & 8 vs Chaudhary Takahatben Kesharbhai on 17 October, 2014
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/2345/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2345 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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SHAILESHKUMAR NATHALAL MODH & 8....Petitioner(s)
Versus
CHAUDHARY TAKAHATBEN KESHARBHAI....Respondent(s)
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Appearance:
MR SN SOPARKAR SR.ADV. FOR MS ARCHANA R ACHARYA, ADVOCATE
for the Petitioner(s) No. 1 - 9
MR N P CHAUDHARY, ADVOCATE for the Respondent(s) No. 1
MR SHALIN MEHTA SR.ADV. FOR MR TUSHAR CHAUDHARY, ADVOCATE
for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 17/10/2014
Page 1 of 19
C/SCA/2345/2012 CAV JUDGMENT
CAV JUDGMENT
1. The present petition is directed against the order dated 06.02.2012 passed by the learned Principal Senior Civil Judge, Palanpur on an application under Order 6 Rule 17 of the Code of Civil Procedure (for short, the 'Code') filed below Exh.106 in Special Civil Suit No.5 of 2008 by the petitioners - original plaintiffs (hereinafter referred to as the 'plaintiffs') for amendment of their plaint.
2. With a view to properly understand and appreciate controversy involved in this petition, case set-up by the parties, out of which this petition has arisen and on which, learned Senior Counsel for the parties were not at variance at the time of hearing, needs to be briefly noted. The facts are as under:-
2.1. The plaintiffs filed Special Civil Suit No.5 of 2008 in the Court of learned Principal Senior Civil Judge, Palanpur against the respondent - defendant in the month of April, 2008 for specific performance of Agreement to Sale dated 09.04.2007 executed by the respondent - defendant in favour of plaintiff No.1 in respect of the land bearing Survey No.273 situated at village: Mahi, Taluka: Vadgam, District: Banaskantha. In the said suit, the plaintiffs had prayed to direct the respondent -
defendant to accept Rs.31,45,441/- towards sale consideration of the suit land and to execute sale deed in favour of the plaintiffs and also to hand over possession of the suit land to them. In the alternative, the plaintiffs had prayed to direct the respondent - defendant to pay an amount of Rs.93,27,240/-
Page 2 of 19 C/SCA/2345/2012 CAV JUDGMENTtowards damages/loss along with running interest at the rate of 18%. It is relevant and important to note here that right from the beginning, it is the specific case of the plaintiffs that value of the suit land was to be calculated for Rs.16 per sq.ft. as agreed in the Agreement to Sale dated 09.04.2007. Whereas, it is the case of the respondent - defendant in the written statement filed on 18.09.2008 that as per said Agreement to Sale dated 09.04.2007, value of the suit land was to be calculated at Rs.36 per sq.ft. The parties are not at variance at the time of hearing that application below Exh.106 filed on 02.09.2011 i.e. at the stage when the evidence of defendant's witness No.2 was concluded.
2.2. The learned trial Judge, by means of impugned order, has dismissed application Exh.106 mainly relying upon the proviso to Order 6 Rule 17 of the Code, application is filed at belated stage, proposed amendment would destroy the defence.
2.3. What is stated in the application Exh.106 seeking amendment of the plaint is being extracted hereinbelow for ready reference:-
"18(1)(a). In the alternative, if the Hon'ble Court comes to the conclusion that the defendant had executed agreement to sale for Rs.36/- (Rupees Thirty Six only) per sq.ft., in that circumstances, the defendant may be directed to execute registered sale deed of the suit property in favour of the plaintiffs by accepting Rs.93,27,240/- from the plaintiffs being the amount calculated as per Rs.36/- per sq.ft. and to hand over the possession of the suit land to the plaintiffs."
3. Learned Senior Counsel Mr.S.N. Soprakar appearing for Page 3 of 19 C/SCA/2345/2012 CAV JUDGMENT learned advocate Ms.Archna Acharya for the plaintiffs submitted that the trial court has fallen into an error in dismissing an application for amendment of plaint. According to him, it was necessary to be carried out with a view to set at rest the controversy between the parties whether the suit land was to be sold at the rate of Rs.16/- per sq.ft. or at Rs.36/- per sq.ft. and also necessary to settle the dispute between the parties for all the times to come. While advancing the case of the plaintiffs, further, learned Senior Counsel Mr.Soparkar urged that rules of procedure are meant to advance the cause of justice and not to thwart it, after referring to the case-laws cited by him on the point and as more precisely laid-down in the cases of;
(i) Ramchandra Sakharam Mahajan V/s. Damodar Trimbak Tanksale (D) and others with Ramchandra V/s. Rajendra Shrikrishna Deshmukh and others reported in AIR 2007 SC 2577.
11. The question, therefore, is whether the plaintiff had established his title to the suit property. The plaintiff, though somewhat belatedly, attempted to amend the plaint to make his claim more precise so as to enable the Court to adjudicate upon it more satisfactorily. We see force in the contention of learned senior counsel for the appellant that the trial Court ought to have allowed the amendment so as to enable it to decide the dispute in a more satisfactory manner. The appellate Court, it appears to us, was also not justified in harping upon the so-called absence of bona fides on the part of the plaintiff in approaching the Court. What was called for, was an independent appraisal of the various documents produced by the plaintiff in the light of the pleadings and the oral evidence available, to come to a conclusion whether the plaintiff had established his title or not. In that context, the appellate Court ought to have seen that the trial Court was in error in refusing the amendment of the plaint which would have enabled the Court to render a decision in a more satisfactory Page 4 of 19 C/SCA/2345/2012 CAV JUDGMENT manner.
12. Similarly, when there is an ancient document of 1875 that is being relied upon in support of the claim of the plaintiff, the appellate Court ought to have granted an opportunity to the plaintiff to prove that document or to lay the foundation for adducing secondary evidence for its acceptance in evidence by production of a certified copy of the lease deed. By refusing to look into the document of title relied upon by the plaintiff on the ground that no foundation has been laid for adducing secondary evidence by production of a certified copy of the lease deed, the trial Court and the appellate Court have adopted a course that has resulted in injustice to the parties. The trial Court ought to have, in the circumstances, called for evidence regarding the availability of the original of the 1875 lease deed and given the plaintiff an opportunity to lay the foundation for accepting in evidence a certified copy of that document. After all, the whole case depends upon whether the suit property is included in the 1875 lease deed and if it is included, whether the plaintiff could get a decree for recovery of possession of the portion in the possession of defendants 1 to 9.
(ii) Surendra Kumar Sharma V/s. Makhan Singh reported in 2009 SAR (Civil) 967;
7. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse Page 5 of 19 C/SCA/2345/2012 CAV JUDGMENT amendment. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. [See B.K.N. Pillai v. P. Pillai and another [AIR 2000 SC 614 at Page 616]. Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
(iii) Abdul Rehman and another V/s. Mohd. Ruldu and others reported in 2012(9) SCALE 582.
6) Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:-
17. Amendment of pleadings. 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.
7) It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of Page 6 of 19 C/SCA/2345/2012 CAV JUDGMENT 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.
(iv) Schencr Process India Ltd. V/s. Videocon Industries Ltd.
reported in 2012(2) GLH 447.
"(A). Civil Laws - Code of Civil Procedure, 1908 - 0.6, R.17 - Limitation Act, 1963 - Art. 137 - Principles governing amendment of pleadings discussed -
Amendment can be allowed at any stage - Provisions of Art. 137 of Limitation Act do not apply - Amendment to be allowed to decide real question in controversy and to avoid multiply of proceedings, if it does not alter basic structure of suit or prejudice interest of other side - Question of limitation and other questions on merits not to be decided at stage of amendment, unless proposed amendment is ex-facie time-barred - Pre-trial amendments to be allowed more liberally."
4. Per contra, learned Senior Counsel Mr.Shalin Mehta appearing for learned advocate Mr.Tushar Chaudhary for the respondent - defendant controverted all the pleas and submissions made by learned Senior Counsel Mr.Soparkar. It is vehemently submitted that the plaintiffs have not whispered word 'in spite of due diligence' and they could not raise the matter of proposed amendment before commencement of trial. It is submitted at bar that prior to filing of the suit, it was the consistent case of the respondent - defendant that she has agreed to sale the suit land for Rs.36/- per sq.ft. and not at the rate of Rs.16/- per sq.ft. It is not the case of the plaintiffs that sale agreement in question to the extent of rate is forged or tempered with. In other words, it is the case of the plaintiffs that the suit land was agreed to be sold by the defendant at Rs.16/- per sq.ft. Whereas, it is the case of the defendant that Page 7 of 19 C/SCA/2345/2012 CAV JUDGMENT the rate was fixed at Rs.36/- per sq.ft. and both the parties placed reliance upon the same sale agreement. It is further contended that it is the consistent case of the defendant that even prior to filing of the suit, the suit land was agreed to be sold at the rate of Rs.36/- per sq.ft. Such consistent stand is also reflecting in the written statement filed in the year 2008 itself. The relevant issue in this regard is also framed in the month of July, 2010 below Exh.63 and on the top of it, the plaintiffs have, in the alternative, prayed to grant damages at the rate of Rs.36 per sq.ft. if, the plaintiffs ultimately fail to prove their case as asserted in the plaint. Lastly, it is submitted that the plaintiffs are absolutely silent that they could not have discovered the said ground which was pleaded by the proposed amendment in spite of due diligence. In support of his submissions, learned Senior Counsel Mr.Shalin Mehta pressed into service the following decisions:-
(i) Rajkumar Gurawara (Dead) Thr.LRs. V/s. M/s.S.K. Sarwagi & Co.Pvt. Ltd. reported in AIR 2008 SC 2303;
5. Originally, the appellant/plaintiff filed the suit for declaration of his exclusive right to do mining operation in the suit property.
However, after impleadment of M/s. S. K. Sarwagi and Company as second defendant (first respondent herein) after closing of the evidence and during the course of argument the plaintiff filed an application under Order VI Rule 17 read with 151 CPC for amendment of the plaint praying for possession over the plaint schedule mentioned property from the defendants and for grant of damages of Rs. 5.00 lacs in favour of the plaintiff for their mining operations without consent of the plaintiff in the plaint schedule property.
Though the learned Additional District Judge allowed the application for amendment on payment of cost of Rs. 300/-the High Court in a civil revision filed Page 8 of 19 C/SCA/2345/2012 CAV JUDGMENT under Article 227 of the Constitution of India set aside the same and dismissed the application for amendment which is the subject matter in this appeal.
In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under :-
"17. Amendment of pleadings.- 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."
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein.
The said rule with proviso again substituted by Act 22 of 2002 with effect from 1-7-2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the Court satisfies their explanation, amendment can be allowed even after commencement of the trial.To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made.
Pre-trial amendments are to be allowed liberally Page 9 of 19 C/SCA/2345/2012 CAV JUDGMENT than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event; it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.
(ii) Vidyabai V/s. Padmalatha reported in AIR 2009 SC 1433, more particularly, para 15 thereof, which reads as under:-
15. We may notice that in Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. and Others [(2006) 12 SCC 1], this Court noticed the decision of this Court in Kailash (supra) to hold:
"35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.
36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration."
This Court also noticed Salem Advocate Bar Assn. v. Union of India ((2005) 6 SCC 344) to hold :
"41. We have carefully considered the submissions made by the respective Senior Counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders Page 10 of 19 C/SCA/2345/2012 CAV JUDGMENT passed by the courts below, the High Court and of this Court, In the counter-affidavit filed by Respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our, opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings.
42. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002.
43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief."
The ratio in Kailash (supra) was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
5. For ready reference, Order 6 Rule 17 of the Code, both Page 11 of 19 C/SCA/2345/2012 CAV JUDGMENT unamended or amended respectively, are reproduced hereinunder:-
Before Amendment:
"17. Amendment of pleadings. 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 question in controversy between the parties."
After Amendment:
"17. Amendment of pleadings. The Court 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."
6. Comparative study of the above provisions makes it clear that after the amendment of Rule 17 of Order 6 of the Code, no application for amendment is to be allowed after trial has commenced unless the Court comes to the conclusion that in spite of due diligence, parties could not raise the matter before commencement of trial. In other words, proviso to Order 6 Rule 17 of the Code put an embargo on the exercise of jurisdiction by the Court unless the jurisdiction fact, as envisaged in proviso, is found to be existing.
7. I have heard submissions of learned Senior Counsel Page 12 of 19 C/SCA/2345/2012 CAV JUDGMENT Mr.S.N. Soprakar appearing for learned advocate Ms.Archna Acharya for the plaintiffs and learned Senior Counsel Mr.Shalin Mehta appearing for learned advocate Mr.Tushar Chaudhary for the respondent - defendant at length, examined the pleadings, relevant stages of hearing of the suit and also principles settled in the case-laws cited at bar as well as the impugned order under challenge.
8. With a view to first ensure whether the plaintiffs had exercised due diligence so as to enable the Court to examine their application for amendment or not, it requires to be noted that unfortunately, the amendment application is absolutely silent on this issue. The reason given is that if the proposed amendment is allowed, it would not change the structure of the suit, nor further evidence would require to be led and without effecting change in existing pleadings, more particularly, without effecting change in the body of the plaint, the plaintiffs have prayed to add proposed relief by way of alternate prayer in terms of para 18(1)(A). It is an admitted fact that the plaintiffs, prior to filing of the suit and pending suit, were well aware of the consistent case of the defendant that the defendant has agreed to sale the suit land as per Agreement to Sale dated 09.04.2007 for Rs.36 per sq.ft., therefore, amendment of nature, as sought for, is not to be allowed at the askance of a party and as a matter of course. The Legislature in its wisdom and with a view to curb menace of the litigation being prolonged felt necessity to circumvent same. And with a view to achieve this object, amended C.P.C. vide Code of Civil Procedure (Amendment) Act, 2002 adding proviso to Order 6 Rule 17 of the Code.
Page 13 of 19 C/SCA/2345/2012 CAV JUDGMENT9. On bare perusal of this proviso, it is evident that ordinarily amendment of pleadings is not to be allowed after the trial has commenced, unless of course, the Court was satisfied that the party concerned could not apply after exercise of due diligence for such amendment before commencement of trial. Admittedly, in the case on hand, trial had commenced and matter reached at the stage of recording further evidence of the defendant when application Exh.106 for amendment was filed. Rather it was filed at the stage of defendant's evidence. Under these circumstances, again, when a reference is made as to what is set out in the application seeking amendment, material averments is extracted hereinabove. It is evident that there is no whisper or formal use of words "after exercise of due diligence". As such, usage of such words in the application is not enough to enable the Court to consider the application in light of amended provisions. But here it is a case where, these words are also not used so as to make out a case that application is covered by proviso of Order 6 Rule 17 of the Code.
10. In the instant case, the application for amendment under Order 6 Rule 17 of the Code was filed on 02.09.2011 i.e. after three and half years of filing of the suit by the plaintiffs for specific performance of contract for sale agreement. Section 16(c) of the Specific Relief Act contemplates that the specific averments have to be made in the plaint that the plaintiffs have performed and have always been willing to perform essential terms of the Act which have to be performed by them. This is an essential ingredient of Section 16(c) and the Form 47, Appendix 'A' prescribes for the due performance. In other words, in absence of such averment that the plaintiffs Page 14 of 19 C/SCA/2345/2012 CAV JUDGMENT are always ready and willing to perform part of their contract, decree for specific performance cannot be granted by the Court. On proper interpretation of proviso of Rule 17 of Order 6, party has to satisfy the Court that he could not have discovered that ground which was pleaded by the amendment in spite of due diligence. No doubt, Rule 17 confers power on the Court to permit amendment at any stage of the proceedings. However, proviso restricts that power once the trial has commenced.
11. The Court's discretion to grant permission for amendment of pleadings lies on two conditions that; no injustice must be done to the other side and 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, proviso has been added which clearly states that no 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 application before the Court has commenced the trial.
12. The term 'due diligence' is the idea that reasonable investigation is necessary before certain kinds of reliefs are requested. The term 'due diligence' is specifically used in the proviso to provide a test for determining whether to exercise the discretion in situations of requested amendment after commencement of trial. In other words, the said terms determines the scope of partie's constructive knowledge, claim and is very critical to the out come of the suit. Thus, party requesting a relief requires to be exercised due diligence and it Page 15 of 19 C/SCA/2345/2012 CAV JUDGMENT is a requirement which can never be dispensed with.
13. Even if the Court thinks to go liberally in favour of the plaintiffs, the plaintiffs must satisfy the Court that in spite of due diligence, they could not raise the issue before commencement of trial and if the Court satisfies with explanation, amendment can be allowed even after commencement of trial. Learned Senior Counsel Mr.Soparkar could not place any explanation as to why rate of suit land at Rs.36/- per sq.ft., as contended by the defendant, given go-by though, the defendant disclosed prior to filing of suit and at various stages during pendency of the suit including oral evidence of the plaintiffs.
14. With this background, if the application Exh.106 filed by the plaintiffs and order passed by the learned trial Judge are considered, the defendant has consistently and contineously pleaded her case that the suit land has been agreed to be sold at the rate of Rs.36/- per sq.ft. However, no facts are pleaded nor any ground raised in the amendment application to contend that despite of exercise of due diligence, the matter could not be raised by the plaintiffs and, therefore, in Court's considered opinion, requirements of Order 6 Rule 17 of the Code are not satisfied and, therefore, the learned trial Judge has rightly refused the relief, as sought for, by way of proposed amendment in the plaint. In the case on hand, if the amendment, as sought for, is allowed, then the defendant cannot be placed in the same position as if the plaint had originally been correct as the amendment would cause serious injury to the defendant which cannot be compensated in costs.
Page 16 of 19 C/SCA/2345/2012 CAV JUDGMENTThe nature of amendment, if allowed, it would lead to change of basic structure of the suit as the rate of the suit land is the essential part of contract and, therefore, such amendment can never be said to be a formal amendment, as tried to be projected by learned Senior Counsel Mr.Soparkar as its consequential effect is such that it would destroy the evidence and further, the plaintiffs would successfully withdraw their admission in the plaint which cannot be permitted to be withdrawn under the guise of amendment.
15. On the basis of decisions cited at bar by learned Senior Counsel Mr.Shalin Mehta, there is no difficulty in interpreting the proviso to Order 6 Rule 17 of the Code added by the Code of Civil Procedure (Amendment), 2002, particularly, keeping in view the background wherunder, it was added. The obvious reason for adding proviso to Rule 17 of Order 6 is to curtail delay and to expedite hearing of the case. In case, the submission of learned Senior Counsel Mr.Soparkar is accepted by ignoring the proviso of Order 6 Rule 17 of the Code, it would be firstly making proviso redundant and secondly, even if no due diligence having been shown, particularly, after the trial has commenced, still the Court allows the amendment as in the present case, the very purpose of inserting the proviso would be defeated.
16. It hardly needs to be reiterated that the Court has to follow the letter of law in its spirit as it exists. With the addition of proviso to Rule 17 of Order 6 of the Code, it can safely be said that the Legislature was well aware of its consequence. Still it chose to add it. This shows that object that was sought to be achieved, was to curtail the delay once the trial has Page 17 of 19 C/SCA/2345/2012 CAV JUDGMENT commenced. Only exception to this was that if it is shown that after due diligence, it could not be applied before commencement of trial which is not the situation in this case. For the sake of repetition, the plaintiffs are well aware of the defendant's case that rate was agreed at Rs.36/- per sq.ft. and not at Rs.16/- per sq.ft. Vide defendant's reply dated 24.03.2008, the defendant has shown readiness and willingness to execute sale deed at the rate of Rs.36/- per sq.ft. Yet, the plaintiffs did not come forward to execute sale agreement at the rate of Rs.36/- per sq.ft. but filed the suit on 07.09.2011 for specific performance of Agreement to Sale at the rate of Rs.16/- per sq.ft. Now, if such amendment is at the stage when the defendant's evidence is going on, it would amount to substitute the original plaint and permitting the plaintiffs to come out with a new cause of action/new case on one hand and on the other hand, it would destroy the defendant's case.
17. Under the circumstances, it cannot be said that the plaintiffs are seeking amendment to enable the Court to adjudicate upon it more satisfactorily but they are coming out with a new cause of action/new case and, therefore, such prayer, though prayed by way of alternate relief, cannot be granted in view of proviso of Order 6 Rule 17 of the Code. In this regard, I have minutely examined each of the case laws cited at bar and, therefore, the Court is not rejecting the present petition either on the ground of limitation or on its merits or amendment application is filed at belated stage but rejects the petition in light of proviso to Order 6 Rule 17 of the Code inasmuch as the plaintiffs have failed to show that in spite of due diligence, they could not raise such plea before Page 18 of 19 C/SCA/2345/2012 CAV JUDGMENT commencement of trial. Needless to say that the plaintiffs were well aware of the defendant's case that she has agreed to sale the suit land at the rate of Rs.36/- per sq.ft. and not at the rate of Rs.16/- per sq.ft., as pleaded in the plaint.
18. Under the circumstances, considering the nature of suit being filed under the provisions of Specific Relief Act and nature of amendment as requested by way of application Exh.106 and also considering the proviso to Orde 6 Rule 17 of the Code as well as reasons assigned by the learned trial Judge, no jurisdictional error is committed by the learned trial Judge so as to exercise supervisory powers of the Court under Article 227 of the Constitution of India. Therefore, the Court is left with no option but to dismiss the present petition. Accordingly, the petition is dismissed.
(S.H.VORA, J.) Hitesh Page 19 of 19