Bombay High Court
Nandkishore Bhandari & Anr vs Pavanpurta Co-Op. Housing Sty. Ltd. & ... on 5 March, 2012
Author: S.J. Vazifdar
Bench: S.J. Vazifdar
1 CHS1881.11
SRP
IN THE HIGH COURT OF ADJUDICATION AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS N0. 1881 OF 2011
IN
SUIT NO. 659 OF 2011
1. Nandkishore Bhandari & Anr. ... Plaintiffs
Vs
1. Pavanpurta Co-op. Housing Sty. Ltd. & Ors. ... Defendants
Mr. N.G. Thakkar, senior counsel with Mr. Anand Kumar i/b Anand
Kumar and Daulat Jehangir for the Plaintiffs.
Mr. A.S. Khandeparkar with Mr. D. Brijesh i/b Mr. D. Brijesh for the
Defendant Nos.1 to 5.
Mr. Kedar Wagle, for the Defendant No.7.
Mr. Joaquim Reis i/b Mr. Amogh Karandikar for the Defendant No.8.
CORAM: S.J. VAZIFDAR, J.
MONDAY, 5TH MARCH, 2012.
ORAL JUDGMENT :
1. This is the plaintiff's Chamber Summons to amend the plaint.
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2. The suit is filed for specific performance of an agreement entered into between the plaintiffs and defendants nos. 1 to 5; for a declaration that the termination thereof is wrongful and that certain orders passed by defendant No.6, Bombay Municipal Corporation are illegal and for a permanent injunction restraining defendant nos. 7 to 10 from developing the suit property.
3. The amendment would normally have been allowed. They are merely legal submissions based on facts which had already been stated in the plaint and to bring on record a subsequent development namely a notice under section 164 of the Maharashtra Co-operative Societies Act, dated 15th March 2011. The only opposition to the chamber summons is based on the provisions of Order VI rule 17 of the Code of Civil Procedure, 1908, as amended by the Code of Civil Procedure (Amendment) Act, 2002, which read as under:-
"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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."::: Downloaded on - 09/06/2013 18:15:36 :::
3 CHS1881.11 The contention is that the trial had commenced prior to the present Chamber Summons and that therefore unless the court comes to the conclusion that in spite of due diligence the plaintiffs could not have raised the matter the amendment ought to be disallowed.
4. For the purpose of this chamber summons, it is necessary to refer only to the few relevant facts. On 31st August 2009 the plaintiff had filed Suit No. 2502 of 2009 for the same reliefs. On 6 th December 2010 the plaintiff issued a notice under section 164 of the Maharashtra Co-
operative Societies Act as the first defendant is registered under that Act.
By an order dated 4th February 2011 the plaintiff was permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. The suit accordingly stood withdrawn.
5. The present suit was filed on 9th February 2011. In paragraph 20 of the plaint there is a reference to the said Suit No. 2502 of 2009 and to the order dated 4th February 2011.
The averments are sought to be introduced obviously with a view to comply with the provisions of Order VII rule 6 of the CPC read with section 14 of the Limitation Act, 1963.
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6. The plaintiff filed Notice of Motion No. 919 of 2011 for interlocutory reliefs. At the hearing of the Notice of Motion the defendants raised two preliminary objections. By an Order dated 28 July 2011 the following preliminary issues were raised: -
1. Whether the suit is barred for the alleged non-compliance of section 164 of the Mahrashtra Co-Operative Societies Act?
2. Whether the suit is barred by limitation?
7. Before going further it is necessary to note that it was imperative to raise the preliminary issues in view of section 9A of the CPC which is applicable only to the State of Maharashtra. Section 9A, which was introduced by the Maharashtra Act 65 of 1977 with effect from 19-12- 1977, reads as under: -
"9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue.--(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an Order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any Suit, an objection to the jurisdiction of the Court to entertain such Suit is taken by any of the parties to the Suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the Order granting the interim relief. Any such application shall be heard and disposed of by the ::: Downloaded on - 09/06/2013 18:15:36 ::: 5 CHS1881.11 Court as expeditiously as possible and shall not in any case be adjourned to the hearing of Suit.
(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.".
8. By an order dated 17th of August 2011 I recorded that the plaintiffs had examined plaintiff No. 1 by filing an affidavit in lieu of examination-in-chief and directed that the objections to the affidavit and the documents tendered in court should be raised before the Commissioner for recording evidence. I further directed that the parties would be at liberty to cross-examine the witness without prejudice to their objections which would be decided at the hearing of the preliminary objections. I accordingly appointed a Commissioner, an advocate of this court, to record the evidence.
9. It is important to note that in the affidavit in lieu of examination-
in-chief and in particular paragraphs 12 and 15 thereof, plaintiff No.1 stated all that is stated in the proposed amendments. No objection was raised to any part of the said affidavit including paragraphs 12 and 15 thereof. It is also important to note that the witness i.e. plaintiff No.1 was cross-examined inter-alia on these very aspects. The present amendments ::: Downloaded on - 09/06/2013 18:15:36 ::: 6 CHS1881.11 are sought to be introduced in the plaint in order to obviate any technical objection that may be raised about the absence of these averments in the plaint.
10. The Chamber Summons was filed after the cross-examination was over. It was submitted that in view of the proviso to Order VI rule 17 the Chamber Summons ought not to be allowed as it was made after the trial had commenced and that with due diligence the plaintiffs could have raised the matter before the commencement of the trial.
11. By this Chamber Summons the plaintiff merely seeks to introduce averments to the effect that they were bona-fide and in good faith prosecuting the said Suit No. 2502 of 2009 with due diligence. The plaintiffs also seek to furnish the reasons why they sought the leave of the court to withdraw the said Suit No. 2502 of 2009 with liberty to file a fresh suit on the same cause of action. The proposed amendment states that in view thereof the period from 31 st August 2009 i.e. the date of filing of the said Suit No. 2502 of 2009 up to 4 th February 2007 i.e. the date of the withdrawal thereof ought to be excluded in computing limitation in terms of section 14 of the Limitation Act, 1963.
::: Downloaded on - 09/06/2013 18:15:36 :::7 CHS1881.11 The amendment also seeks to bring on record that after the present suit was filed the plaintiff served a fresh notice dated 15 th March 2011 under section 164 of the Maharashtra Co-operative Societies Act 1860.
12. Mr. Thakkar, the learned senior counsel appearing on behalf of the plaintiffs, firstly contended that in this court it is the provisions of the Maharashtra Amendment to Order VI rule 17 that would apply and not the provisions of Order VI rule 17 as amended by the Code of Civil Procedure (Amendment) Act, 2002.
13. The submission is not well founded. Section16 of the 2002 Amendment Act reads as under: -
"16. Repeal and Savings.--(1) 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.
(2) 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) the provisions of Section 102 of the principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force;
(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 ::: Downloaded on - 09/06/2013 18:15:36 ::: 8 CHS1881.11 substituted by Section 16 of the Civil Procedure Code (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 Civil Procedure Code (Amendment) Act, 1999 (46 of 1999) and Section 7 of this Act;
(c) the provisions of Rule 1 of Order XX of the First Schedule as amended by Section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of Section 13 of this Act."
14. The question is answered against Mr. Thakker's submission by the judgement of the Supreme Court in Ganpat Giri v. IInd ADJ, (1986) 1 SCC 615. The Supreme Court was concerned with the effect of section 97 of the Code of Civil Procedure (Amendment) Act, 1976 on any amendment made or any provision inserted in the CPC by a State Legislature or a High Court prior to the commencement of the Amending Act in the different local areas in India where the Code was in force if they be inconsistent with the provisions of the code as amended by the Amending Act.
The Supreme Court held that section 97 of the 1976 Amendment Act, which is similar to section 16 of the 2002 Amendment Act, had an effect on the entire code - both the main part of the code consisting of sections and the first schedule to the code which consists of orders and rules. Section 97 (1) of the 1976 Amending Act was similar to section16 ::: Downloaded on - 09/06/2013 18:15:36 ::: 9 CHS1881.11 of the 2002 Amendment Act with which we are concerned in the present case. The Supreme Court held as under: -
"5. There are three sub-sections in Section 97 of the Amending Act. A reading of Section 97 of the Amending Act shows that it deals with the effect of the Amending Act on the entire Code both the main part of the Code consisting of sections and the First Schedule to the Code which contains Orders and Rules. Section 97(1) of the Amending Act takes note of the several local amendments made by a State legislature and by a High Court before the commencement of the Amending Act and States that any such amendment shall except insofar as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands repealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operative on the commencement of the Amending Act i.e. on February 1, 1977. The repealing provision in Section 97(1) is not confined in its operation to provisions of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act. The object of Section 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasising this in view of the decision of the Allahabad High Court which is now under appeal before us.
13. Now reverting to Section 97(1) of the Amending Act, the High Court was in error in holding that because no amendment had been made to Rule 72 by the Amending Act, Section 97(1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the Amending Act. As observed earlier, the effect of Section 97(1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed ::: Downloaded on - 09/06/2013 18:15:36 ::: 10 CHS1881.11 irrespective of the fAct whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in sub-section (2) of Section 97. Sub-section (3) of Section 97 provides that save as otherwise provided in sub-section (2) the provisions of the Code as amended by the Amending Act shall apply to every Suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fAct that the right or cause of Action in pursuance of which such Suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Sub-section (3) of Section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to sub-section (2) of Section 97.
14. The High Court was therefore m error in holding that the amended Rule 72 of Order 21 which was in force in the State of Uttar Pradesh prior to February 1, 1977 continued to be in force after that date and that the court sale held in which the decree-
holder had purchased the property without the express permission of the executing court was unassailable under sub-rule (3) of Rule
72."
15. Thus upon the commencement of the Amendment Act of 2002 the Maharashtra amendment to Order VI rule 17 ceased to have effect. The provisions of Order VI rule 17 as amended by the 2002 Amendment Act apply to the present case.
16. I, however, find well founded Mr.Thakkar's submission that the proviso to Order VI rule 17 does not apply to proceedings for the ::: Downloaded on - 09/06/2013 18:15:36 ::: 11 CHS1881.11 determination of a preliminary issue directed to be decided in an application under section 9 A of the CPC. The proviso to Order VI rule 17 was introduced to ensure that trials are not unduly or unnecessarily delayed. Order VI rule 17 is not a State amendment whereas section 9A is a State amendment applicable only in the State of Maharashtra. By enacting the proviso to Order VI rule 17 Parliament had in mind the trial of the suit as contemplated under the provisions of Order XIV read with Order XVIII of the CPC. Order XVIII rule 2 provides the right to begin "On the day fixed for the hearing of the Suit". Rules1 and 2 of Order XIV read as under: -
"1. Framing of issues.-- (1) Issues arise when a material proposition of Act or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in Order to show a right to sue or a defendant must allege in Order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the Suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fAct or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.::: Downloaded on - 09/06/2013 18:15:36 ::: 12
CHS1881.11 (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the Suit makes no defence."
"2. Court to pronounce judgment on all issues.--(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same Suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the Suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the Suit in accordance with the decision on that issue."
17. Order XIV rule 2 contemplates a trial at the final stage of the proceeding/suit. In other words it does not contemplate a trial in respect of a preliminary issue pursuant to an order under section 9A which is at the interlocutor stage. Further under Order XIV, the court is not bound to try an issue as a preliminary issue even if it is of the opinion that the case or any part thereof may be disposed of on that issue of law only. The mere fact that the court may in that event postpone the settlement of the other issues until after that issue has been determined would make no difference for the present purpose. What is important to note is the stage at which all this is to be done. The stage is the final hearing of the suit ::: Downloaded on - 09/06/2013 18:15:36 ::: 13 CHS1881.11 i.e. when the suit is ready for hearing on all issues preliminary and otherwise. It is therefore at that stage that the proviso to Order VI rule 17 was meant to apply. It was not meant to apply at an interlocutory stage although the determination of the preliminary issues pursuant to an order under section 9A would be a final determination thereof in the suit of such preliminary issues .
18. Section 9A on the other hand contemplates an entirely different stage. It operates at the interlocutory stage. This is clear from the plain language of the section. Firstly the heading itself provides that the question whether an issue must be decided as a preliminary issue arises at the hearing of an application relating to interim relief in a suit. The duty of the court to decide the preliminary issue arises on the objection to jurisdiction being taken at the hearing of an application relating to interim relief in a suit. The section further provides that the court shall proceed to determine the issue "at the hearing of such application"
meaning thereby the application relating to interim relief. This determination must precede the granting or setting aside the order granting the interim relief.::: Downloaded on - 09/06/2013 18:15:36 ::: 14
CHS1881.11 Further still this section expressly provides that the application shall be heard and disposed of by the court at the interlocutory stage and "shall not in any case be adjourned to the hearing of the suit". The last sentence of section 9A (1) therefore clearly establishes that the determination of a preliminary issue pursuant to an order under section 9A is not at the final hearing of the suit as contemplated under Order XIV of the CPC.
19. It is thus clear that section 9A does not relate to a stage at the final hearing of the suit as contemplated by Order XIV of the CPC. Thus though the determination of a preliminary issue under section 9A requires evidence that is not determinative of the question before me namely whether the proviso to Order VI rule 17 would operate even when a preliminary issue is decided under section 9A. The proviso was an amendment in certain circumstances alone. Normally amendments subject to certain well-established exceptions are not disallowed. It is necessary therefore to construe the proviso strictly.
The Supreme Court in Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, held as under : -
::: Downloaded on - 09/06/2013 18:15:36 ::: 15CHS1881.11 "17. Before we part with this Order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the Suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings."
20. The words "commencement of trial" in the proviso therefore refer to a trial as contemplated under Order XIV and not to proceedings under section 9A of the CPC. In the present case also the stage of the final hearing of the suit as contemplated under the proviso to Order VI rule 17 of the CPC has not arrived as yet. The mere fact that the preliminary issues in the present case require oral evidence would make no difference.
21. The judgements relied upon on behalf to defendants to indicate when a trial is deemed to have commenced are not relevant while ::: Downloaded on - 09/06/2013 18:15:36 ::: 16 CHS1881.11 deciding the present issue. Indeed if the present preliminary issues were being decided at the final hearing of the suit as understood by or in accordance with the provisions of Order XIV read with Order XVIII of the CPC the trial would be deemed to have commenced. However in the present case the preliminary issues are to be decided pursuant to the orders passed under section 9A of the CPC.
22. Mr. Reis relied upon the following observations from the judgement of the Supreme Court in Vidyabai v. Padmalatha, (2009) 2 SCC 409: -
"10. By reason of the Civil Procedure Code (Amendment) Act,2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, 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, 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.
11. From the Order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. 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 ::: Downloaded on - 09/06/2013 18:15:36 ::: 17 CHS1881.11 proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding".
23. It is important to note that the Supreme Court dealt with an appeal filed against a judgement of the Karnataka High Court. Section 9A is not applicable in the state of Karnataka and therefore did not fall for the consideration of the Supreme Court. It is also obvious from the observations in paragraph 11 quoted above that the Supreme Court considered the proviso to Order VI rule 17 qua the provisions of Order XIV and Order XVIII of the CPC. The judgement, therefore, is of no assistance to the defendants.
24. It is also important to note that the Supreme Court dealt with the judgement in Baldev Singh's case (supra). After referring to the observations which I set out earlier the Supreme Court held: -
"It is not an authority for the proposition that the trial would not be deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence."
Even in the present case the affidavit of documents have not been filed. Thus in any event the Chamber Summons would not be barred.
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25. In this view of the matter it is not necessary to consider whether the application for amendment falls within the exception provided for in the proviso to Order VI rule 17 namely whether the amendments could not have been raised before the commencement of the trial in spite of due diligence.
26. For the purpose of this Chamber sums it is not necessary to consider Mr. Thakkar's submission that the plaintiff is entitled to claim exemption from the law of limitation in any event under Order VII rule
6. That is an issue which does not arise in the Chamber Summons. This point can always be urged at the appropriate stage even if the Chamber Summons for amendment is not allowed.
27. The plaintiffs have complied with the provisions of section 164 of the Maharashtra Cooperative Societies Act by having given the said notice dated 6th December 2010. Had I held otherwise I would readily have granted prayer (b) of the Chamber Summons to enable the plaintiffs to overcome the defect.
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28. The Chamber Summons is, therefore, made absolute in terms of prayer (a). The order is stayed upto and including 10th April, 2012. The amendments shall be carried out within four weeks thereafter. The defendant shall be entitled to file further pleadings to deal with the amendments and to further cross-examine the witness if they so desire.
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