Bombay High Court
Chandrashekhar S/O Pandurang Tumsare vs Dr. Balkrishna S/O Shivkaran Changani ... on 22 February, 2016
Author: Z.A. Haq
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3147 OF 2014
Chandrashekhar s/o Pandurang Tumsare,
Aged about 53 years,
Occupation - Business,
R/o 473, Anand Nagar, Sakkardara,
Nagpur. ig .... PETITIONER
VERSUS
1) Dr. Balkrishna s/o Shivkaran Changani
(Sharma), Aged about 62 years,
Occupation - Private,
R/o 15th August Apartment, Dhantoli,
Nagpur.
2) Shri Shrikrishna s/o Shivkaran Changani,
Aged about 60 years,
Occupation - Private.
3) Shri Harikrishna s/o Shivkaran Changani,
Aged about 58 years,
Occupation - Agriculturist,
4) Dr. Ramkrishna s/o Shivkaran Changani,
Aged about 45 years,
Occupation - Doctor,
Nos. 2 to 4 R/o Tekdi Lines, Sitabuldi,
Nagpur.
5) Shri Baburao Mahadeorao Khanokar,
Aged about 65 years,
Occupation - Private,
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6) Shri Ashok Baburao Khanorkar,
Aged about 63 years,
Occupation - Private,
7) Shri Krishna s/o Baburao Khanorkar,
Aged about 55 years,
Occupation - Money Lending,
Nos.5 to 7 R/o Ruikar Road, Mahal,
Nagpur. .... RESPONDENTS
______________________________________________________________
Shri P.D. Randive, Advocate for the petitioner,
Shri M.B. Naidu, Advocate for the respondent Nos.6 and 7.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATE OF RESERVING THE JUDGMENT
: 04-02-2016
DATE OF PRONOUNCING THE JUDGMENT :
22-
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2
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JUDGMENT :
1. Heard Shri P.D. Randive, learned Advocate for the petitioner and Shri M.B. Naidu, learned Advocate for the respondent Nos.6 and 7.
2. The petitioner-defendant has challenged the order passed by the trial Court rejecting the application filed by him under Order VI Rule 17 of the Code of Civil Procedure, seeking permission to amend the written statement.
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3. It is undisputed that the trial of civil suit has commenced.
The application filed by the petitioner seeking permission to amend the written statement does not show that inspite of due diligence, the petitioner could not bring on the record the facts sought to be brought on the record by the proposed amendment. In view of this, the learned trial Judge does not have the jurisdiction to consider and allow the amendment application, in view of the bar created by the proviso below Rule 17 of Order VI of the Code of Civil Procedure, as held in the judgment given by the Hon'ble Supreme Court in the case of Vidyabai and others vs. Padmalatha and another reported in 2009(4) Mh.L.J. 30.
4. Shri P.D. Randive, learned Advocate for the petitioner has submitted that the embargo created by the proviso below Rule 17 of Order VI of the Code of Civil Procedure will not be applicable. It is submitted that the provisions of Order VI Rule 17 of the Code of Civil Procedure as amended by the Maharashtra Amendment of 1983 govern the trial of civil suits by the Courts in Maharashtra. It is submitted that Section 122 of the Code of Civil Procedure recognizes the rule making powers of the High Court, and the Maharashtra Amendment of 1983 which amends the Code of Civil Procedure in so ::: Uploaded on - 23/02/2016 ::: Downloaded on - 27/02/2016 23:16:14 ::: 4 wp3147.14 far as it is applicable to the State of Maharashtra, is a special law and it will prevail. It is submitted that Section 4 of the Code of Civil Procedure saves the Maharashtra Amendment of 1983 to the Code of Civil Procedure and the Maharashtra Amendment of 1983 will be applicable even after the amendment of the Code of Civil Procedure on 01-07-2002. The learned Advocate for the petitioner has relied on the judgment given by the Hon'ble Supreme Court in the case of Iridium India Telecom Ltd. v. Motorola Inc. reported in AIR 2005 SC 514(1), particularly paragraph No.44 of the judgment and has submitted that Section 97(1) of the Amending Act has the effect of sweeping away the amendments made and the provisions inserted in the Principal Act by the State Legislature, or the High Court in exercise of its delegated powers of legislation, and to declare that all such amendments inconsistent with the provisions of the Code would stand repealed. It is submitted that thus considering the conjoint effect of the provisions of Section 4 and Section 122 of the Code of Civil Procedure and Section 97(1) of the Amending Act, it has to be held that the proviso below Rule 17 of Oder VI of the Code of Civil Procedure, which is added in the Central Act will not apply to the civil suits tried by the Courts situated in the State of Maharashtra as there is no such proviso below Rule 17 of Order VI of the Code of Civil Procedure as amended ::: Uploaded on - 23/02/2016 ::: Downloaded on - 27/02/2016 23:16:14 ::: 5 wp3147.14 by the Maharashtra Amendment of 1983. It is submitted that therefore, the amendment sought by the petitioner has to be liberally considered and allowed on the general principles and it cannot be rejected in view of the embargo created by the proviso below Rule 17 of Order VI of the Code of Civil Procedure (Central Act) and on the ground that the petitioner has not been able to show that inspite of due diligence he cannot bring on the record the facts sought to be brought on the record by the proposed amendment. It is prayed that the impugned order be set aside and the application filed by the petitioner seeking permission to amend the written statement be allowed.
5. Per contra, Shri M.B. Naidu, learned Advocate for the respondent Nos.6 and 7 has submitted that the application seeking permission to amend the written statement is filed after the evidence of the plaintiff is recorded and therefore, it has to be considered as per the mandate of proviso below Rule 17 of Order VI of the Code of Civil Procedure. The learned Advocate has referred to Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 (hereinafter referred to as "the Act No.22 of 2002") and has submitted that the provisions of Order VI Rule 17 of the Code of Civil Procedure as amended by the ::: Uploaded on - 23/02/2016 ::: Downloaded on - 27/02/2016 23:16:14 ::: 6 wp3147.14 Maharashtra Amendment of 1983 being inconsistent with the principal Act as amended on 01-07-2002, it stands repealed.
Relying on the judgments given by the Hon'ble Supreme Court in the case of Vidyabai and others vs. Padmalatha and another reported in 2009(4) Mh.L.J. 30 and the judgment given by this Court in the case of Chhabubai Haribhau Badakh vs. S.H. Khatod and Sons and another reported in 2009(6) Mh.L.J. 760, it is submitted that the application filed by the petitioner seeking permission to amend the written statement, after commencement of the trial and in the absence of averments to show that inspite of due diligence the defendant could not bring on record the facts sought to be incorporated by the proposed amendment, the civil application is liable to be dismissed and it is rightly dismissed by the learned trial Judge. It is submitted that the impugned order does not suffer from any illegality or irregularity and it need not be interfered with and it is prayed that the petition be dismissed with costs.
6. After hearing the learned Advocates for the respective parties, I find that the submissions made on behalf of the respondent Nos.6 and 7 relying on Section 16 of the Act No.22 of 2002 require consideration.
::: Uploaded on - 23/02/2016 ::: Downloaded on - 27/02/2016 23:16:14 :::7 wp3147.14 The Act No.22 of 2002 has received the assent of the President on 23-05-2002 and is published in the Gazette of India Extra Ordinary Part II Section 1 dated 24-05-2002. Section 16 of the Act No.22 of 2002 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 substituted by Section 16 of the Code of Civil Procedure (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 Code of Civil Procedure (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 ::: Uploaded on - 23/02/2016 ::: Downloaded on - 27/02/2016 23:16:14 :::
8 wp3147.14 shall not apply to a case where the hearing of the case had concluded before the commencement of Section 13 of this Act."
Section 16(1) of the the Act No.22 of 2002 lays down that any amendment inserted in the principal Act by a State Legislature or High Court before the commencement of the Act No.22 of 2002 shall stand repealed except in so far as such amendment is consistent with the principal Act as amended by the Act No.22 of 2002. The provisions of Order VI Rule 17 inserted by the Maharashtra Amendment of 1983 do not contain the proviso as introduced by the Act No.22 of 2002. The proviso below Rule 17 of Order VI of the Code of Civil Procedure introduced by the Act No.22 of 2002 takes away the jurisdiction of the Court to consider and allow the amendment application if it is filed after the commencement of the trial unless the party filing the amendment application satisfies the Court that inspite of due diligence the application seeking amendment could not be filed earlier. The Act No.22 of 2002 has been introduced with the object of curtailing the period for disposal of the civil suit by setting a time frame for filing the written statement and for moving an application seeking permission to amend the pleadings. Consequently the time frame set up by the proviso below Rule 17 of Order VI of the Code of Civil Procedure by the Act No.22 of 2002 will have to be given recognition and the object ::: Uploaded on - 23/02/2016 ::: Downloaded on - 27/02/2016 23:16:14 ::: 9 wp3147.14 for which the Code of Civil Procedure is amended by the Act No.22 of 2002 cannot be frustrated by overlooking it and permitting the Court to allow the amendment application though it is filed after the commencement of trial and though the party has not even explained that inspite of due diligence, it was not possible for it to bring on the record the facts sought to be brought on the record by the proposed amendment. It has to be treated that the provisions of Order VI Rule 17 of the Code of Civil Procedure inserted by the Maharashtra Amendment of 1983 are inconsistent with the proviso below Rule 17 of Order VI of the Code of Civil Procedure as amended by the Act No.22 of 2002. Consequently, it has to be held that in view of Section 16 of the Act No.22 of 2002, the provisions of Order VI Rule 17 of the Code for Civil Procedure as inserted by the Maharashtra Amendment of 1983 stand repealed and the stage of amendment of pleadings in the civil suits filed in the Courts in the State of Maharashtra after 01-07-2002 will be governed by the provisions of Order VI Rule 17 (including proviso) of the Code of Civil Procedure as amended by the Act No.22 of 2002.
7. The submissions made by the learned Advocate for the petitioner, relying on the provisions of Sections 4, 97(1) and 122 of the ::: Uploaded on - 23/02/2016 ::: Downloaded on - 27/02/2016 23:16:14 ::: 10 wp3147.14 Code of Civil Procedure cannot be accepted in view of the provisions of Section 16 of the Act No.22 of 2002.
8. In view of the above, I find that the application filed by the petitioner seeking permission to amend the written statement after the commencement of trial, could not have been entertained and allowed by the trial Court as the petitioner has not even averred as to what prevented him for bringing on the record the facts sought to be incorporated by the proposed amendment.
9. Therefore, I find that the learned trial Judge has neither committed any patent illegality or illegality nor there is error of jurisdiction which necessitates interference by this Court in the supervisory jurisdiction. The petition is dismissed. In the circumstances, the parties to bear their own costs.
JUDGE pma ::: Uploaded on - 23/02/2016 ::: Downloaded on - 27/02/2016 23:16:14 :::