Himachal Pradesh High Court
Padam Kaushal vs Sh. Rajan Dogra (Deceased) Through His ... on 27 August, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 360 of 2015 .
Date of decision: 27.8.2015
Padam Kaushal ...Petitioner
Versus
Sh. Rajan Dogra (deceased) through his LRs ...Respondents
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No.
For the Petitioner:
rt Mr.Atul Jhingan, Advocate.
Tarlok Singh Chauhan J. (Oral) The petitioner by medium of this petition under Article 227 of the Constitution has assailed the order passed by learned Rent Controller Shimla on 5.8.2015, whereby her application for amendment of reply to the petition came to be dismissed.
2. It is not in dispute that the proceedings in the instant case are pending since the year 2007, whereas the application for amendment only came to be filed on 23.6.2015. The amendment as was proposed reads as under:-
"The replying respondent is a cancer patient since 2002 and she has been traveling to Delhi for her medical treatment and but whenever she comes back to Shimla she is looking after her work from the said premises and even in her absence from the town her relatives attended the office."
3. The reasons for rejecting the application are contained in para 10 of the impugned order, which reads thus:-
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:49:18 :::HCHP 2 "Thus, from the perusal of the previsions as contained in Order 6 Rule 17 of the Code of Civil Procedure, it becomes apparent that a party to a proceeding can seek amendment in his/her pleadings at any time in such a 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. But, 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 and it is to be noted that in the present case, the of trial commenced on 22.05.2009, when the issues were framed and struck and the evidence of the petitioner/non-applicant was completed on 09.10.2009. It is also note worthy that the respondent/applicant rt did not bother to seek amendment in her pleadings as contained her reply even on 29.11.2012 when she filed the application under Section 151 of the Code of Civil Procedure for producing her medical record and the present application is filed on 23.06.2015 after elapsed of a considerable time even from 29.11.2012. Thus, in such circumstances and situations, it cannot be concluded that despite exercising due diligence, the respondent/applicant could not raise her plea of seeking amendment in her pleadings as contained in her reply. But, it goes to reveal that there is sheer negligence on the part of the respondent/applicant in seeking amendment in her pleadings as contained her reply which negligence on the part of the respondent/applicant cannot be cured at this belated stage when the present petition has reached at the stage of the arguments coupled with the fact that the respondent/applicant has allowed the proceedings of the present petition to reach at the stage of the arguments and then, she has filed the present petition. Therefore, the application so filed by the respondent/applicant does not fall within the purview of the proviso clause as enshrined under Order 6 Rule 17 of the Code of Civil Procedure. Therefore, in these circumstances, the submissions so raised by the ld. counsel for the respondent/applicant cannot be said to have any substance and do not hold good and are liable to be rejected and accordingly stand rejected. The law cited by the ld. counsel for the respondent/applicant also does not render any help for the respondent/applicant in support of her application."
4. It is vehemently contended by learned counsel for the petitioner that by rejection of the application, the petitioner has been denied fair opportunity to defend her case, which may eventually ::: Downloaded on - 15/04/2017 18:49:18 :::HCHP 3 prove fatal to her case and that she would be gravely prejudiced in case the said application is not allowed. While on the other hand no prejudice would be caused to the respondents in case the application .
is allowed, particularly when the petitioner does not intend to lead any further evidence in the matter.
I have heard the learned counsel for the petitioner and of have gone through the record of the case.
5. Rule 17 of Order 6 C.P.C. reads as follows:-
"17. Amendment of Pleadings.- The Court may at any stage at the rt 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. At the outset it may be observed that it was with a view to shorten litigations and speed up the trial of cases that Rule 17 was omitted by the amendment Act 46 of 1999, but its omission evoked much controversy leading to wide protest and agitations and consequently the rule was restored in its original form by amending act 22 of 2002 with the rider in the shape of proviso, limiting the power of amendment to some extent.
7. This Court in Jeet Ram Kishore and others Vs. Sunder Singh, AIR 2005 HP 21 has held that the reasons for adding proviso is to curtail delay and to expedite hearing of cases. In that case, the defendant had sought amendment of written statement after the plaintiffs' evidence was closed and it was held that the amendment ::: Downloaded on - 15/04/2017 18:49:18 :::HCHP 4 could not be allowed as defendant had failed to show that after exercise of due diligence, he could not apply for amendment before the commencement of trial.
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"14. While filing the application for amendment, except for mentioning regarding recording of passage by the Settlement Collector in the record-of-rights, there is not a murmur either regarding the said order having been set aside or the matter being further (sic) before the Financial Commissioner. When specifically questioned regarding this of omission, learned Senior Counsel was unable to say anything in this behalf Necessity for asking him arose when the application was filed on 3-7-2003, long after passing of the order by the Settlement Collector, rt and its having been set aside by the Divisional Commissioner, that in order to seek equitable and discretionary relief from the Court, least that was expected of the defendants was to have come straight and clean by bringing all the correct, facts to the notice of the Court. In this background, I have no hesitation in coming to the conclusion that the omission to mention about the order of the Collector having been set aside and the matter being pending before the Financial Commissioner, was intentional and wilful.
16. On a bare perusal of this proviso, it is evident that ordinarily amendment of pleadings is not to be allowed after the trial had commenced, unless of course, the Court was satisfied that the party concerned, could not apply after exercise of due diligence for such amendment before the commencement of the trial. Admittedly, in. the facts and circumstances of the case, trial had commenced when application under Order VI, Rule 17 read with Section 151 of the C.P.C. was filed. Rather it was at the stage of defendants" evidence, In these circumstances, again when a reference is made as to what is set out in the application seeking amendment, material portion whereof is extracted hereinabove, it is evident that except for using the words "after exercise of due diligence" averments in the application are not enough to enable the Court to consider the application to the light of the amended provisions, particularly proviso to Order VI, Rule 17 as it stands after the Code of Civil Procedure (Amendment) Act, 2002."
7. The Hon'ble Supreme Court has interpreted the proviso to be requirement mandated to prevent frivolous applications for amendment intended, only to delay the trial. In Salem Advocate Bar ::: Downloaded on - 15/04/2017 18:49:18 :::HCHP 5 Association Vs. Union of India AIR 2005 SC 3353, it was held as follows:-
.
"27. Order VI Rule 17 of the Code deals with amendment of pleadings.
By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the of commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due rt diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.
Service through Courier."
8. In view of the aforesaid exposition of law, it is clear that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. Whereas, in the instant case the application for amendment came to be filed only when the case was listed for final arguments.
9. Adverting to the facts of the case, it would be seen that once the petitioner herself claims to be a cancer patient since the year 2002, then there is no reason forthcoming as to why this was not taken as a ground in the defence, particularly when the petition itself came to be instituted much later in the year 2007. The only reason, rather a strange reason has been given in the application for filing belatedly contained in para 5 of the application where, after ::: Downloaded on - 15/04/2017 18:49:18 :::HCHP 6 reproducing the proposed amendment in para 4, the following averments has been made:-
.
"5. That this aspect came to the knowledge of the applicant/respondent when the present counsel of the applicant/respondent brought the same to the knowledge of the applicant/respondent at the time of preparation of the case at the time of final arguments."
of
10. The reason as given in the application cannot be accepted, because as per respondent's own showing, she is patient of cancer rt since 2002 and in case she wanted to raise this ground in the pleadings, then the same was well within her knowledge, at least from the time when she was undergoing treatment, i.e. since 2002.
11. Coming to the other contention of the petitioner that she otherwise does not intend to lead any evidence, because sufficient evidence is already on record, is again without any basis. It is more than settled that it is evidence which has to be in tune with the pleadings and not vice-versa. The defence of the case has to be built and established in the pleadings and then evidence has to be led in light of the pleadings of the parties. The petitioner cannot be permitted to place the "cart before the horse" by trying to bring the pleadings in tune with the evidence already lead, as the same is legally not permissible.
12. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs. All pending applications also stands disposed of.
::: Downloaded on - 15/04/2017 18:49:18 :::HCHP 7The eviction petition is pending adjudication since the year 2007 and it is high time that the same is decided. Therefore, the learned Rent Controller is requested to decide the same as .
expeditiously as possible and in no event later than 31st December, 2015.
(Tarlok Singh Chauhan),
27th August, 2015 Judge.
of
(KRS)
rt
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