Madhya Pradesh High Court
Dhirendra vs State Bank Of India on 31 January, 1992
Equivalent citations: 1993(0)MPLJ607
ORDER V.S. Kokje, J.
1. Heard Shri N.K. Patni, for the applicant and Shri R.C. Maheshwari for the non-applicant.
2. This revision application challenges the order dated 10-8-1991 passed by the Xth Additional Judge to the Court of District Judge, Indore allowing an amendment in the plaint. The main contention of Shri Patni, learned counsel for the applicant is that the suit was closed for judgment at the time the plaintiff moved an application for amendment. According to Shri Patni when once the case was closed for judgment, no further application could be moved in the case. He relied heavily upon the decision of the Supreme Court in Arjunsingh v. Mohindrakumar and Ors., AIR 1964 SC 993. Shri R.C. Maheshwari learned counsel for the non-applicant tried to distinguish the decision of the Supreme Court in Arjunsingh's case (supra) by contending that, that case applied only to an application under Order 9, Rule 7 of the Code of Civil Procedure (for short the 'Code') being filed after the case was closed for judgment. According to him there is a difference in the provisions of Order 9 and Order 6 of the Code. He further contended that Order 6, Rule 17 of the Code permitted an amendment application at any stage of the suit and date of decision was also a stage of the suit. He tried to draw a comparison between Order 9 and other provisions of the Code and stated that amendment applications have been allowed by the Court after a preliminary decree was passed. He also raised a question as to whether an application for compromise under Order 23, Rule 1 of the Code could also not be entertainable after the case is closed for judgment. He relied on rulings reported in AIR 1974 AP 201, AIR 1976 Del. 56, 1989 MPLJ 750 = 1989 JLJ 359 and AIR 1969 SC 1267. He contended that rules of procedure are handmaid of justice and cannot be allowed to defeat justice.
3. Having heard the learned counsel and having perused the decision of the Supreme Court in Arjunsingh's case (supra), I have come to the conclusion that the trial Court had no jurisdiction to entertain the application after the closure of the case for judgment. In para 19 of the judgment in Arjunsingh's case (supra) while considering as to whether after the closure of the hearing there is any stage of proceedings the Supreme Court observed as follows:--
"Mr. Pathak, however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Court, wholly unrealistic. In the present context, when once the hearing start, the Court contemplated only two stages in the trial of the suit; 1) where the hearing adjourned or 2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privilages in the matter and it is only for the convenience of that Court that Order XX, Rule 1 permits judgment to be delivered after an interval after the hearing is completed......
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There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX, Rule 7". In the face of the aforesaid remarks the contention that the ruling only applied to Order 9 and had no application to Order 6 is devoid of any substance. When the Court has categorically pronounced that there is no hiatus between two stages of reservation of judgment and pronouncing of the judgment, it is clear that though the judgment is deferred, there is no stage in between, at which an application under Order 6, Rule 17 of the Code could be filed. As soon as the judgment is pronounced the proceedings come to an end and no stage of the proceedings remains at which an application for amendment could be moved. The ruling is much applicable to Order 6, Rule 17 of the Code as it is applicable to Order 9, Rule 7 of the Code. The question posed by the non-applicants as regards moving an application for recording compromise under Order 23, Rule 1 does not arise in this case but a bare reading of Rule 1 of Order 23 of the Code shows that the language used therein is" at any time after the institution of a suit", the plaintiff may as against all or any of the defendants abandon his suit or abandons a part of his claim. The words 'at any time after the institution of a suit' are not equivalent to at any stage of the proceedings. At any time after the institution of the suit may include any time before the judgment is passed and it may be possible to move an application for withdrawal or abandonment of the suit between the closure of the case for judgment and pronouncing of the judgment. The same cannot be said about the application under Order 6, Rule 17 because the words used in that provision are at any stage of the proceedings. There being no stage of the proceedings between the closure of the case for judgment and pronouncement of judgment, an application under Order 6, Rule 17 of the Code cannot be moved in that period. So far as amendment being allowed between the passing of the preliminary decree and passing of the final decree is concerned obviously there are stages between the passing of the preliminary decree and passing of final decree which can be said to be stages in the proceedings. As already discussed there is no such stage between reserving a case for judgment and pronouncement of judgment.
4. It is, therefore, clear from the aforesaid discussion that the trial Court had no jurisdiction to entertain or allow an application under Order 6, Rule 17 of the Code after the closure of the case for judgment and before pronouncing the judgment. A certified copy of the judgment in Civil Rev. No. 241/89 of this Court was shown to me by the learned counsel for the non-applicant. However, that is the case on the point of delay and not on the point of entertainability of the application between the closure of the case for judgment and pronouncement of judgment. It has, therefore, no application to the case just as other cases cited on behalf of the non-applicants have no application to the present case. So far as the argument that procedure is handmaid of justice and should not be allowed to defeat it based on AIR 1969 SC 1267, suffice it to say that where specific provision is made in the code for amendment, there is a no scope for invoking inherent powers and this aspect has also been considered by the Supreme Court in AIR 1964 SC 993.
5. In the result, this application deserves to be allowed and is hereby allowed. The impugned order is set aside and the trial Court is directed to pronounce judgment in the case. If the trial Judge, who has heard the arguments has been transferred, the case shall be transferred to him, for delivering judgment. There shall be no orders as to costs.