Jammu & Kashmir High Court
Prabhat Terepenes And Synthetics Ltd. ... vs Bank Of Baroda on 4 April, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
......
OW 104 no.132/2014
Pronounced on: 04.04.2024
Prabhat Terepenes and Synthetics Ltd. 154/6, Mittal Tower, B Wing,
Nariman Point, Mumbai, 400021
.......Petitioner(s)
Through: Mr Vishal Goel, Advocate
Versus
Bank of Baroda, Purani Mandi Branch Jammu
........Respondent(s)
Through: Mr Anil Mahajan, Advocate
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Petitioner has filed instant writ petition under Article 227 of the Constitution of India. He seeks quashing of Order dated 4th June 2014, hereinafter for brevity referred to as "impugned order", passed by Additional District Judge, Bank Cases, Jammu, for brevity "Trial Court", in a case titled as Bank of Baroda vs. Parbhat Terpenes and others. In terms of impugned order petitioner's application under Order VI Rule 17 of the Code of Civil Procedure for amendment of written statement has been dismissed by the Trial Court.
2. Respondent - Bank of Baroda, has filed a civil suit for recovery of money against petitioner-company and others before Trial Court as petitioner-company for its Oleo Pine Resin Business at Industrial 1 OW 104 no.132/2004 Estate, Jammu had availed loan/credit facilities. Upon filing of civil suit, petitioner/defendant filed its written statement way back in the year 2001. It was in the year 2008 that the Trial Court, vide its order dated 22nd July 2008, framed the issues and fixed the matter for evidence of plaintiff - respondent herein. It is contention of petitioner that in order to elaborate its defence and to incorporate few developments that according to him took place during pendency of civil suit, he filed an application under Order VI Rule 17 C.P.C seeking amendment of written statement. Application, however, came to be dismissed by Trial Court vide order impugned.
3. Learned counsel for petitioner while assailing order impugned has stated that order impugned is without any merit and without appreciating facts of the case and relevant provisions of CPC. Impugned order, it is next stated, has been passed in utter disregard and contravention of provisions of Order 6 Rule 17. The Trial Court has fallen in error in holding that petitioner's application for amendment of written statement is time barred and that no application for condonation of delay has been filed when legal position is that there is no period of limitation provided under the CPC or any other law including Limitation Act to prescribe any period of any limitation for seeking amendment of written statement. He contends that amendment of written statement can be sought at any stage of the suit under the provisions of Rule 17 of Order 6 CPC.
Further submission of learned counsel for petitioner is that Trial Court has misread facts of the case and dismissed petitioner's application on the ground that suit has reached at fag end which does 2 OW 104 no.132/2004 not coincide with the true facts of the case. He also states that the trial in the suit is being conducted and the suit is pending disposal for producing evidence by petitioner and that statement of a single witness has been recorded and that examination-in-chief of only one of the plaintiff's witnesses has been recorded that too during the period the petitioner was set ex parte. He would contend that ex parte proceedings initiated against petitioner have been set aside and that setting aside of ex parte proceedings against him has brought the suit to the same position as it was before he was set ex parte. I have heard learned counsel for the parties and perused the record as well as order impugned.
4. Pleadings are statement in writing delivered by each party alternately to his opponent, stating what his contentions will be at the trial, giving all such details as his opponent needs to know in order to prepare his case in answer. It is an essential requirement of pleading that material fact and necessary particulars must be stated in the pleadings and the decisions cannot be based on the grounds outside the pleadings. But many a time the party may find it necessary to amend his pleadings before or during the trial of the case.
5. The law on the subject of pleadings is contained in Rule 17 of Order 6 of the C.P.C which reads as under:
"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 3 OW 104 no.132/2004 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. The rules of interpretation to be followed in interpreting Rule 17 of Order 16 CPC are very simple. The provision can be divided into two parts. The first part is discretionary "may" and gives wide and unfettered discretion to decide on case-to-case basis whenever it appears to be just. The court may or may not allow amendment to the proceeding for determining real questions of controversy. The approach of the Court should be liberal and not hypothetical. Therefore, amendment to proceedings is not a right; rather it is in the discretion of the court.
7. The second part is mandatory "shall" and orders the court to accept all the applications necessary for the purpose of determining the real issue between the parties if it finds that the parties could not have raised the issue in spite of the due diligence before the commencement of the trial. However, such discretion must be exercised by applying the judicial mind according to the well- established principles.
8. In Salem Advocate Bar Association, Tamil Nadu V. Union of India & Ors., (2005) 6 SCC 344, the Supreme Court has held that the object of adding the proviso is to prevent frivolous applications which are filed to delay the trial. In Vidyabai and others vs. Padmalatha and another - AIR 2009 SC 1433, Supreme Court has discussed the legislative intent behind bringing the proviso to Rule 17 of Order 6 of CPC. At para 7 of the said judgement, it was opined that the provisions of 4 OW 104 no.132/2004 Order 6 Rule 17 of the CPC are in mandatory form. The court's jurisdiction to allow an application under Order 6 Rule 17 of CPC is taken away unless the conditions precedent therefor are satisfied i.e., the court must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial.
9. Thus, the proviso indicates that once the trial commences no amendments should be allowed except where it is found necessary on account of subsequent events like a change in law subsequent to framing of issues or on account of any fact coming to knowledge of the party, applying for amendment, after framing of the issues which he could not have discovered with due diligence before the issues were framed.
10.The object of rule 17 is to minimize the litigation, minimize the delay and to avoid multiplicity of suits. Therefore it has been included to do justice and not to shut out justice merely on technicality of pleadings. Rule 17 was considered by the Supreme Court in P.H. Patil vs. K.S. Patil1 that "Courts should by the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between parties provided it does not cause injustice or prejudice to other-side.
11.It is clear from the Rule 17 of Order VI of the C.P.C., that no application for amendment is to be allowed after the trial has commenced, unless Court comes to the conclusion that inspite of due diligence, parties could not raise the matter before commencement of 5 OW 104 no.132/2004 the trial. Therefore the Hon'ble Supreme Court and all High Courts have explained what does "commencement of trial" mean.
12.In Vidyabai vs. Padmalatha (supra), it was said that the date on which the issues were framed was the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, would amount to 'commencement of trial.
13.In Baldev Singh vs. Manohar Singh, AIR 2006 SC 2832, it has been held by the Supreme Corut that commencement of trial must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and arguments.
14.The Supreme Court in the case of Revajeetu Builders and Developers vs Narayanaswamy and sons, 2009 (10) SCC 84, by taking into consideration that large number of applications under Order VI Rule 17 CPC are filed and all Courts in India are flooded with such cases and indiscriminate filing of applications of amendments is one of the main causes of delay in disposal of civil cases, formulated some basic principles which shall be taken into consideration while allowing or rejecting the application for amendment.
(i) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(ii) Whether the application for amendment is bona fide or mala fide?
(iii) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(iv) Refusing amendment would in fact lead to injustice or lead to multiple litigation;6 OW 104 no.132/2004
(v) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and
(vi) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
15. The Supreme Court in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, AIR 2006 SC 1663, has held that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. In the case of amendment of a written statement, the Courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case.
16.Order VI deals with the pleadings in general. Rule 2 says that pleadings must be material facts. It must be in concise form. It must not be law or evidence. Therefore, amendment of pleadings must also be of facts and not of law. However, a party can plead law by way of amendment; how the particular law will be applicable to present case and how his rights are affected by such law.
7 OW 104 no.132/2004
17.The Trial Court while dismissing petitioner's application vide impugned order dated 4th June, 2014 has said and held as under:
"It appears from perusal of pleadings that defendant/applicant herein taking inconsistent pleas through amendment. A prayer for amendment of plaint and a prayer for amendment of written statement stand on different footings.
In the instant case mere incorporation of certain facts in the proposed amended Witten statement may not help in just decision of the case as nothing substantial has been brought on record. It appears that such amendment is not necessary for decision of real controversy between the parties in suit.
I have perused the pleadings carefully and the present application in hand also. From the keen perusal of the file it appears that the proposed amendment for incorporation in the written statement will certainly change the nature of the written statement already filed and will certainly effect the trial of the case. Moreover, the present application is certainly time barred being filed after period of limitation and no prayer for condonation of delay is made here. During the course of arguments ld counsel for the applicant/ defendant has placed reliance on AIR 2006 SC 2832, AIR 2007 SC 1663 and AIR 2007 SC 2511. From the careful perusal of the law, cited by ld counsel for applicant/ defendant it has no bearing on the application in hand. Hence, in the light of Supra the present application is dismissed being devoid of any merit."
18.Order impugned would, thus, show that Trial Court has dismissed petitioner's application for amendment of written statement on two main grounds: one, that proposed amendment for incorporation in written statement will certainly change nature of written statement already filed and will certainly affect trial of the case; and second, that application for amendment is certainly time barred being filed after period of limitation and no prayer for condonation of delay has been made.
19.Perusal of petitioner's application seeking amendment of written statement would reveal that he wanted to amend certain paras of 8 OW 104 no.132/2004 written statement and the nature of those amendments would show that the facts to be introduced through amendment should have been very much in the knowledge of petitioner when he filed his written statement. He has sought to amend paras 4, 5, 13, 32 & 34 of the written statement which had been filed by him way back in the year 2001. The facts sought to be incorporated in written statement are such which were in the knowledge of petitioner at the time of filing of his written statement earlier and petitioner appears to have slept over the matter and allowed the proceedings to continue. He should have brought the facts sought to be incorporated in written statement through amendment to the knowledge of the Court at the earliest.
20.The Trial Court has rightly held that petitioner has sought such amendments in written statement which will change the nature of his defense. The amendments sought in the written statement are such which can have the effect of changing the nature of the defense taken and the written statement already filed by the petitioner. Further it will embarrass the trial and delay the disposal of the case.
21.The Supreme Court has in catena of judgments held that amendment of pleadings cannot be allowed if it substantially alters nature of the case or claims involved or defence taken up in written statement is so irrelevant or inconsistent with the defence already taken that it destroys defence already taken. Petitioner cannot be allowed to take such defence in written statement which could have impact of destroying defence already taken.
22.The principle of law is that law does not favour indolent but it favours vigilant. Petitioner filed amendment application after Trial Court 9 OW 104 no.132/2004 commenced the trial and after it had framed the issues. The petitioner would appear to have slept over the matter for a long period and he did not even approach the Court with clean hands. Had he found that he has skipped some important facts in the written statement he should have approached the Court without any delay and should not have waited so long. Amendment so sought in application would certainly result in delay of trial of the case, which cannot be consistent with the interest of justice. The proviso to Rule 17 of Order 6 C.P.C would provide that no application for amendment shall be allowed after the trial has commenced, unless Court comes to the conclusion that in spite of due indulgence the party could not have raised the relevant facts before the commencement of trial. As already noted above the petitioner would appear to have taken the case in a casual manner and has not been diligent.
23.Proviso to Rule 17 of Order VI CPC 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.
24.The Supreme Court in Vidyabai and others v. Padmalatha (supra) has held that the trial shall be deemed to have commenced the date on which the issues are framed and the case is set down for recording of evidence.
25.In the present case, the Trial Court, vide its order dated 22.07.2008, framed the issues and fixed the matter for evidence of Plaintiff/ respondent. So, the trial in the case has commenced and resultantly 10 OW 104 no.132/2004 the Trial Court has rightly dismissed petitioner's application for amendment of written statement.
26.In view of the above, impugned order does not call for any interference. The instant petition is, thus, dismissed.
27.Interim direction, if any, shall stand vacated.
28.Copy be sent down.
(Vinod Chatterji Koul) Judge Jammu 04.04.2024 Ajaz Ahmad Secy Whether approved for reporting? Yes 11 Bir Bahadur Singh 2024.04.18 12:44 OW 104 no.132/2004 I attest to the accuracy and integrity of this document