Animadverting upon the order dated 20.08.2008, passed by the learned II Additional District Munsif, Vriddhachalam, in I.A.No.2682 of 2007 in O.S.No.643 of 2005, this civil revision petition is focussed.
2. Heard the learned counsel for the respondent. Learned counsel for the petitioner is absent. However, the learned counsel for the respondent prayed for an adjournment. On perusal of the records, I am satisfied that this being a revision, no more adjournment is required and I proceed to dispose of it on merits.
3. A summation and summarisation of facts which are absolutely necessary and germane for the disposal of this revision would run thus:
The revision petitioner/plaintiff filed the O.S.No.643 of 2005 seeking recovery of money based on a suit promissory note. The defendant entered appearance and filed written statement. Thereupon the trial commenced. On the side of the plaintiff, three witnesses were examined and cross examination was also conductede. In such circumstances, the plaintiff filed I.A.No.2672 of 2007 for amending the plaint and it was objected to by the respondent/defendant and the trial Court dismissed it. Being aggrieved by and dissatisfied with the dismissal order of the lower Court, this revision is focussed on various grounds.
4. A bare perusal of the typed set of papers and the grounds of revision including the order of the lower Court would exemplify and demonstrate that in the said pronote suit already trial commenced and as many as three witnesses have been examined and those witnesses during cross examination candidly and categorically stated that the pronote was written only at Vriddhachalam and not at Pudukuraipet as set out in the plaint as well as in the pronote; subsequently, in order to suit the oral depositions of the witnesses on the plaintiff's side, the plaintiff has chosen to file I.A. so as to correct the averments in the plaint which is totally untenable and quite antithetical to the existing legal position.
5. My mind is redolent and reminiscent of the following decision of the Hon'ble Apex Court reported in 2008(4) TLNJ 588(CIVIL)- VIDYABAI AND OTHERS VS. PADMALATHA AND ANOTHER, certain excerpts from it would run thus:
"7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI 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 therefore 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.
8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfil the said pre-condition. 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 proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to 'commencement of proceeding'.
9. Although in a different context, a Three-Judge Bench of this Court in Union of India and others v. Major General Madal Lal Yadav (Retd) ([1996] 4 SCC 127) took note of the dictionary meaning of the terms 'trial' and 'commence' to opine:
19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.
The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.
10. Order XVIII, Rule 4(1) of the Code reads as under:
"4.Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and c5opies thereof shall be supplied to the opposite party by the party who claim for evidence:Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court."
11. This aspect of the matter has been considered by this Court in Ameer Trading Corpn.Ltd.v. Shapoorji Data Processing Ltd.([2004] 1 SCC 702) in the following terms:
"15.The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which "evidence" is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit.
16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the Court or the Commissioner appointed by it."
In Kailash v. Nanhku ([2005] 4 SCC 480), this Court held:
"13. At this point the question arises:when does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word 'trial'.
We may notice that in Ajendraprasadji N.Pandey and Another v. Swami Keshavprakeshdasji N. And Others ([2006] 12 SCC 1), this Court noticed the decision of this Court in Kailash (supra) to hold:
35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.
36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f.1.7.2002. It had a provision permitting amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration."
6. It is therefore crystal clear that after the commencement of trial and that too in a pronote suit when witnesses have stated that pronote was executed at Vriddhachalam, whereas the averments in the plaint and the specification in the pronotoe are to the contrary, the plaintiff cannot be allowed to correct the plaint so as to get over the oral deposition of the witnesses on the plaintiff's side. If such amendments are allowed, certainly it will lead to travesty of justice. As such, I could see no merit at all in this revision filed by the revision petitioner.
G.RAJASURIA, J.
gms Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
04.02.2009 gms To II Additional District Munsif, Vriddhachalam.
C.R.P.(PD)No.4179 of 2008