Anim-adverting upon the order dated 21.4.2008 passed in I.A.No.433 of 2008 in O.S.No.147 of 200s by the Additional District Munsif, Tindivanam, this civil revision petition is filed.
2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of the civil revision petition, could be portrayed thus:
The respondent, as plaintiff, filed the suit O.S.No.147 for 2002 seeking the following reliefs:
@m/ tHf;Fr; brhj;J thjpf;F chpikahdJ vd;W tpsk;g[if bra;a[k; gof;Fk;. mijbahl;o thjp mikjpahd Kiwapy; mDgtpj;J tUtij gpujpthjpfs; vt;tpj jila[k;. ,il";rYk; gpujpthjpfs; bra;ahky; ,Uf;f epue;ju jila[j;jpat[ gpwg;gpf;Fk; gof;Fk;/ M/ tHf;F brhj;J thjpf;F chpikahdJ vd;W tpsk;g[if bra;a[k;gof;Fk;. Mjpy; tHf;Ff;F g[d;g[ gpujpthjpfs; mj;JkPwp gpuntrpj;J fl;oapUf;Fk; tPl;oid ,oj;Jtpl;L fhypkidahf xg;gilf;Fk; gof;Fk;.
,/tHf;F njjp Kjy; xg;g[jy; fhyk; tiuapy; thlif ec&;lk; bfhLf;Fk;gof;Fk;. mij jdp kDtpy; eph;zak; bra;a[k;goa[k;
(I/V/1043-04 njjp 30/9/05 apd;go jpUj;jk; bra;ag;gl;lJ) ,t;tHf;fpd; jd;ikapy; khl;rpkpF ePjpkd;wj;jhh; mth;fSf;F epahakhfj; njhd;Wk; ,uj ghpfhu';fs; fpilf;Fk; gof;F ,jpy; xU jPh;g;g[k;. jPh;g;ghiza[k; gpwg;gpf;Fk; gof;Fk; thjp tzf;fkha; ntz;Lfpwhh;/@ The petitioners/defendants filed the written statement. When the trial was proceeding on the petitioners/defendants' side, the respondent/plaintiff has chosen to file the I.A.No.433 of 2008 seeking the following amendments:
"5. . . . vdJ tHf;Fiuapd; brhj;J tpguj;jpy; rh;nt vz;/218-7 y; 0.08 brd;l; vd;W ,Ug;gij giHa rh;nt vz;/217 ,jw;F g[jpa rh;nt 497-8 vd;W jpUj;jk; bra;a ntz;oaJ mtrpaKk;. EpahaKkha; ,Uf;fpwJ/ ,e;j tHf;F 01/07/2002 f;F Kd;g[ jhf;fy; bra;ag;gl;lJ/ vdnt rl;lg;go jil vJt[k; ,y;iy/ rh;nt vz; khWtjhy; brhj;J khwtpy;iy/ g[jpa tHf;Fk; my;y/ vdnw nkw;go rh;nt bek;giu jpUj;JtJ vd;gJ ePjpapd;ghw;gl;ljhFk;/ nkw;go rh;nt vz;iz jpUj;jk; bra;gjhy; ahUf;Fk; ve;jtpjkha ,Hg;g[k; fpilahJ/ nkw;go rh;nt vz; jl;lr;R gpiHahy; Vw;gl;litahFk;/ ,J kd;dpf;ff;Toa rpW gpiHahFk;/@ The trial Court allowed the said I.A. Being dissatisfied with and aggrieved by the said order, this revision petition is focussed on various grounds.
3. The learned counsel for the revision petitioners/defendants would develop his argument to the effect that this is not a simple case of changing the survey number from 218/7 to 217 due to typographical error, but it is a case of changing the entire cause of action; the entire defence was based on the said survey number only which is already found specified in the plaint schedule.
4. Whereas the learned counsel for the respondent/plaintiff would develop his argument that he is yet to verify as to whether the patta in favour of the respondent/plaintiff's predecessors refers to Survey No.218/7 or 217.
5. In my considered opinion such a doubt is unwarranted at this stage for the reason that P.W.1-Murugesan, in his deposition itself clearly stated that the patta in favour of the respondent/plaintiff's predecessors refers to Survey No.218/7. In this factual matrix, I am of the view that it is not a simple case of getting corrected the typographical error. If there is only a clerical mistake or typographical error, the same could be corrected, dehors Order 17 Rule 6 of C.P.C. also. However, at this juncture, my mind is reminiscent of the following decision of the Honourable Apex Court:
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 fulfill 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 copies 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 17mby 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. A bare perusal of the recent judgement of the Honourable Apex Court would demonstrate and exemplify that after the commencement of the trial, the question of pressing into service Order 6 Rule 17 of C.P.C does not arise at all. As per the said dictum, it is crystal clear that the lower Court, ignoring the mandates contemplated under Order 6 Rule 17 of C.P.C, simply allowed it; wherefore, on that technical ground itself, the order of the lower Court is liable to be set aside.
7. Even on merits of the case, I would like to observe that the averments in the plaint as well as oral evidence adduced so far on the side of the respondent/plaintiff proceeded on the line that the respondent/plaintiff's predecessors in title were in possession and enjoyment of Survey No.218/7. However, aftr the commencement of trial on the petitioners/defendants' side, the respondent/plaintiff sought to introduce a new cause of action virtually that the respondent/plaintiff's predecessors were in possession and enjoyment of Survey No.217, over which, the petitioners/defendants are claiming title and to that effect they filed written statement and also adduced evidence partly. Hence, in such a case, it is quite obvious that allowing of such amendment by the lower Court was totally against law and accordingly, the order dated 21.4.2008 passed in I.A.433 of 2008 is set aside.
8. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.