( Civil Misc Application No. 24673 of 2014) Heard Sri Sharad Pathak, learned counsel fort he revisionist and Mohd. Arif Khan, learned Senior Advocate assisted by Mohd. Aslam Khan for the respondents.
Aggrieved by the order dated 13.12.2010 passed by Judge Small Causes Court/ District Judge, Sultanpur in SCC Suit No. 3 of 2009 ( Monoj Kumar Agarwal and others Vs. Sardar Jaspal Singh and another), present revision has been filed under section 25 of the Small Causes Courts Act.
During the pendency of present revision when the matter was partly heard , an application for amendment under Section 151 CPC and Order 6 Rule 17 CPC has been moved thereby praying that certain amendments as mentioned in the application may be allowed to be incorporated .
Sri Sharad Pathak , learned counsel for the revisionist while pressing the same submits that it is necessary to incorporate the same to resolve the controversy in the present case in this regard he placed reliance on the law as laid down by this Court in the case of Radhey Lal Vs. Special Judge, Bulandshahr and others reported in ALR 1993 (22) page 98 in which it has been held that the revision under Section 25 of the Provincial Small Cause Courts Act,1887 ( hereinafter referred as 'Act') the provisions as provided under Section 151 CPC are available and also on the judgment given by this court in the case of Kunwar Pal Sharma Vs. Special Judge, Mathura and another, ALR 2000(40) page 544 that delay in moving the amendment application in a matter arising out of Act , cannot be a ground for refusing the amendment.
Sri Sharad Pathak, learned counsel for the revisionist further submits that in view of the judgment given by this Court in the case Kashi Naresh Mehrotra Vs. Roop Narayan Chaudhari and others, 2007 (69) AlR 122 that an amendment in the plaint can be allowed at any stage of the proceedings and even in a revision which like an appeal is also a continuation of the suit, so amendment may be allowed.
In addition to above said fact, it is also submitted by Sri Sharad Pathak , learned counsel for the revisionist that in view of the law as laid down by this court in the case of Gopal Krishna Vs. Special Judge, E.C. Act, Kanpur Nagar and others, ALR 2000 (39) page 447, the amendment can be allowed at any stage of hearing because the amendment will hardly cause any prejudice to the respondents, so the amendment as sought by the revisionist in the present case may be allowed.
Mohd Arif Khan, learned Senior Advocate for the respondents while pressing the amendment application submits that amendment which sought is not bona fide one and is being made only to linger on the matter in question when the revision has been heard at length and the plea sought to be brought on record has not been taken at the final stage so the same may be rejected .
I have heard learned counsel for the parties and gone through the record.
In order to decide the said controversy , it is necessary to state the following facts in brief.
Order 6 Rule 17 CPC as exists before 1999 is quoted as under:-
"Order 6 Rule 17:
"17. 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."
The aforesaid provision was omitted by the Civil Procedure Code (Amendment) Act, 1999 Section 16 of the Amendment Act reads as follows:
"16. Amendment of Order 6- in the First Schedule, in Order 6-
"17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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."
It is seen that before the amendment of Order 6 Rule 17 by Act 46 of 1999, the Court has taken a very wide view of the power to amend the pleadings including even the plaint as could be seen from L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., AIR 1957 SC 357: 1957 SCR 438, SCR at 450 and Gurdial Singh V. Raj Kumar Aneja, (2002) 2 SCC 445: AIR 2002 SC 1003.
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.
Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 14 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit 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 the proviso which falls for consideration."
It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC ( Amendment ) Act 2002.
Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amendment of Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic-Rule) 17, as it existed prior to the amendment , was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by the Civil Procedure Code ( Amendment) Act , 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and manifests the absence of due diligence on the part of the appellants dis-entitling them to relief.
In the case of Vidyabai and others Vs. Padmalatha and another(2009) 2 SCC 409 wherein Hon'ble the Apex Court has held as under:-
" By reason of the Civil Procedure Code ( Amendment) Act,2002 ( Act 22 of 2002) Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:-
" Provided that no application for amendment shall be allowed after the trail 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 condition 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.
It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein , is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plain."
Further in the case of North Eastern Railway Administration, Gorakhpur Vs. North Eastern Railway Administration, Gorakhpur Bhawan Das (d) By L.Rs.2008 (3) ARC 911 wherein Hon'ble Supreme Court has held as under:-
"In so far as the principles which govern the question of granting or disallowing amendments under Order VI, Rule 17 C.P.C, ( as it stood at the relevant time) are concerned, these are also well settled. Order VI , Rule 17 C.P.C. Postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgaonda Shidgonda Patil and others, AIR 1957 SC 363, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.( Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166: 1990 SCFBRC 134)".
Thus in nutshell , the provisions of amendment of pleading provided under Order 6 Rule 17 CPC as exits today can be summarized and crystallized as under:-
" Order 6 Rule 17 of the Code deals with amendment of pleadings . By Amendment Act 46 of 1999, this provision was deleted . It has against 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 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. The proviso, to some extent, curtails absolute discretion to allow amendment to any stage. Now , if application is filed after commencement of trial, it has to be shown that in spite of the due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous application which are filed to delay the trial. There is no illegality in the provision."
Reverting to the facts of the present case , it is not disputed rather admitted the facts that the present revision has been filed under Section 25 of the Act against the judgment and decreee dated 13.12.2010 passed by Judge Small Causes Court/ District Judge, Sultanpur in SCC Suit No. 3 of 2009 ( Monoj Kumar Agarwal and others Vs. Sardar Jaspal Singh and another).
On 16.1.2014 Sri Sharad Pathak, learned counsel for the revisionist had started the hearing in the matter in question on his request matter adjourned for 17.1.2014 thereafter due to some unavoidable reasons and circumstances, Sri Sharad Pathak, learned counsel for the revisionist was not able to conduct the matter, on his request matter has been adjourned time and again .
Today matter when the matter taken for hearing on behalf of the revisionist an application for amendment under Section 151 CPC and Order 6 Rule 17 CPC has been moved .
From th persual of the application in question , the position which emerge out that revisionist/tenant had sought amendment in the present revision which consists of two parts ; (a) by means of paras no.1 to 5 of the amendment application, certain typographical error are sought to be amended/deleted in the memo of revision, (b) by para no.6 certain amendments are sought to be incorporated in the revision after ground no.16, as grounds no.16(a) to 16(h).
So far as the amendment which sought by the revisionist by way of facts as stated in para nos. 1 to 5 of the amendment application in question is concerned , the same is trivial in nature by which certain typographical error sought to be corred /deletion in the revision, so in the interest of justice , the same is allowed.
Next point is to be considered whether the amendment as prayed by the revisionist in the memo of revision after ground no. 16 , as grounds no. 16(a) to 16(h) be allowed or not?
In order to decide the said controversy , it will be appropraite to go through to the Proviso to Order 6 Rule 17 CPC 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."
The proviso aforesaid was added by Amended Act 22 of 2002. The words "after the trial has commenced, unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial", would assume some importance in deciding the present application.
The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Further, once the trial commences on the known pleas, it will be very difficult for any side to reconcile. Yet, under the same proviso, an exception is made where it is shown that in spite of diligence, he could not raise a plea. Therefore, it is not a complete bar nor shuts out entertainment of any later application. Otherwise, the proviso would be in direct conflict to the expression "at any stage" used in the Rule. Even the object as enunciated in the amending Act, is to allow either party to alter or amend his pleadings, where it is satisfied that either new facts have come into existence subsequent to the institution of the suit. The restriction imposed under this amended provision could at the most relate to the facts, events and circumstances which are existing or available either on the date of filing the suit or on the date of filing of the pleading i.e., written statement. It further goes in support that the Court is always entitled to take note and allow any amendment in regard to any subsequent event. Therefore, the said provision would not apply for addition to the pleadings of any new facts or material based on a subsequent event.
Further, the words "after the trial has commenced" and the words "before commencement of the trial" would indicate that the proviso would come into operation, if the application for amendment of the pleading is filed after the commencement of trial. Thus, in all caution for the applicability of the proviso a cautious distinction has been drawn between pre-trial amendments and the post trial amendments.
The words in the proviso under Order 6 Rule 17 CPC for deciding the point in issue are " commencement" and "trial".
The word "commencement" in the Law of Lexicon by Sri Bakshi defines as under :-
"Commencement:- In the "Words and Phrases" (Permanent Edition) Vol. 42-A. at page 171, under the head "Commencement", it is stated "A 'trial' commences at least from the time when work of empanelling of a jury begins" Union of India v. Madanlal Yadav, ."
While dealing with the word trial both in the same book it is mentioned as under :-
"TRIAL:- It is, according to Wharton's Law Lexicon 'the examination of a cause civil or criminal, before a Judge who has jurisdiction over it according to laws of the land". According to the Oxford Dictionary the meaning of the word given under the heading 'trial' is: (1) The examination and fixation of a cause by a judicial tribunal, determination of the guilt or innocence of an accused person by a Court; (2) The determination of a person's guilt or innocence, of the righteousness of his cause, by a combat between the accused. The explanation of the same in Stroud on the authority of the observation of Filed J., in Gath v. Howarth, (Stroud's Judicial Dictionary, Page 3092) is that it is 'the conclusion by a competent Tribunal of the questions in issue in legal proceedings whether civil or criminal", Again in Bouvier's Law Dictionary the term is stated on the authority of a decision in U.S. v. Curtis Bouviers Law Dictionary, page 3320 to mean 'the examination before a competent Tribunal according to the laws of the land of the facts put in issue in a cause for the purpose of determining such issue' Moreover, the word 'try' or trial is not limited to trial of offence, but includes a larger area and used in regard to any legal proceedings and in regard to any issue whether it be civil or criminal. The word 'try' or 'trial' would not be limited only to a restricted meaning i.e. trial of offence.
It is no doubt difficult to define the term 'trial' precisely; as a definition given for the purposes of one context may not be very satisfactory for another. Broadly speaking, however, a trial is the examination by the competent Court of the facts or law in dispute or put in issue in a case. It is the in jurisdictional examination of issues between the parties whether they are of law or of fact.
The beginning of a trial therefore, means the first date when a Court or a Tribunal begins on such judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law.."
Thus, in view of the above said discussion, it can be held that by CPC (Amendment) 2002 a new proviso has been added to the rule, namely that no application for amendment of the pleadings 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.
So after the trial of the case has commenced, no application for amendment of the pleadings shall, be allowed 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. Proviso would not apply to amendment of pleadings filed prior to enforcement of Act 22 of 2002.
And 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 diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial (See. Saleem Advocate Bar Assocn. Vs. Union of India, AIR 2005 SC 3353 (3362), Vidyabai and others Vs. Padamlatha and antoher, 2009 (2) SC 409) Keeping in view the above said facts as well as the statement given by Sri Sharad Pathak, learned counsel for the revisionist that at the time of filing of revision ,revisionist has not given advise to take plea/ grounds in the memo of revision which are sought to be taken by way of amendment as ground no. 16(a) to 16(h) in the memo of revision, available to him at the time of filing of revision. In view of the said facts that the said act dos not come within the ambit and scope of the due diligence which is one of the important parameter now to be considered while allowing an amendment keeping in view the proviso to order 6 Rule 17 CPC . Further , the said grounds which are sought to be brought by way of amenedment there is neither any plea nor any foundation in this regard before the trial court which is clearly established from the material on record, cannot be allowed to be incorporated by way of amendment in view of the law laid down by Hon'ble the Apex Court in the case of Ramesh Chandra Sharma Vs. Udham Singh Kamal and othrs, (1999) 8 SCC 274 , Gopichand Gupta Vs. Jain Plastic Industry, 2002 (5) SCC 274 and Andhra Pradesh State Electricity Board and others Vs. J. Venkateswara Rao and others (2003) 1 SCC, 116, thus in view of the above said facts the amendment as sought by the revisionist at the stage of final hearing , cannot be allowed to be incorporated in the revision as such the revisionist cannot derive any benefit from the law as cited on his behalf in the cases of Kunwar Pal Sharma ( Supra) ,Gopal Krishana (Supra) and Kashi Naresh Mehrotra ( supra).
So far as the law which has been cited on behalf of the revisionist as laid down in the case of Radhey Lal ( Supra) which lays down that the provisions of Section 141 or Section 151 of the Act are attract in the matter arising out of Section 25 of the Provincial Small Cause Courts Act, the said position is not in dispute. However in the instant case, said point has got not relevancy.
For the forgoing reasons , the amendment as sought by the revisionist in order to bring the plea as stated in para no .1 to 5 of the amendment application , are allowed to incorporate in the revision by the next date of listing and the plea/ grounds sought to be incorporated by way of amendment in the revision after ground no. 16, as ground no. 16(a) and 16(h) are refused .
With the above observations, the application of amendment is allowed partly.
List in the next week.
Interim order shall continue till the next date of listing.
Order Date :- 5.3.2014 dk/