1. Heard Sri Manish Goel, learned counsel for petitioner and Sri Atul Dayal, learned counsel for respondent.
2. Sri Dayal, learned counsel for respondent stated at the bar that he does not propose to file any counter affidavit and the matter may be heard and decided at this stage under the Rules of the Court on the basis of material on record. Accordantly, I proceed to decide this case at this stage finally with the consent of learned counsels for parties under the Rules of the Court.
3. The writ petition is directed against the order dated 9.7.2012 passed by Addl. District Judge, Court No. 8, Saharanpur dismissing petitioner's SCC Revision No. 56 of 2011 and confirming Trial Court's order dated 26.9.2011 passed in SCC Suit No. 60 of 2001 allowing Application No. 98-C of the plaintiff-respondent permitting an amendment in the plaint on the ground that such amendment would not change the nature of the suit and, therefore, can be accepted on payment of a cost of Rupees one hundred.
4. The facts giving rise to the present dispute, in brief, are that plaintiff-respondent filed Small Cause Suit No. 60 of 2001 against the petitioner-defendant, Suraj Prakash, seeking his eviction from the shop in which petitioner-defendant is a tenant. The eviction of petitioner-defendant was sought on the ground that he has committed default in payment of rent on account whereof tenancy has been terminated and he is liable for ejectment. The suit was filed vide plaint dated 3/18.7.2001. The suit proceeded for trial and statement of Iftikar Ahmad, P.W. 1 was recorded on 19.10.2002 (Annexure 6 to the writ petition).
5. Petitioner-defendant after receiving the notice put in his appearance and filed written statement dated 1.10.2003 contesting the suit. During the pendency of suit, Mutwalli of plaintiff-respondent-Waqf died whereupon an application for substitution/impleadment was filed by Iftikar Ahmad, son of erstwhile Mutwalli Late Swalehabad alleging himself to be the Mutwalli of the Waqf. The application was contested by petitioner-tenant but the Trial Court allowed the same by order dated 20.9.2006 and the revision filed thereagainst was dismissed on 10.1.2008.
6. The petitioner-tenant brought the matter before this Court in Civil Misc. Application No. 336 of 2008 (under Article 227 of the Constitution) wherein an interim order was passed on 11.4.2008 to the following effect:
"Heard learned counsel for the parties.
This writ application under Article 227 of the Constitution of India filed by the tenant challenging the orders passed by the Judge, Small Causes Court allowing the amendment/Substitution application filed by the plaintiff-landlord.
The property is that of a Waqf. The applicant has not paid any rent since 1996. A prayer was made on behalf of the applicant that entire outstanding rent up to date shall be deposited within a period of two months from today and he shall also pay regular monthly rent.
In such view of the matter, two months' time is allowed to the applicant to deposit the entire outstanding arrears of rent with the Judge, Small Causes Court, Saharanpur within two months from today. In case, the amount is deposited, the landlord is at liberty to withdraw the same.
List/put up this case on 9th July, 2008.
In the meantime, Counter and rejoinder affidavit may be exchanged between the parties. Till the next date of listing, proceedings of the JSCC Suit No. 60 of 2001 shall remain stayed, subject to the condition that applicant deposits the entire outstanding rent up to date within two months from today and continues to pay regular monthly rent. In case of default, the interim order shall stand vacated and the proceedings shall be resumed by the Small Causes Court."
7. Record of the above case shows that the above interim order ceased on 30.11.2010 was not extended.
8. Plaintiff-respondent, thereafter, on 17.8.2011 moved an application under Order 6 Rule 17 read with Section 151 C.P.C. in respect to the rate of damage etc. The only ground of seeking amendment at this stage mentioned in the application is that same would not result in changing the nature of suit. The amendment was contested by petitioner vide his objection dated 12.9.2011 but rejecting the objection, the Trial Court allowed the Amendment by order dated 26.9.2011 and revision thereagainst has been dismissed by the Revisional Court on 9.7.2012 confirming the Trial Court's order.
9. Sri Manish Goel, learned counsel for petitioner contended that once the trial has commenced, no amendment can be allowed by virtue of proviso to Order 6 Rule 17 C.P.C. unless the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before commencement of Trial and not for any other reason. The order passed by Trial Court in this case allowing the amendment on 26.9.2011 is clearly in total disregard of the aforesaid provision and this aspect having not been addressed to by the Revisional Court also, in its correct perspective, even the revisional order is patently illegal and liable to be set aside. He also contended that the Revisional Court has looked into the authorities of the Apex Court which refer to order 6 Rule 17 as it stood initially and has ignored subsequent legislative changes made by Code of Civil Procedure (Amendment) Act, 1999 (hereinafter referred to as "Amendment Act, 1999") and Code of Civil Procedure (Amendment) Act, 2002 (hereinafter referred to as "Amendment Act, 2002"). He also submitted that the amendment if allowed in the present case would result in ouster of the suit from the purview of Small Cause Court and, therefore, such an amendment, even otherwise, ought not to have been allowed.
10. Sri Goel, in support of his above submissions, relied on Apex Court decision in Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji N. AIR 2007 SC 806.
11. Per contra, learned counsel for plaintiff-respondent contended that the amendment sought in the present case was only relating to the mesne profits and would not have changed the nature of suit. Mere fact that it could have resulted in change of jurisdiction, by itself, would not be a ground to refuse amendment, and, therefore, he contended that orders passed by Courts below on the amendment sought by plaintiff-respondent deserve no interference in exercise of power under Article 226/227 of the Constitution. He also placed reliance on Apex Court decision in Lakha Ram Sharma Vs. Balar Marketing Private Limited (2008) 17 SCC 671. The power of amendment of the pleadings was conceived and it was held that the amendment should be allowed liberally with certain inbuilt restrictions like where it does not change the nature of proceedings or that it does not revive a time barred relief or where it does not result in an irreparable loss and prejudice to the other side.
12. Time and again, Apex court has given a very wide scope of amendment of pleadings but there has been an intervention of Legislature with an object for preventing dilatory tactic to delay the disposal of the cases and in that view of the matter, the first intervention came by virtue of Amendment Act, 1999 whereby in Order 6, Rules 17 and 18 were omitted. However, this complete omission did not found favour with the litigating people and realizing the great hardship, Legislature again intervened vide Amendment Act, 2002 whereby Rule 17 was incorporated but with a restricted provision in the shape, a proviso added therein. Order 6 Rule 17 came to be inserted by Amendment Act, 2002 reads as under:
"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:
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"
13. A bare perusal of above Rule 17 would show that an amendment is permissible by the Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining the real question in controversy between the parties. It gives very wide power to the Court for allowing amendment but the proviso added therein restricts such wide power of the Court simultaneously by observing that no application for amendment shall be allowed after the Trial has commenced unless the Court comes to the conclusion that in spite due diligence, party could not have raised the matter before the commencement of Trial. Now there is an embargo on an application for amendment to be allowed once the Trial has commenced. The embargo is complete. The only scope, thereafter is that the Court comes to the conclusion that despite due diligence such matter could not have been raised by the parties concerned before the commencement of Trial. Therefore the party seeking amendment, after commencement of Trial, is bound to first plead and then prove that the amendment it has sought could not have been pleaded by it before commencement of Trial despite its due diligence. After the Trial has commenced, an amendment cannot be sought and allowed as a matter of course unless conditions of due diligence is found to have existed therein since it is prohibited by proviso to Order 6 Rule 17 C.P.C.
14. Before this Court it is not disputed by learned counsel for parties that the Trial has commenced inasmuch the suit being Small Cause Suit, there is no stage of framing of issues separately and hence the evidence has commenced i.e. plaintiff's evidence has already been recorded. The Apex Court in Kailash v. Nanhku AIR 2005 SC 2441 has already held that a Trial is deemed to have commenced when the issue are settled and the case is set down for recording of evidence. This view has been followed in Baldev Singh and others Vs. Manohar Singh and another (2006) 9 SCC 498 and Ajendraprasadji N. Pande (supra). The Apex Court has also held in Ajendraprasadji N. Pande that Order 6 Rule 17 C.P.C. as amended by Amendment Act, 2002 does not permit an amendment once the Trial has commenced unless despite due diligence, matter could not be raised before the commencement of Trial. The Court held that provision is mandatory and precludes a party to seek amendment of his pleadings once the Trial has commenced unless the requirement of proviso itself is satisfied. In taking this view, the Apex Court also referred to and relied on its earlier decision in Salem Advocate Bar Association Vs. Union of India AIR 2005 SC 3353.
15. To the same extent, is the view taken by this Court in Rajkumar Gurawara Vs. M/s. S. K. Sarwagi and Co. Pvt. Ltd. AIR 2008 SC 2303 and Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others 2009 (1) SCC 84. This Court has also followed the above exposition of law by referring to Revajeetu Builders (supra) in Sri Krishan Mittal Vs. Upper District Judge C.N. 10 Bijnor and others (Writ A No. 46709 of 2012) decided on 13.9.2012.
16. In the present case, the parties could not dispute that the Trial has commenced long back. Neither in the application the plaintiff-respondent ever pleaded that despite due diligence he could not have raised the issue which he has sought by virtue of amendment earlier nor there is any such finding recorded by the Trial Court while allowing the amendment. Unfortunately, even the Revisional Court has not looked into this aspect of the matter. The impugned orders passed by Courts below, therefore, are wholly illegal and cannot sustain.
17. In the result, writ petition is allowed. The orders dated 26.9.2011 (Annexure 2 to writ petition) and 9.7.2012 (Annexure 1 to writ petition) impugned in this writ petition are hereby set aside.
18. Trial Court is directed to proceed with the matter and decide JSCC Suit No. 60 of 2001 expeditiously, preferably within six months from the date of production of certified copy of this order.
Dt. 9.10.2012 PS