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2006 DIGILAW 1020 (RAJ)

Arun Maheshwari v. M/s. Grasim Industries Ltd.

2006-03-29

GOVIND MATHUR

body2006
Judgment Govind Mathur, J.-In a suit preferred by the plaintiff-respondent under Order 37, CPC a decree against the petitioner is sought for recovery of the sum of Rs. 18,54,028/-The plaintiff in Para 8 of the plaint averred that Sh. Akhilesh Dubey authorized representative and Officer incharge of the plaintiff-company at its Udaipur Office by a power of attorney is competent to institute suit on behalf of it. The defendant-petitioner in written statement denied the facts stated in Para 8 of the plaint. The trial Court did not frame any issue to the effect as to whether aforesaid Sh. Akhilesh Dubey was having any authority to institute suit on behalf of the company, therefore, the defendant-petitioner preferred an application under Order 14 Rule 5, CPC for framing an additional issue in this regard. The trial Court by its order dated 05.06.2004 rejected the application on the count that the denial made by the petitioner with regard to the averments contained in Para 8 of the plaint is not specific. The defendant-petitioner then preferred an application under Order 6 Rule 17, CPC on 19.07.2004 with view to elaborate the averments contained in Para 8 of the written statement and to make specific denial of the averments contained in Para 8 of the plaint. The trial Court by its order dated 23.07.2004 dismissed the application preferred for seeking amendment in written statement on the count, (i) application was not filed with due diligence (ii) on basis of the same facts an application was earlier filed by the defendant under Order 14 Rule 5, CPC for framing additional issue which was rejected on 05.06.2004, therefore, no new fact was available to the petitioner to maintain the application under Order 6 Rule 17, CPC, hence this petition for writ is filed under Article 227 of the Constitution of India giving challenge to the order above. 2. While giving challenge to the order dated 23.07.2004 it is contended by Counsel for the petitioner that the amendment sought by the defendant as to whether Sh. Akhilesh Dubey was having any authority on behalf of plaintiff-company to institute the suit is a principle question which goes to the root of the matter and such a question is required to be adjudicated by the trial Court, and therefore, such an amendment can be allowed at any stage of the case. Akhilesh Dubey was having any authority on behalf of plaintiff-company to institute the suit is a principle question which goes to the root of the matter and such a question is required to be adjudicated by the trial Court, and therefore, such an amendment can be allowed at any stage of the case. It is further stated that though in the written statement a specific denial was made by the defendant with regard to the authority of Sh. Akhilesh Dubey to institute the suit but the same was not in elaborate terms; therefore, the trial Court by its order dated 05.06.2004 dismissed the application for framing additional issue and looking to that the defendant petitioner considered it appropriate to elaborate the details pertaining to the fact that Sh. Akhilesh Dubey was not having authorisation to institute the suit. 3. To meet the second reason for rejection of the application under Order 6 Rule 17, CPC that is of delay in filling the application it is contended by Counsel for the petitioner that on 05.06.2004 the application under Order 14 Rule 5, CPC was rejected by the trial Court with a finding that the denial of the contents of Para 8 of the plaint was not specific, therefore, the petitioner-defendant preferred the application for amendment on 19.07.2004 for amendment of the written statement, as such there was no delay in filing the application for amendment. In alternative it is contented by Counsel for the petitioner that an amendment in pleadings can be allowed by the Court at any stage if it is necessary to meet the ends of justice and if amendment sought is necessary for proper and effective adjudication of the controversy. According to the Counsel for the petitioner the amendment sought by the defendant goes to the root of the matter being pertaining to the maintainability of the suit, therefore, the Court below erred materially while rejecting the application for amendment of written statement. 4. Per Contra it is contended by Counsel for the plaintiff-respondent that the order impugned does not suffer from any error apparent on the face of record warranting interference of this Court under Article 227 of the Constitution of India. 4. Per Contra it is contended by Counsel for the plaintiff-respondent that the order impugned does not suffer from any error apparent on the face of record warranting interference of this Court under Article 227 of the Constitution of India. It is further contended that in view of the clear position of law that powers under Article 227 are supervisory and not to correct the minor illegalities and irregularities which can be pointed out and agitated by, the party concern while seeking correction by way of filing regular appeal. To substantiate the contention he has place reliance upon the Judgment of this Court in the case of Ghasi Ram vs. Additional District Judge No. 1, Sikar reported in 2004 (2) DNJ (Raj). 584, where in this Court held as under: 5. The petition Under Article 227 of the Constitution of India is not a remedy as a rule or right. Ordinary against the interlocutory orders passed by the civil Court in the civil suit the petition under this provision is not to be entertained and the reason is very obvious that the order is always subject to correction in the regular appeal to be filed by the litigant. Against such orders earlier the revision petition under Section 115 of the CPC were available but after the amendment in the CPC that right has been taken away. The intention of the legislation behind it is that the orders may attain finality at the stage, the litigants may not stall. The finality of the suit by challenging the interlocutory orders. 6. That apart this Court may not justify in exercising its jurisdiction under Article 227 of the Constitution of India in every case of this nature. The Parliament has in its wisdom not provided any appeal or revision against the interlocutory order passed by the civil Court in civil suit. The object is to give finality to the decision at the stage. This Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice where grave injustice would be done unless this Court interferes in the matter." Heard Counsel for the parties. 5. The petitioner while submitting written statement made a denial with regard to having authorisation with Sh. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice where grave injustice would be done unless this Court interferes in the matter." Heard Counsel for the parties. 5. The petitioner while submitting written statement made a denial with regard to having authorisation with Sh. Akhilesh Dubey for lodging the civil suit on behalf of the petitioner-company. In the written statement the defendant stated that "the averments contained in Para 8 are denied, the plaintiff is required to prove the averments so contained." The denial as above was not found a specific one by the trial Court, therefore, if did not choose to frame an issue as to whether Sh. Akhilesh Dubey was having any authority to institute the suit. The defendant-petitioner, therefore, with view to elaborate the reply to the averments contained in Para 8 of the plaint sought amendment in the written statement. The amendment sought is in consonance to the requirements pointed out by the trial Court for making denial of the averments contained in Para 8 of the plaint. In the instant matter the application under Order 6 Rule 17, CPC was filed by the petitioner after rejection of the application under Order 14 Rule 5, CPC to make his pleadings in consonance to the observations made by trial Court while rejecting the application under Order 14 Rule 5, CPC, the amendment sought and the issue so raised in fact goes to the root of the matter. The issue with regard to maintainability of the suit is required to be adjudicated by the original Court and it should not be left for its adjudication in regular appeal. The person who instituted the suit is having such authority or not is a principle issue that is required to be dealt with at earliest forum. 6. It is true that an amendment in the pleading cannot be permitted 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 commencement of the trial but at the same time it is also settled that the procedural law cannot be permitted to frustrate the substantial justice. The power of the Court to grant amendment is quite wide and the discretion vested with the Court in this regard is always required to be exercised with a view to extend and impart substantial justice. 7. At the same time the Court should also be vigilant that no party may use such discretion of the Court only to delay and prolong the proceedings. In the instant matter I do not find that there was any intention of the defendant to cause delay in the proceedings. 8. The contention of Counsel for the respondent that this Court should not exercise its power under Article 227 of the Constitution of India in the present controversy as the order impugned does not suffer from any error apparent on the face of record in my view is not sustainable as I have already stated above that the amendment sought by the petitioner goes to the root of the matter and the same is essential to determine whether the suit itself is maintainable or not. The reliance placed by learned Counsel for the respondent upon the Judgment of this Court in the case of Ghasi Ram (Supra), in fact support the petitioner as in the event if this Court does not interfere in the matter then there will be grave injustice as the defendant shall be debarred from contesting the issue with regard to maintainability of the suit. 9. In view of whatever discussed above this petition for writ succeeds. The order impugned dated 23.07.2004 passed by the learned Additional District Judge No. 3 Udaipur is quashed. The application preferred by the petitioner under Order 6 Rule 17, CPC dated 19.07.2004 is allowed. The petitioner be permitted to make the required amendment in its written statement. A cost of Rs. 5,000/-is imposed upon the petitioner which is required to be paid to the plaintiff-respondent within a period of one month from today.