Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 147 (GAU)

Jagnabalkya Chakraborty v. Bidyarthi Chakraborty

2006-02-10

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. The short but interesting question which falls for consideration in this writ petition is whether the petitioner can invoke the general power of amendment of a Civil Court under Section 153 of the Code of Civil Procedure, when his application for amendment of his pleadings is barred by the newly added proviso to Order VI, Rule 17? 2. The relevant facts generating the present controversy may be narrated at the very outset. The petitioner as the plaintiff instituted T.S. (Partition) No. 11 of 2005 before the Ld. Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala, against the respondents for a declaration of his share in the suit land on the strength of the last Will and Testament of the deceased Suruchi Chakraborty, etc. The suit has been contested by the respondents. When the trial has already commenced and the petitioner was called upon to adduce his evidence, he filed an application under Order VI, Rule 17 to amend his plaint as per item Nos. (I), (II) and (III) in the Schedule to the application. The Ld. Civil Judge by the impugned order allowed the prayer for amendment in respect of item Nos. (I) arid (II), with which we are not currently concerned, and rejected the prayer concerning item (III). The proposed amendment in item No. (III) relates to correction of the date of execution of the Will and Testament from "22.5.1982" to "16.4.1997" appearing in item No. (IV) of relief portions of the plaint. According to the petitioner, the date of execution of the document in question is actually 16.4.1997 and was wrongly mentioned as "20.5.1982" due to typographical mistake. 3. Mr. P.R. Barman, the learned counsel for the petitioner, admits that the application for amendment was filed after the commencement of the trial and further that the mistake was also one which could have been detected before the commencement of trial by exercise of due diligence, but he contends that even then, in genuine and appropriate cases, the general power of amendment under Section153 can always be invoked by courts to prevent miscarriage of justice and, in that view of the matter, the provision of Order VI, Rule 17 as amended in 2002 cannot be said to be exhaustive of all the powers of courts to amend pleadings. He further submits that the object of insertion of the proviso to Order VI, Rule 17 is merely to expedite the hearing of suits and not to scuttle the same as otherwise this will result in gross failure of justice to the party applying for amendment. According to him, the retention of the general power of amendment engrafted in Section 153 even after the aforesaid amendment abundantly shows the intention of the Legislature to clothe the Courts with the power to amend or to allow the party to amend, the pleadings in genuine cases not covered or contemplated by the newly inserted proviso to Order VI, Rule 17. He places strong reliance on the observation of the Apex Court in Goverdhan Dass v. Darshan Singh AIR 1969 SC 372 to buttress his contentions. Coming to the fact of this case, he submits that the proposed amendment has been occasioned by bona fide inadvertence in the course of typing, will not alter the nature of the suit, is really necessary to decide the real controversy involved in the suit and will not prejudice the respondents. He, therefore, contends that the impugned order to the extent it disallowed the amendment in question cannot be sustained in law, and is liable to be set aside. 4. Mr. K.N. Bhattacharjee, the learned senior counsel for the respondents, strongly opposes the amendment application and supports the impugned order. According to the learned senior counsel, the newly inserted proviso to Order VI, Rule 17 is indicative of the intention of the Legislature to confine all the powers of amendment of pleadings in Order VI, Rule 17 and Section 153 should be read down accordingly, and so read, it can no longer be held that a party can take recourse to Section 153 when his application for amendment is not permissible by the proviso to Order VI, Rule17. In other words, his submission is that Order VI, Rule 17 is exhaustive of all the powers of courts for amendment of pleading by parties to a suit. Any other construction of Order VI, Rule 17 as it now stands will, he further contends, defeat the object of the amendment, namely, to expedite the disposal of suit and to prevent delaying tactic by an unscrupulous litigant, and will also amount to judicial legislation, under the guise of statutory interpretation. Any other construction of Order VI, Rule 17 as it now stands will, he further contends, defeat the object of the amendment, namely, to expedite the disposal of suit and to prevent delaying tactic by an unscrupulous litigant, and will also amount to judicial legislation, under the guise of statutory interpretation. It is further submitted by the learned senior counsel that once the trial has commenced, a party is absolutely barred by the newly added proviso from amending his pleading unless he satisfies the Court that the matter sought to be raised was not one which could have detected by due diligence. According to the learned counsel, the instant case is one in which the mistake sought to be corrected could have easily been detected by the petitioner had he taken the minimum pains of going through his pleading at or just before the framing of issues by the trial Court. He, therefore, submits that this is not a fit case for interference by this Court and that the Writ Petition is liable to be dismissed with costs. 5. Before proceeding further, it may be appropriate to refer to Section 153, Order VI, Rule 17 prior to its amendment in 2002 and Order VI, Rule 17 as amended in 2002 of the code, which read, thus: 153. General power to amend. - The Court, may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. Order VI, Rule 17 (old) 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; Order VI, Rule 17 (as amended in 2002) 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. 6. 6. A cursory glimpse of Order VI, Rule 17 as it stands prior to its amendment will show that amendment of the pleadings may be allowed by the court at any stage of the proceeding if the amendments are really necessary for the purpose of determining the real questions in controversy between the parties. However, the newly added proviso thereto curtails the power of a Court to allow amendment of the pleadings after the commencement of the trial except where the Court concludes that the amendment being proposed could not have been raised before the commencement of the trial despite exercise of due diligence by the party concerned. A plain reading of the newly added proviso leads me to one and one conclusion, namely, if the matter sought to be raised in the proposed amendment are those which could have been detected by the party by the exercise of due diligence before the commencement of the trial, a court is prohibited from allowing such amendment once the trial has commenced. Section 153, however, confers upon the court the general power to amend defects and error in "any proceeding in a suit" and to make "all necessary amendments" for the purpose of determining the real questions in controversy between the parties to the suit. It is significant to note that this power of amendment conferred upon a civil court remains untouched even after the insertion of the said proviso in Order VI, Rule 17. The terms "proceeding" in Section 153 is held to mean "any application to a court of justice, however, made for aid in the enforcement of rights, for relief, for redress of injuries, for damages or for any remedial object". This being the position, there is obviously an inconsistency or repugnancy between the newly amended Order VI, Rule 17 and Section 153. If the contention of the learned counsel for the petitioner is accepted, prima facie, the very object of the insertion of the proviso will be rendered otios, for a party, whose application for amendment is barred by this proviso, can always take recourse to Section 153 thereby restoring the status quo ante. On the other hand, if the contention of the learned senior counsel is correct, then the general power of amendment of pleadings conferred upon courts will be a "dead letter" or "useless slumber". On the other hand, if the contention of the learned senior counsel is correct, then the general power of amendment of pleadings conferred upon courts will be a "dead letter" or "useless slumber". It is a cardinal rule of interpretation of statute that the Legislature is deemed not to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons. This reminds me of what the Apex Court says in Sangram Singh v. Election Tribunal, [1955] 2 SCR 1 16. Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its end: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of Sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. 7. The object of insertion of the proviso to Order VI, Rule 17 is apparently to expedite the hearing and not to scuttle the same. It is said time and again that all rules of procedure are the handmaids of justice. In an adversarial system, no party should ordinarily be denied the opportunity of presenting his case in the process of justice dispensation. As observed by the Apex Court in State of Punjab v.Shamlal Murari in [1976] 2 SCR 82, processual law is not to be tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaids and not the mistress, a lubricant, not a resistant in the administration of justice. In my opinion, the retention of this general power of amendment by the Legislature even after the amending Order VI, Rule 17appears to be to confer residual power to a court to mitigate the rigours of the newly added proviso to Order VI, Rule 17, among Others, so as not to render the courts helpless to meet extraordinary situations when confronted by genuine cases to prevent grave miscarriage of justice. The rule of interpretation requires that while construing two inconsistent, or, obviously repugnant, provisions of a statute, the courts should endeavour to so construe the provisions as to harmonise them so that the purpose of the statute may be given effect to and both the provisions may be allowed to operate without rendering either of them otiose. This is called the principle of harmonious construction. This principle has been succinctly explained by the Apex Court in Sultana Begum v. Prem Chand Jain AIR 1997 SC 1006 On a conspectus of the case-law, the following principles are discernible: (1) It is the duty of the courts to avoid a head-on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them. (2) The provisions of one section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them. (3) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of "harmonious construction". (4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as "dead letter" or "useless lumber" is not harmonious construction. (5) To harmonise is not to destroy any statutory provisions or to render it otiose. 8. Though the provisions of Order VI, Rule 17 and Section 153 are quite inconsistent, or, repugnant to each other, we must avoid "head-on clash" and must give effect to both unless such reconciliation is impossible. In a given case, a party, whose prayer for amendment of his pleadings cannot be allowed since the proposed amendment is beyond the ambit of the said provisio, may, nevertheless, be permitted by a court under Section 153 for bona fide reason provided the same is absolutely necessary for determining the real issue involved in the suit and the court is satisfied from the proceeding on record that the party seeking amendment is not indulging in dilatory tactics to stall the proceeding. In such cases, the court may impose reasonable costs to compensate the opponent. But, I repeat, this power must be used sparingly and only in exceptional circumstances to prevent grave miscarriage of justice as, otherwise, the very object of inserting the new proviso would be defeated. In my judgment, in this manner, the two conflicting provisions can be reasonably harmonised and effect given to both the provisions. To construe the two provisions otherwise will have the effect of reducing one of the provisions as a "dead letter" or "useless lumber", which could not have been the intention of the Legislature in retaining the provision of Section 153 even after amending the provisions of Order VI, Rule 17. 9. It is against the aforesaid backdrop that I now proceed to examine the-validity of the impugned order. As noted earlier, the petitioner sought to correct three mistakes appearing in the plaint by way of amendment. The prayer for amendment in respect of the two mistakes has been allowed by the trial court, with which we are not concerned herein. It is with respect to the third mistake concerning the date of execution of Will and Testament that the trial court held that such amendment would change the cause of action to the prejudice of to the other side "at this stage when the defendant has entered into evidence after the issue". The trial court accordingly rejected this prayer for amendment. Mr. P.R. Barman, the learned counsel for the petitioner, vehemently submits that the correction of the date of execution of the Will and Testament from "22. 5.1982 to 16.4.1997" cannot possibly alter the cause of action inasmuch as the foundation for such correction is already there in the plaint. He takes me through paragraph 3 of the plaint and points out that the tone and tenor of the pleadings therein and the narration of the history of the case completely fit into the scheme of the amendment proposed by the petitioner. On a perusal of the sentence starting with "The Will was duly registered in Book No. III, Volume No. III-127, Year 1997, maintained in the Sub-Registry, Sadar, West Tripura" from the 6th line onwards of paragraph 3 of the plaint, I find considerable force in the contention of the learned counsel for the petitioner. On a perusal of the sentence starting with "The Will was duly registered in Book No. III, Volume No. III-127, Year 1997, maintained in the Sub-Registry, Sadar, West Tripura" from the 6th line onwards of paragraph 3 of the plaint, I find considerable force in the contention of the learned counsel for the petitioner. Apart from disagreeing with the observation of the trial court that the proposed amendment would change the cause of action in the suit, I am of the opinion that correction of date sought to be made by way of amendment appears to be an integral part of the case of the petitioner. The question whether the document was actually executed or not or whether it was executed in 1997 will constitute one of the issues to be decided in the suit. No prejudice can conceivably be caused to the respondents by the proposed amendment, for, they will have the liberty to controvert the same, if they are so advised, by filing additional written statement. In my judgment, in the absence of any material to show that the petitioner in seeking amendment is merely interested in stalling the proceedings, a genuine case for invoking Section 153 has been made out by him. In the view that I have taken, I hold that the learned Civil Judge in rejecting the prayer for amendment on the ground stated by him has completely failed to exercise his jurisdiction and has also improperly exercised his jurisdiction in not allowing the prayer for amendment, which, in my judgment, is based on bona fide grounds to facilitate the determination of the real issue involved in the suit. 10. For what has been stated above, this writ petition is allowed. Consequently, the impugned order dated 26.7.2005 to the extent it rejected item No. (III) in the proposed amendment of the petitioner is hereby set aside. The learned Civil Judge (Sr. Divn.), No. 1, Agartala, is, therefore, directed to allow the prayer of the petitioner for amendment accordingly and thereafter proceed with the trial of suit as expeditiously as possible. Needless to say, the interim order dated 25.8.2005 also stands vacated. To compensate the respondents, the petitioner shall pay a cost of Rs. 2,000 (Rupees two thousand) only to the respondents. Petition allowed