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2008 DIGILAW 576 (GAU)

Bolo Ram Paul v. Digendra Dutta

2008-08-06

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katkakey, J. 1. The defendants No. 1 to 4 in Title Suit No. 5/2007 by the present application filed under Article 227of the Constitution of India, have challenged the order dated 22.04.2008 passed by the learned Civil Judge, Bongaigaon in Misc. (J) Case No. 5/08 arising out of the said suit, allowing the prayer for amendment made by the plaintiff, on the ground that the plaintiff by the proposed amendment of the plaint has not introduced any new case and the amendment proposed if allowed, would not change the nature and character of the suit and rather the proposed amendment is nothing but clarification in order to find out the real controversy between the parties. 2. I have heard Mr. B.C. Das, learned Sr. Counsel for the petitioners and Mr. A.D. Choudhury, learned Counsel for the respondent No. 1. None appears for the proforma defendant/proforma opposite party No. 2. 3. Mr. Das, learned Sr. Counsel referring to different dates as well as the impugned order, has submitted that before filing of the application seeking amendment under Order 6, Rule 17 of the CPC, by order dated 14.02.2008 issues were settled, documents were filed and even the examination- in-chief in the form of affidavit of the plaintiff's witness were filed, therefore, according to the learned Sr. Counsel since the trial has commenced, although the Court has power to allow the amendment under Order 6, Rule 17, CPC, it can allow amendment of pleadings only in the event the Court conies to the conclusion that in spite of due diligence, the party could not have prayed for such amendment before commencement of the trial. According to Mr. Das, it is apparent from the application seeking amendment filed by the plaintiff that they even did not make any whisper that in spite of due diligence they could not file the application seeking amendment before commencement of the trial. It has further been submitted by Mr. Das, learned senior counsel, that the Trial Court by the impugned order has allowed the prayer for amendment even without recording any finding that the plaintiff in spite of due diligence could not file the application seeking amendment before commencing of the trial. Mr. Das in support of his contention has placed reliance on the decision of the Apex Court in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. and Ors. (2006) 12 SCC 1 . 4. Mr. Das in support of his contention has placed reliance on the decision of the Apex Court in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. and Ors. (2006) 12 SCC 1 . 4. Mr. Choudhury, learned Counsel for the plaintiff/opposite party, on the other hand, supporting the impugned order dated 22.4.2008, has contended that in this case the trial cannot be said to have commenced as the plaintiff's witness is yet to be cross-examined and the argument is yet to be heard. According to Mr. Choudhury, even after the trial has commenced, the learned Trial Court has ample power to allow the amendment at any stage of the proceeding, in view of the provision contained in the Order VI, Rule 17 of the CPC, in case such amendment is necessary to decide the controversy between the parties effectively and completely. The Court below has not committed any illegality in passing the order allowing the amendment as it has been observed that such amendment is necessary to decide the controversy between the parties effectively and completely and it would not change the nature and character of the suit. Mr. Choudhury placing reliance on the decision of the Apex Court In the case Baldev Singh and Ors. v. Monohar Singh and Anr. reported in (2006) 6 SCC 498 , has submitted that the proviso to Order 6, Rule 17 of the CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments and in the instant case even the stage for cross-examination of the plaintiff's witness having not been reached, the trial cannot be said to have commenced in the suit. Mr. Choudhury has also placed reliance on a Single Bench decision of this Court in the case of Abdul Khaleque v. Abdul Sattar and Ors. reported in 2007 (2) GLT 644 in support of his contention. 5. In the instant case the following facts are not in dispute: (1) 28.06.2007 was the date fixed for filing documents by the plaintiff and accordingly documents were filed. (2) On 04.07.2007 the defendant filed document, on which date the issues were framed. (3) On 10.12.2007 the evidence on affidavit of the plaintiff's witness was filed. (4) On 14.02.2008 the application seeking amendment under Order 6, Rule17 of the CPC was filed. 6. (2) On 04.07.2007 the defendant filed document, on which date the issues were framed. (3) On 10.12.2007 the evidence on affidavit of the plaintiff's witness was filed. (4) On 14.02.2008 the application seeking amendment under Order 6, Rule17 of the CPC was filed. 6. The proviso to Order 6, Rule 17 provides: 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 commencement of the Trial. 7. Though the Court has ample power to allow the amendment at any stage of the proceeding, in terms of the provision under Order 6, Rule 17of the CPC, if such amendment is necessary for the purpose of deciding the real controversy between the parties, a rider has been put by the proviso restricting the Court's power to allow the amendments, after commencement of the trial. Such amendment, after commencement of the trial, can be allowed only when the party seeking amendment demonstrates to the satisfaction of the Court that he in spite of due diligence could not file the application before. There is also absolutely no dispute about the Court's power to allow the amendment, in the event such amendment is necessary for determination of the real controversy between the parties and if it does not change the nature and character of the suit it is also open to a party to explain even the admission in pleadings and providing more details in respect of facts already brought on record, which amounts only to an elaboration of the case, by way of filing an application for amendment, however, the same is subject to the proviso to Order 6, Rule 17, CPC. 8. The Civil Procedure Code does not specifically state when the trial of a suit commences. It appears from provision contained in Order 14 relating to framing of issues that the Court may examine witnesses or documents before framing of issues. Order 15 Rule 1 empowers the Court to pronounce judgment, where at the first hearing of the suit it appears that the parties are not at issue on any question of law or of fact. It appears from provision contained in Order 14 relating to framing of issues that the Court may examine witnesses or documents before framing of issues. Order 15 Rule 1 empowers the Court to pronounce judgment, where at the first hearing of the suit it appears that the parties are not at issue on any question of law or of fact. Rule 2 of Order 15, CPC also authorizes the Court to pronounce judgment for or against any one of the defendants, where there are more than one defendants, if such defendant is not at Issue with the plaintiff on any question of law or of fact. Therefore, first hearing in a suit is provided in Order 15, CPC. However, as noticed above, the Court while framing the issues is required to peruse the pleadings of the parties, answers to interrogatories delivered in the suit, if any, as well as the contents of documents prescribed by the either party and may even, in a given case, examine witnesses or documents before framing issues. Order 18, CPC deals with the procedure of hearing of suit and examination of witnesses. Rule 1 of Order 18 states which party has the right to begin. Rule 2 of Order 18 requires the party having the right to begin to state his case and produce his evidence in support of the issues which he is bound to prove, on the date fixed for hearing of the suit or on any other day to which the hearing is adjourned. Rule 4 of Order 18 requires the party, to file the examination-in-chief of a witness, who calls him for evidence, on affidavit. Therefore, it can be held that the trial of the suit begins when the issues are framed as the framing of issues is not a mere formality, but, as noticed above requires examination of pleadings etc. and in a given case even examination of witnesses. 9. The Apex Court while dealing with an election petition filed under the provision of the Representation of the People Act, 1951, in the case Kailash v. Nanhku and Ors. reported in (2005) 4 SCC 480 , in paragraph 13 of the judgment, has opined that in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. reported in (2005) 4 SCC 480 , in paragraph 13 of the judgment, has opined that in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. The said view has however, been expressed by the Apex Court while dealing with an election petition. The Apex Court In Baldev Singh (supra) while dealing with the proviso to Order 6, Rule 17, relating to when the trial of the suit begins, in paragraph 17 observed as follows: 17. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17, CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings. In the said case, the Apex Court, keeping in view the stage on which the application under Order 6, Rule 17 of the CPC was filed, i.e. the stage when the parties are yet to file their documents, has declined to interfere with the order passed allowing the amendment. 10. In Abdul Khaleque (supra), a Single Bench of this Court relying on the decision of the Apex Court in Baldev Singh (supra) and keeping in view the fact that after framing of the issues there was no further progress in the concerned suit, has declined to interfere with the order passed by the learned Court below allowing the amendment. 11. The proviso of Order VI, Rule 17, CPC came to be considered again by the Apex Court in Ajendraprasadji N. Pandey (supra), in which case by following the decision in the case of Kailash (supra), the Apex Court has opined that the trial under the CPC is deemed to have commenced when the issues are settled and the case was set up for evidence. 12. 12. In view of the aforesaid position, particularly in view of the decision of the Apex Court in Ajendraprasadji N. Pandey (supra), the trial of the suit, with reference to the proviso to Order 6, Rule 17, commences when the issues are settled. 13. In the instance case, there is no dispute that the issues were settled on 4.7.2007 and the application seeking amendment was filed on 14.2.2008. In the application filed by the opposite part/plaintiff it has not been pleaded that in spite of due diligence the plaintiff could not make such prayer for amendment before commencement of the trial. The only ground which was taken in the application seeking amendment is that through oversight the proposed amendment was not incorporated in the plaint. Such a vague statement cannot, in any case, be construed to mean that the plaintiff in spite of due diligence could not file the application for amendment before commencement of the trial. There is in feet, no averments that in spite of due diligence, the party could not make the prayer before commencement of the trial. 14. The learned Court below, without going in to that aspect of the matter, has allowed the amendment on the ground that the amendment would not change the nature and character of the suit and such amendment is necessary for the purpose of deciding the real controversy between the parties. 15. In view of the aforesaid position, I am of the considered opinion that since the learned Court below has allowed the amendment without the provisions of the Order VI, Rule 17 of the CPC being complied with, the same requires to be interfered with in exercise of the jurisdiction under Article 227of the Constitution of India, which I accordingly do. The order dated 22.4.2008 passed by the learned Civil Judge, Bongaigaon in Misc. (J) Case No. 5/08 arising out of the Title Suit No. 5/07 is accordingly set aside. 16. No cost.