Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 463 (MAD)

Mannu Mudaliyar & Others v. Karunakara Achari

2009-02-09

G.RAJASURIA

body2009
Judgment :- Inveighing the order dated 112. 2005 passed in I.A.No.365 of 2005 in O.S.No.98 of 2005 by the District Munsif, Ranipet, this civil revision petition is focussed. 2. Broadly but briefly, narratively but precisely, the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus: The respondent herein, as plaintiff, filed the suit O.S.No.98 of 2005 before the District Munsif, Ranipet, seeking the following reliefs:- Tamil The revision petitioners/defendants filed the written statement. The trial proceeded, both sides adduced oral and documentary evidence, thereupon arguments were advanced and the O.S. was posted for judgement. In the meanwhile, I.A.No.365 of 2005 was filed by the respondent/plaintiff under Order 1 Rule 10 of C.P.C. seeking permission of the Court to implead as 6th defendant one association, namely, @thHg;ge;jy; fpuhk kltpshf br;Fe;j rKjha r;fk;@/ The revision petitioners herein filed the counter resisting the application. However, the said I.A.was allowed. Being aggrieved by and dissatisfied with the said order, this revision petition is focussed on various grounds. 3. Mr.Ganapathy, representing Mr.R.Margabandhu, appearing for the revision petitioners would advance his argument, placing reliance on the grounds of revision, to the effect that as per Order 6 Rule 17 of the Code of Civil Procedure, as it is obtaining after the recent amendment of the Civil Procedure Code, there is no possibility of allowing such amendment of the plaint at the fag end of the suit. Accordingly, he prayed for allowing the revision petition by setting aside the order passed by the lower Court in the I.A. 4. Indubitably and unassailably the I.A.No.365 of 2005 was filed when the matter was posted for judgement; the written statement was filed by the revision petitioners/defendants long ago and there upon alone the parties proceeded with the trial. In the written statement itself, the defendants 1 to 4 raised the contention that the suit would not lie as against the defendants 1 to 4 as the defendants could not execute the sale deed when the patta for the suit property stands in the name of Samudhayam. The plaintiff simply kept quite. The defendants also raised various pleas in the written statement as to how the agreement to sell is not tenable. 5. At this juncture my mind is reminiscent and redolent of the following decision of the Honourable Apex Court reported in 2008(4) TLNJ 588(CIVIL)- VIDYABAI AND OTHERS VS. The plaintiff simply kept quite. The defendants also raised various pleas in the written statement as to how the agreement to sell is not tenable. 5. At this juncture my mind is reminiscent and redolent of the following decision of the Honourable Apex Court reported in 2008(4) TLNJ 588(CIVIL)- VIDYABAI AND OTHERS VS. PADMALATHA AND ANOTHER, certain excerpts from it would run thus: "7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which 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." It is couched in a mandatory form. The courts jurisdiction to allow such an application is taken away unless the conditions 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. 8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding. 9. Although in a different context, a Three-Judge Bench of this Court in Union of India and others v. Major General Madal Lal Yadav (Retd) ([1996] 4 SCC 127) took note of the dictionary meaning of the terms trial and commence to opine: 19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced. 10. Order XVIII, Rule 4(1) of the Code reads as under: "4.Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who claim for evidence:Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court." 11. This aspect of the matter has been considered by this Court in Ameer Trading Corpn.Ltd.v. Shapoorji Data Processing Ltd.([2004] 1 SCC 702) in the following terms: "15.The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which "evidence" is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit. 16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the Court or the Commissioner appointed by it." In Kailash v. Nanhku ([2005] 4 SCC 480), this Court held: "13. At this point the question arises:when does the trial of an election petition commence or what is the meaning to be assigned to the word trial in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word trial. We may notice that in Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. And Others ([2006] 12 SCC 1), this Court noticed the decision of this Court in Kailash (supra) to hold: 35. 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. 36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17mby Act 22 of 2002 w.e.f.7. 2002. It had a provision permitting 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 this proviso which falls for consideration." 6. A bare perusal of the aforesaid judgement of the Apex Court would unambiguously highlight and spotlight the fact that after the commencement of the trial, in a routine manner, the plaintiff cannot seek for amendment of the plaint. In this case, the lower Court, simply, after narrating the contentions of both sides, in a cryptic manner stated as though impleadment of R6 is necessary. At the fag end of the suit, the question of necessary party or unnecessary party does not arise. The lapses on the part of the plaintiff and the evidence adduced during trial should be taken into consideration. The defendants contested the suit by adducing evidence and also contending that the suit was bad for non-impleadment of the Samudhayam. However the plaintiff had chosen to enter upon trial and adduced evidence, by taking a conscious stand that the relief could successfully be claimed as against D1 to D4, who are the office bearers of that Samudhayam. The defendants contested the suit by adducing evidence and also contending that the suit was bad for non-impleadment of the Samudhayam. However the plaintiff had chosen to enter upon trial and adduced evidence, by taking a conscious stand that the relief could successfully be claimed as against D1 to D4, who are the office bearers of that Samudhayam. In such a case, the question of impleading that Samudhayam, at the fag end of the suit does not arise. 7. At this juncture, I recollect and call up Order 1 Rule 9 of C.P.C.and it is extracted here under for ready reference: "Order 1 Rule 9 of C.P.C. misjoinder and non-joinder:-No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:" 8. It is ex facie and prima facie clear that it is for the Court to decide the lis relating to the rights of the respective parties, who are before it irrespective of the fact whether the proposed party is before the Court or not. Hence, I am of the considered view that it is for the Court to decide the case as such considering the evidence already adduced before it and it is not open for the plaintiff to implead the new defendant and consequently get the plaint amended and virtually protract and prolong the matter, quite against the pith and marrow, gist and kernal, the warp and woof of Order 6 Rule 17 of C.P.C. as obtaining after the recent amendment of C.P.C. by Act 22 of 2002. 9. Hence, this civil revision petition is allowed by setting aside the order dated 112. 2005 passed in I.A.No.365 of 2005 and consequently the said I.A. is dismissed. The lower Court is directed to pronounce judgement as per law within a period of 15 days from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petition is closed.