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2009 DIGILAW 570 (GUJ)

MANSUKHLAL BACHUBHAI PARMAR v. STATE OF GUJARAT

2009-08-25

ABHILASHA KUMARI

body2009
JUDGMENT SMT. ABHILASHA KUMARI, J. Rule. Ms. Moksha Thakkar, learned Assistant Government Pleader waives service of notice of rule, on behalf of the respondents. 1. This petition has been filed under Art. 227 of the Constitution of India, with a prayer to quash and set aside order dated 16th March, 2006, rendered by the learned Additional District Judge and Presiding Officer, Fast Track Court No.2, Jamnagar, where by the application of the petitioner at Exh. 10, in Regular Civil Appeal No. 38 of 2004, has been rejected. 2. In order to appreciate the controversy in issue, a brief factual background will be necessary. The petitioner (Original Plaintiff) had been appointed as a Forest Guard, on 4-11-1999. On an apprehension that his services are likely to be terminated, the petitioner instituted Regular Civil Suit No. 661 of 2000, on 23-7-2000, inter alia praying for a declaration and permanent injunction against the respondent No. I-State of Gujarat (Original Defendant No.1), and respondent No.2-Deputy Conservator of Forests, Forest Range, Jamnagar (Original Defendant No.2), against the apprehended termination of his services. In the said suit, the petitioner filed an application at Exh. 5, with a prayer to restrain the respondents from obstructing him from discharging his duties. The trial Court injuncted the respondents from doing so, but, at the same time, liberty was reserved to the respondents, to hold an inquiry against the petitioner. 2.1. It is the case of the petitioner that on 19-4-200 I, a show-cause notice was issued by respondent No. I, seeking an explanation as to why he has produced a false certificate of having failed in the 10th Standard. Another notice followed, dated 1-5-2001. The petitioner submitted a reply dated 9-5-2001 to the said Notices, seeking an opportunity of being heard. Thereafter, on 21-5-2001, the services of the petitioner came to be terminated by the respondents, by holding that his appointment was against the recruitment rules. An order proposing to terminate the services of the petitioner came to be passed in the interregnum. On 23-5-2001, the petitioner preferred an application at Exh. 17, in the said suit, seeking a direction that the order of proposed termination of his services should not be implemented, and the petitioner should not be prevented from discharging his duties. The prayers made in the said application were granted on 2-6-2001, and the order of termination was stayed, by the Court. 17, in the said suit, seeking a direction that the order of proposed termination of his services should not be implemented, and the petitioner should not be prevented from discharging his duties. The prayers made in the said application were granted on 2-6-2001, and the order of termination was stayed, by the Court. Despite the above-mentioned order having been passed, the respondents passed order dated 27-1-2003, during the pendency of the suit, terminating the services of the petitioner. Issues were framed in the suit, below Exh. 38, and issues Nos. 4 and 5 are as under : 4. Whether this Court has jurisdiction to try this suit? 5. Whether the alleged order passed by the defendant on dated 17-72000, 21-5-2002 and 27-1-2003 as sustainable at law? 2.2. The trial Court, after hearing the parties at length and appreciating the evidence on record, returned detailed findings on all the issues including the issues reproduced above. Issues Nos. 4 and 5 were dealt with together. On issue No.5, the Court recorded a finding on merits that the termination of the petitioner was bad in law, for the reasons recorded in the judgment and order of the trial Court, which are not necessary to be gone into at this stage. However, on issue No.4, the trial Court, found that it had no jurisdiction to entertain the suit and that the petitioner should have approached the Gujarat Civil Services Tribunal. The suit of the petitioner, was therefore, dismissed on the ground of jurisdiction, by judgment and decree dated 29-4-2003, passed by the trial Court. 2.3. The petitioner approached the High Court against the said judgment and decree of the trial Court, by filing Special Civil Application No. 6590 of 2003. The High Court, by order dated 10-12-2003, observed that, as the petitioner had availed of the remedy before the Civil Court, he should pursue the remedy of appeal before the concerned Court, and the petition was dismissed. Accordingly, the petitioner filed an appeal against the judgment and decree of the trial Court before the District Court, which is pending. 2.4. During the pendency of the said appeal, the petitioner filed an application at Exh. 10, seeking an amendment of the plaint by incorporating certain grounds as, according to the petitioner, after the filing of the suit certain events had occurred, such as termination of his services, which have a direct bearing on the suit. 2.4. During the pendency of the said appeal, the petitioner filed an application at Exh. 10, seeking an amendment of the plaint by incorporating certain grounds as, according to the petitioner, after the filing of the suit certain events had occurred, such as termination of his services, which have a direct bearing on the suit. The petitioner also sought to incorporate a prayer, seeking a declaration to the extent that the order of termination dated 27-1-2003 is illegal, null and void, and another prayer for issuance of mandatory injunction, directing the respondents to take the petitioner back into service. The application for amendment of the plaint has been rejected by passing the impugned order, hence, the petition. 3. Mr. Mehul S. Shah, learned Counsel for the petitioner, has made the following submissions : (i) That, the application of the petitioner has been rejected mainly on two grounds by the District Court. The first ground is that the nature of the suit would be changed if the amendment is allowed, and the second ground is that if the amendment, as proposed is granted, the Court may have to pass an order for rejection of the plaint at a subsequent stage, if it is found that the Civil Court has no jurisdiction. Neither of the two grounds on which the application has been rejected, is supported by law or is sustainable, as the petitioner had filed the suit apprehending termination of his services, and during the pendency of the suit the order of the termination has been passed by the respondents, in spite of the injunction granted by the trial Court. In violation and breach of the order of restraint passed by the trial Court, the services of the petitioner have been terminated by order dated 27-1-2003, during the pendency of the suit. Not only this, the trial Court has framed issue No.5, in respect of the same, and has recorded findings that the said order is bad in law and an amendment incorporating these events in the plaint is necessary. (ii) That subsequent events that have taken place after the filing of the suit cannot be overlooked, and as the petitioner has been relegated to the remedy of filing an appeal before the appellate Court, where it is still pending. (ii) That subsequent events that have taken place after the filing of the suit cannot be overlooked, and as the petitioner has been relegated to the remedy of filing an appeal before the appellate Court, where it is still pending. The amendment sought, is essential to the fair trial of the suit and will not cause prejudice to the respondents, or change the nature of the suit. As the services of the petitioner have been terminated during the pendency of the suit, it becomes necessary to challenge the said termination, which can only be done if the plaint is permitted to be amended. (iii) That reasons and grounds on which the application has been rejected, are not at all germane to the factual and legal position. The Court has proceeded on the basis of presumptions as to what situation would arise if it is found that the Civil Court does not have jurisdiction. That, the issue of jurisdiction, if it arises, can be decided at the relevant point of time after hearing the parties, and on that ground. The application could not have been rejected. Such a situation has not yet arisen and the suit is pending, therefore, the reasons recorded by the District Court for rejecting the application are erroneous and unsustainable in law. (iv) That, although, the trial Court has dismissed the suit of the petitioner on the ground of jurisdiction it has, at the same time, undertaken the exercise of examining the merits of the case and has recorded findings on the validity of the order of the termination passed by the respondents. An issue has also been framed in this regard and looking to the above facts, the amendment sought by the petitioner, which only seeks to put the factual position on record, ought to have been granted. (v) That, as the suit has been filed on 23-7-2000, the proviso to Order VI, Rule 17 would not be applicable in the present case, as the amendment has come into effect on 1-7-2002. As per the settled position of law, pleadings filed before the amendment came into force, would not be affected by it. (v) That, as the suit has been filed on 23-7-2000, the proviso to Order VI, Rule 17 would not be applicable in the present case, as the amendment has come into effect on 1-7-2002. As per the settled position of law, pleadings filed before the amendment came into force, would not be affected by it. The unamended provision of Order VI, Rule 17 provided that the Court may permit either of the parties to alter or amend his pleadings, at any stage of the proceedings, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. The said provision of law is in two parts. The first part is directory, whereas the second part where the word "shall" has been used, is mandatory in nature and in view of the provisions of law as well, The amendment ought to have been permitted. (vi) That, the amendment prayed for is necessary for determination of the real question in controversy between the parties. Subsequent events should be permitted to be brought on record, as in the present case, they are necessary for proper adjudication of the suit. The said amendments will not change the nature of the suit, and for the above reasons, the impugned order deserves to be quashed and set aside. 3.1. In support of the above submissions, the learned Counsel for the petitioner has placed reliance upon a decision of the Supreme Court in Rajesh Kumar Agganval & Ors. v. K. K. Modi & Ors., AIR 2006 SC 1647 . 4. The petition has been strongly contested by Ms. Moksha Thakkar, the learned Assistant Government Pleader, who has supported the impugned order. Ms. Thakkar has submitted as below : (A) The petitioner has filed the suit in the year 2000, on an apprehension of the termination of his services. The services of the petitioner have been terminated by order dated 27-1-2003, and it is only on 17-10-2005 that the petitioner has preferred the application for amendment in application at Exh. 10. (B) The petitioner was very well aware of the order of termination, as the said order has been passed during the pendency of the suit. The services of the petitioner have been terminated by order dated 27-1-2003, and it is only on 17-10-2005 that the petitioner has preferred the application for amendment in application at Exh. 10. (B) The petitioner was very well aware of the order of termination, as the said order has been passed during the pendency of the suit. However, no efforts were made by him to seek an amendment prior to 17-1 0-2005, and it is only when the appeal is at the stage of final hearing, that the petitioner has preferred the application for amendment. (C) The amendment sought by the petitioner, if permitted, will change the nature of the suit, as the petitioner had filed the suit apprehending his termination, whereas by way of the amendment, the petitioner seeks to challenge the order of termination. (D) The order of termination constitutes a fresh cause of action, for which a fresh suit can be filed by the petitioner. The application of the petitioner has been rightly rejected by the District Court, on the ground that it may change the nature of the suit. (E) The petitioner was given several opportunities to present his case in the departmental inquiry, but did not avail of the same and the inquiry has been concluded resulting in his termination. It is not that the petitioner had no knowledge of the proceedings, and as there is no legal justification for filing the application at the fag-end of the appeal, and as it may change the very nature of suit, the impugned order may not be interfered with. 5. I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. S.1. The admitted position is that the petitioner has filed the suit on 23-7-2000, as he apprehended the termination of his services. During the pendency of the suit, the services of the petitioner were terminated by order dated 27-1-2003 in spite of there being an injunction in his favour. The trial Court framed issue No. 5 in respect of the legality and validity of the termination order. The suit was dismissed by judgment and decree dated 29-4-2003, on the ground of lack of jurisdiction. The petitioner approached the High Court by filing a petition, which was dismissed. Consequently, he filed an appeal before the District Court, which is pending. The trial Court framed issue No. 5 in respect of the legality and validity of the termination order. The suit was dismissed by judgment and decree dated 29-4-2003, on the ground of lack of jurisdiction. The petitioner approached the High Court by filing a petition, which was dismissed. Consequently, he filed an appeal before the District Court, which is pending. Undoubtedly, the order of termination has been passed after the institution of the suit. It is, therefore, an event subsequent to the filing of the suit. The order of termination has been passed during the pendency of the suit, and the apprehension of termination, on which the petitioner filed the suit, has been transformed into reality. The termination of the services of the petitioner is a subsequent event and has a direct bearing on the suit. Such an amendment will not change the basic nature of the suit and if the petitioner can file another suit, there is no justifiable reason why the amendment cannot be granted in the present one, as the cause of actions arose during the pendency of the suit. 5.2. In order to appreciate the issues involved, it would be relevant to advert to the provisions of Order VI, Rule 17, without the proviso, which is not applicable in the present case, as the suit has been instituted prior to the amendment coming into force. The relevant provision of law reads as below: " 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 the due diligence, the party could not have raised the matter before the commencement of trial." 5.3. From a bare reading of the above provision, it is clear that the Court may permit either of the parties to alter or amend his pleadings, at any stage of the proceedings, and in any 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 question in controversy between the parties. 5.4. There can be no doubt regarding the fact that the real question in controversy in the present case, is the termination of the service of the petitioner. This event took place during the pendency of the suit. The suit has been filed prior to coming into force of the amendment, and the Proviso to Order VI, Rule 17 will not be applicable, as per the settled position of law. The unamended provision permits amendment 'at any stage of the proceedings' and provides that 'all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties'. By permitting the amendment prayed for by the petitioner, the real question in controversy would be brought on record. As the termination of the services of the petitioner took place during the pendency of the suit, it is a subsequent event, which could not have been incorporated in the plaint at the time of instituting the suit. Such an amendment would not, in my considered view change the nature of the suit. 5.5. In Rajesh Kumar Aggarwal & Ors. (supra), the Supreme Court has very lucidly discussed the provisions of Order VI, Rule 17. The relevant extract of the reported judgment are reproduced herein-below : "16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order VI, Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. 17. Order VI, Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 20. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case." 5.6. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case." 5.6. The ratio of the above-quoted judgment squarely applies to the case in hand. The petitioner finds himself in a peculiar predicament. He has approached the trial Court with the suit which, after deciding issue No. 5 regarding the legality of the order of termination in his favour, after considering the evidence on record, has ultimately dismissed the suit, on the ground of jurisdiction. The petitioner approached the High Court by filing a petition and then resorted to the remedy of appeal before the District Court, which is pending, and the application for amending the plaint has been rejected by the impugned order. 5.7. The amendment sought to be incorporated in the plaint is a factual one, necessitated by the termination of the services of the petitioner, during the pendency of the suit. It cannot, therefore, be said that the amendment sought for is not necessary for determination of the real question in controversy or will change the nature of the suit. The provisions of Order VI, Rule 17 empower the Court to permit amendment of pleadings, at any stage of the proceedings. The question of delay, therefore, is not relevant. While granting or refusing an amendment or alteration of pleadings, the factual position has to be kept in mind. In the peculiar facts of the present case, the amendment prayed for by the petitioner is necessary to determine the real question in controversy between the parties, and can be permitted at any stage of the proceedings as the proviso to Order VI, Rule 17 is not applicable in this case. Ultimately, the cause of substantial justice within the bounds of law, should be advanced and a hypertechnical approach not resorted to, in a case of this nature. 5.8. For reasons stated hereinabove, in my considered view, by passing the impugned order, an error has been committed, which has resulted in a failure of justice. The said order, therefore, deserves to be quashed and set aside. 6. Accordingly, the petition is allowed. 5.8. For reasons stated hereinabove, in my considered view, by passing the impugned order, an error has been committed, which has resulted in a failure of justice. The said order, therefore, deserves to be quashed and set aside. 6. Accordingly, the petition is allowed. The order dated 16th March, 2006 rendered by the learned Additional District Judge and Presiding Officer, Fast Track Court No.2, Jamnagar, in application at Exh. 10 in Regular Civil Appeal No. 38 of 2004, is quashed and set aside. As a consequence thereof, the application of the petitioner at Exh. 10 in Regular Civil Appeal No. 38 of 2004, is allowed. Rule is made absolute. (SBS) Application allowed.