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2012 DIGILAW 141 (BOM)

Kailas v. Avinash

2012-01-20

S.S.SHINDE

body2012
Judgment : ORAL JUDGMENT: 1. Heard learned Counsel for the parties. 2. Rule. Rule made returnable forthwith with the consent of parties. 3. This writ petition takes exception to the judgment and order dated 4th March, 2011, passed by the Civil Judge, Junior Division, Karjat, allowing application for amendment. 4. Learned Counsel appearing for the petitioner submits that the plaintiff instituted Regular Civil Suit No.227 of 2008, on 8th December, 2008. On 16th January, 2009, on receipt of suit summons, the petitioner filed say to the application below Exh.5 contending that the petitioner is owner and possessor of the suit property and the respondent has no concern with the same. The petitioner submitted list of document at Exh.16 on 16th January 2009. It is contention of the learned Counsel appearing for the petitioner that the written statement was filed on 16th January, 2009. The respondent was aware of the fact that construction was already completed and shop is being run in the suit property on 16th January 2009 itself. Learned Counsel for the petitioner submits that the respondent i.e. original plaintiff should have taken immediate steps for effecting amendment. Inspite of having knowledge of the fact that the petitioner i.e. original defendant has completed construction of the shop, no steps were taken and the respondent kept silent as mute spectator and failed to show any diligence. It is further submitted that on 2nd March, 2009, original plaintiff preferred an application for adjournment which came to be allowed on 20th June, 2009. The respondent filed pursis stating that application below Exh.5 be heard along with main suit itself. On 9th April, 2010, the Trial Court was pleased to frame the issue below Exh.20 and thus the Trial commenced. It is case of the petitioner that even before the commencement of the trial, no positive steps were taken by the plaintiff for effecting amendment to the suit by showing due diligence. It further submitted that on 28th July, 2010, 4th September, 2010 and 4th October, 2010, the plaintiff filed applications for adjournment, which were allowed by the Trial Court. 5. Learned Counsel appearing for the petitioner submits that on 27th October, 2010, belatedly, the plaintiff filed application below Exh.28, as per Order 6 Rule 17 of C.P.C. for effecting amendment to the suit by adding para Nos. 5. Learned Counsel appearing for the petitioner submits that on 27th October, 2010, belatedly, the plaintiff filed application below Exh.28, as per Order 6 Rule 17 of C.P.C. for effecting amendment to the suit by adding para Nos. 3A & 3B, claiming mandatory injunction for demolition of construction carried by the petitioner and also for handing over possession of the acquired plot in favour of the respondent. Learned Counsel appearing for the petitioner submits that such application should not have been entertained by the Trial Court since the trial was commenced on the date of framing of the issues. No due diligence has been shown by the plaintiff. It is further submitted that the application filed by the plaintiff was after 18 months from the date of filing of written statement. Therefore, according to the Counsel appearing for the petitioner, in absence of any due diligence shown in the application for amendment, the Trial Court should not have allowed the application for amendment of the plaint. Learned Counsel invited my attention to the provisions of Order 6 Rule 17 of the C.P.C. and also judgment of the Supreme Court in the case of Vidyabai& Ors. Vs. Padmalatha & Anr., 2009 (2) SCC 409 . In para 7 of said judgment it is held that the Court has no discretion to allow such application for amendment unless due diligence is shown in the said application that why such matter which the applicant wishes to bring on record by way of amendment, could not be brought before the commencement of the Trial. Learned Counsel also invited my attention to another reported judgment of this Court in the case of Chhabubai Haribhau Badakh Vs. S.D. Khaatod & Sons & Anr., 2009 (5) Bom.C.R. 311 and in particular head note of said judgment. Learned Counsel also placed reliance upon unreported judgment of this Court in the case of Kishor Raghunath Pande & Anr. Vs. Narendra Durlabhji Shah in Writ Petition No. 3491 of 2011. Learned Counsel invited my attention to para 12 of said judgment and submitted that the date on which the issues are framed is the date when the trial commences. The provisions of Order 6 Rule 17 C.P.C. are in mandatory form. Vs. Narendra Durlabhji Shah in Writ Petition No. 3491 of 2011. Learned Counsel invited my attention to para 12 of said judgment and submitted that the date on which the issues are framed is the date when the trial commences. The provisions of Order 6 Rule 17 C.P.C. are in mandatory form. Unless case is made out by the application, satisfying the condition in proviso to Rule 17 of Order 6 of C.P.C., the Court has no discretion to allow application for amendment. Therefore, relying on the grounds taken in the writ petition, annexures thereto and the judgments cited, learned Counsel for the petitioner submits that this writ petition deserves to be allowed. 6. On the other hand, learned Counsel for the respondent invited my attention to the submissions in application for amendment and submitted that it is the case of the plaintiff that though written statement was filed by the defendant on 16.01.2009, by that time the construction was not completed. It is case of the plaintiff that the construction of the suit premises has been completed during the pendency of the suit. Therefore, there is no any delay in filing application for amendment. It is further submitted that since it is noticed by the plaintiff that the construction is completed by the defendant hurriedly during the pendency of the suit, that gave rise to filing of application for amendment. No prejudice would be caused to the defendant, if such application for amendment is allowed. He further submits that the reasons recorded by the Trial Court are in consonance with the pleadings and the evidence brought on record. The application is allowed by imposing costs of Rs.500/and the defendant is compensated. Therefore, this Court may not interfere in the extraordinary jurisdiction. 7. I have given due consideration to the rival submissions and also perused the entire material placed on record and also judgments cited by the Counsel appearing for the parties. Though learned Counsel appearing for the petitioner strenuously contended that since issues are framed and the date on which issues are framed the trial commences, however, with respect to submission of learned Counsel appearing for the petitioner, the position which is stated by the Supreme Court in the case of Vidyabai(Supra), in para 8 is that the date on which issues are framed is the date of first hearing. Provisions of C.P.C. envisages taking of various steps at different stages of the proceeding. Filing of affidavit in lieu of examination in chief of the witness, would amount to ‘commencement of proceeding. Admittedly, in the present case no such affidavit in lieu of examination in chief is filed by the plaintiff. Therefore, in real sense, there is no commencement of proceedings in the present case. 8. The contentions of the Counsel appearing for the petitioner that the plaintiff has not shown due diligence in filing the application for amendment, inspite of filing written statement by the defendant on 16.01.2009 stating therein that the construction of the suit has already been completed by the defendant is concerned, in the light of averments made in the application it has to be concluded that though it was assertion of the defendant that such construction is completed, however, it appears that the plaintiff has disputed such assertion. 9. It is true that the application filed by the plaintiff for amendment from the date of filing of written statement is filed after about 18 months. However, that it Self would not debar the plaintiff from filing the application and further to entertain such application by the Trial Court. One of the reasons given by the Trial Court is that by allowing such application, the multiplicity of the litigation can be avoided. Therefore, in my considered opinion, when the application was filed by the plaintiff for amendment of the plaint, there was no commencement of the proceedings. It is admitted position that no affidavit in lieu of examination in chief was filed by the plaintiff. It is true that there is delay in filing application for amendment from the date of filing the written statement. However, it is required to be considered that by allowing such application whether controversy involved in the suit can be set at rest and further whether the multiplicity of the litigation can be curtailed by allowing such application. Therefore, in the facts and circumstances of this case, when the Trial Court has allowed application for amendment of the plaint to avoid multiplicity of the further litigation and on imposing costs of Rs. 500/, same will not cause any prejudice to the defendant. Recording of the evidence is yet to be started. Original defendant i.e. petitioner herein will get opportunity to lead further evidence in the matter. 500/, same will not cause any prejudice to the defendant. Recording of the evidence is yet to be started. Original defendant i.e. petitioner herein will get opportunity to lead further evidence in the matter. It is also not the case of the petitioner that the interim relief is granted in favour of the plaintiff. It is not necessary to burden this order by reproducing what is stated by the Trial Court. Suffice it to say that the findings recorded by the Trial Court are in consonance with the material brought on record. The view taken by the Trial Court is reasonable. No case is made out to entertain the writ petition. The writ petition is devoid of merits and same stands dismissed. Rule stands discharged.