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2012 DIGILAW 2676 (ALL)

Madan Lal v. Prescribed Authority/Civil Judge (Sr. Div. ), Kanpur & Anr.

2012-11-20

SUDHIR AGARWAL

body2012
Sudhir Agarwal, J.;— 1. Heard Sri Shyam Singh Sengar, learned counsel for the petitioner and perused the record. 2. Writ petition is directed against the order dated 14.9.2012 passed by Civil Judge (Senior Division), Kanpur Nagar rejecting petitioner's application seeking amendment at the fag end when petitioner's all other attempt to prolong proceedings in P.A. Case No.11 of 2009 failed. 3. It is evident from record that entire proceedings were at the verge of completion and the case was listed for final hearing on various dates before application in question was filed by petitioner. Learned trial court has mentioned in the impugned order that final hearing commenced on 10.9.2012 and thereafter 14.9.2012 was fixed giving opportunity to the petitioner to address the Court and complete his arguments. However, instead of addressing the Court, petitioner moved an amendment application and therein he has not stated at all as to why aforesaid facts could not be brought earlier on record. The Court noticed that after completion of evidence, when date for final hearing was fixed, petitioner moved an application for appointment of a Commissioner, which was rejected by trial court on 24.7.2012. The said order attained finality. Thereafter 14.8.2012 was fixed for hearing but it was adjourned on an application made by the petitioner-tenant. Again on 24.08.2012 he sought adjournment, which was allowed on payment of cost of Rs.200/-. The petitioner-tenant was apprised that no further adjournment shall be granted and court fixed 30.8.2012 when also tenant did not co-operate for hearing and matter was adjourned to 3.9.2012 when Presenting Officer himself was absent being on leave and then it was fixed for 10.9.2012. On 10.9.2012, plaintiff's arguments were heard and in order to give opportunity to petitioner, 14.9.2012 was fixed but instead of advancing argument, he moved an amendment application in order to defer proceedings, which has been rejected by Court below observing that besides other, it clear lacks bona fide and apparently an attempt on the part of petitioner to delay proceedings. Even if, conduct of petitioner for the time being is ignored, looking to the facts at the stage when he filed amendment application even otherwise, I find that amendment application failed to satisfy requirement of statute and therefore, ultimate order passed by Court below rejecting it cannot be faulted. 4. Even if, conduct of petitioner for the time being is ignored, looking to the facts at the stage when he filed amendment application even otherwise, I find that amendment application failed to satisfy requirement of statute and therefore, ultimate order passed by Court below rejecting it cannot be faulted. 4. The law is very clear that an amendment at the stage when not only trial has commenced but almost at the verge of completion cannot be allowed unless requirement of proviso to Order VI, Rule 17 C.P.C. is satisfied. Time and again, Apex court has given a very wide scope of amendment of pleadings but there has been an intervention of Legislature with an object for preventing dilatory tactic to delay the disposal of the cases and in that view of the matter, the first intervention came by virtue of Amendment Act, 1999 whereby in Order 6, Rules 17 and 18 were omitted. However, this complete omission did not found favour with the litigating people and realizing the great hardship, Legislature again intervened vide Amendment Act, 2002 whereby Rule 17 was incorporated but with a restricted provision in the shape, a proviso added therein. Order 6 Rule 17 came to be inserted by Amendment Act, 2002 reads as under: "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 due diligence, the party could not have raised the matter before the commencement of trial" 5. A bare perusal of above Rule 17 would show that an amendment is permissible by the Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining the real question in controversy between the parties. A bare perusal of above Rule 17 would show that an amendment is permissible by the Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining the real question in controversy between the parties. It gives very wide power to the Court for allowing amendment but the proviso added therein restricts such wide power of the Court simultaneously by observing that no application for amendment shall be allowed after the Trial has commenced unless the Court comes to the conclusion that in spite due diligence, party could not have raised the matter before the commencement of Trial. Now there is an embargo on an application for amendment to be allowed once the Trial has commenced. The embargo is complete. The only scope, thereafter is that the Court comes to the conclusion that despite due diligence such matter could not have been raised by the parties concerned before the commencement of Trial. Therefore the party seeking amendment, after commencement of Trial, is bound to first plead and then prove that the amendment it has sought could not have been pleaded by it before commencement of Trial despite its due diligence. After the trial has commenced, an amendment cannot be sought and allowed as a matter of course unless conditions of due diligence is found to have existed therein since it is prohibited by proviso to Order 6 Rule 17 C.P.C. 6. Before this Court it is not disputed by learned counsel for petitioner that the proceedings is at the verge of completion inasmuch as the case is listed for final hearing. The Apex Court in Kailash v. Nanhku AIR 2005 SC 2441 has already held that trial is deemed to have commenced when the issue are settled and the case is set down for recording of evidence. This view has been followed in Baldev Singh and others Vs. Manohar Singh and another (2006) 9 SCC 498 and Ajendraprasadji N. Pande Vs. Swami Keshavprakeshdasji N. AIR 2007 SC 806 . The Apex Court has also held in Ajendraprasadji N. Pande (supra) that Order 6 Rule 17 C.P.C. as amended by Amendment Act, 2002 does not permit an amendment once trial has commenced unless despite due diligence, matter could not be raised before the commencement of trial. Swami Keshavprakeshdasji N. AIR 2007 SC 806 . The Apex Court has also held in Ajendraprasadji N. Pande (supra) that Order 6 Rule 17 C.P.C. as amended by Amendment Act, 2002 does not permit an amendment once trial has commenced unless despite due diligence, matter could not be raised before the commencement of trial. The Court held that provision is mandatory and precludes a party to seek amendment of his pleadings once the trial has commenced unless requirement of proviso itself is satisfied. In taking this view, the Apex Court also referred to and relied on its earlier decision in Salem Advocate Bar Association Vs. Union of India, AIR 2005 SC 3353 . 7. To the same extent, is the view taken by this Court in Rajkumar Gurawara Vs. M/s. S. K. Sarwagi and Co. Pvt. Ltd. AIR 2008 SC 2303 and Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others 2009 (1) SCC 84. This Court has also followed the above exposition of law by referring to Revajeetu Builders (supra) in Sri Krishan Mittal Vs. Upper District Judge C.N. 10 Bijnor and others (Writ A No. 46709 of 2012) decided on 13.9.2012. 8. In the present case there is not even a whisper in entire amendment application as to why petitioner-applicant could not have brought the facts, which he want to be added by means of amendment application, earlier, despite due diligence i.e. before commencement of trial. In absence of any such averment and without satisfying requirement of proviso to Order VI, Rule 17 C.P.C., amendment sought in the present case ought not to have been allowed and trial court has rightly rejected the same. 9. In view of the above, the application, in my view, has rightly been rejected by trial court by the impugned order and it warrants no interference. 10. The attempt on the part of the petitioner to halt trial before the court below in P.A. Case No. 11 of 2009 by filing present writ petition lacks bona fide and I have no hesitation in recording by concurrence that view expressed by trial court that conduct of petitioner is not fair and he is adopting all ways and means so as to delay disposal of above matter. The conduct of the petitioner therefore justify that this writ petition should be dismissed with cost which I quantify to Rs.10,000/-. 11. The conduct of the petitioner therefore justify that this writ petition should be dismissed with cost which I quantify to Rs.10,000/-. 11. The writ petition is, therefore, dismissed with cost, as above. _____________