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2013 DIGILAW 1857 (RAJ)

Suresh Kumar Garg v. Shashi Kala Aeran

2013-10-23

ATUL KUMAR JAIN

body2013
Hon'ble JAIN, J.—Before deciding this petition which was filed under Article 227 of the Constitution of India, following judgment of the Hon'ble Supreme Court deserves a mention:- Shalini Shyam Shetty and Anr. vs. Rajendra Shankar Patil, (2010) 8 SCC 329 . 2. In this case it was held by Hon'ble the Supreme Court that a petition under Art. 227 of the Constitution of India cannot be called a writ petition and the High Courts cannot at the drop of a hat, in exercise of its power of superintendence under Art. 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it, nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. It was further held that the parameters of interference by High Courts in exercise of the power of superintendence were mentioned in Waryam Singh vs. Amarnath, AIR 1954 SC 215 , wherein it was held that the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it "within the bounds of their authority." 3. It was further held in Shalini Shyam Shetty's case (supra) that in exercise of its power of superintendence, the High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it is a possible view and the jurisdiction has to be very sparingly exercised. 4. It was further held in Shalini Shyam Shetty's case (supra) that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to be minimum to ensure that the wheel of justice does not come in a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. The power of interference under this Article is to be kept to be minimum to ensure that the wheel of justice does not come in a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. The power under Article 227 of the Constitution of India may be unfettered but its exercise is subject to high degree of judicial discipline pointed out about because an improper and a frequent exercise of this power will be counter productive and will divest this extraordinary power of its strength and vitality. 5. In the above mentioned case it was further held by the Hon'ble Supreme Court that in some High Courts, there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions and this is sought to be justified on an erroneous appreciation of the ratio in Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675 = RLW 2003(4) SC 523 and in view of the recent amendment under Section 115 of CPC, it is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed but in out view even if scope of Section 115 CPC has been curtailed but in our view even if scope of Section 115 CPC is curtailed, that has not resulted into expanding the High Court's power of superintendence, it is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 6. It was further held by the Hon'ble Supreme Court in the above mentioned case that as a result of frequent interference by the Hon'ble High Court under Article 227 of the Constitution of India, with pending civil and criminal cases, the disposal of cases by the subordinate courts gets further impeded and thus causing serious problems in the administration of justice. 7. In the present matter, appeal is pending in the first appellate court at the stage of final arguments and at this stage, the appellant Suresh Kumar, who is petitioner before us, had sought permission for amendment of his written statement. His application under Order VI Rule 17 CPC was dismissed by the Addl. District Judge No. 1, Ajmer in Civil Appeal No. 227/2008 - Suresh Kumar vs. Shashi Kala. "17. His application under Order VI Rule 17 CPC was dismissed by the Addl. District Judge No. 1, Ajmer in Civil Appeal No. 227/2008 - Suresh Kumar vs. Shashi Kala. "17. Amendment of pleadings.- The Court may at any stage of the proceeding 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." 8. The appellant has submitted that because of Section 16 of CPC (Amendment) Act of 2002 and Section 32(k) of CPC (amendment) Act of 1999, the amended provisions of Order VI Rule 17 CPC cannot be made applicable to the present matter. The suit was filed in this case long back. No doubt, Order VI Rule 17 CPC was amended in the year 2002 and as a matter of right, benefit of amendment cannot be taken by the opposite party in this matter but rule of equity and justice also says that no application for amendment should be allowed after commencement of the trial unless the person seeking amendment is able to prove that in spite of his due diligence he could have raised the matter before the commencement of the trial. 9. The petitioner has also sought help from the following rulings:- (1) Baldev Singh & Anr. vs. Manohar Singh & Anr. (2006) 6 SCC 498 = RLW 2006(4) SC 3360. This was a case before amendment of Order VI Rule 17 CPC and it was held in this case that the courts should be extremely liberal in granting prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. (2) Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors. 2006(3) RLW 1882. This was also a case before the amendment of O. VI R. 17 CPC. In this case it was held that if amendment is necessary to decide the real dispute between the parties then the amendment should be allowed. (2) Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors. 2006(3) RLW 1882. This was also a case before the amendment of O. VI R. 17 CPC. In this case it was held that if amendment is necessary to decide the real dispute between the parties then the amendment should be allowed. (3) Andhra Bank vs. ABN Amro Bank N.V. & Anr., (2007) 6 SCC 167 . In this case, it was held that an application under Order VI Rule 17 CPC, cannot be rejected only on the ground of delay. It was further held in this case that at the stage of amendment, the courts should not go into the question of merits of such amendment. (4) Shikharchand Jain vs. Digamber Jain Praband Sabha & Ors., (1974) 1 SCC 675 . In this case, it was held the Supreme Court can take notice of the subsequent events and allow amendment application under Order VI Rule 17 CPC when the matter is pending before it. (5) Purchasing Management International & Anr. vs. Rajat Pandhi & Anr., CM (M) 373/2008 decided on 30.1.2009. In this case, it was held that when the suit was filed before the Amendment of 2002 of CPC, then the amended proviso of Order VI Rule 17 CPC will not be applicable to the matter. 10. On the other hand, the respondent has relied upon the following rulings:- (1) Smt. Mohini Badhwear vs. Raghunandan Saran Ashok Sharan, AIR 1989 SC 1492 . (2) Dewan Chand Bhalla vs. Dr. Ashok Kumar Bhoil, (1994) 5 SCC 444. (3) Dr. Rajeshwar Dayal vs. Dhan Kumar,1973 RLW 368. (4) Ved Prakash vs. Anand Prakash, 1976 WLN (UC) 246. (5) Smt. Padmawati & Anr. vs. Shyam Kumar Sharma, 1996(1) WLC (Raj.) 209. 11. The above mentioned cases are not relevant for deciding the application under Order VI Rule 17, C.P.C. 12. The respondent has also relied on the following rulings:- (1) Anurodh vs. Kedar Nath Gupta & Anr., 2012(2) WLC (Raj.) 786. (2) Kapoor Chand (dead) through L.Rs. vs. Ram Krit & Ors., 2013(98) ALR 399. 13. In the above matters, the delay in filing application under Order VI Rule 17 CPC was held to be a good ground for rejection of such application. 14. (2) Kapoor Chand (dead) through L.Rs. vs. Ram Krit & Ors., 2013(98) ALR 399. 13. In the above matters, the delay in filing application under Order VI Rule 17 CPC was held to be a good ground for rejection of such application. 14. The respondent has also submitted that the present civil suit for rent and eviction was filed in the year 1987, the trial court decreed the suit in the year 2006, the appeal was filed by the tenant in February, 2006, the tenant sold the property acquired by him on 18.10.2006, application under Order VI Rule 17 CPC was moved after six years from the date of execution of the said sale-deed and at the stage of final arguments of the appeal, viz, 14.8.2012 and the appellate court dismissed the application under Order VI and 17 CPC who order dated 7.11.2012. 15. In the circumstances of the case, looking to the anguish expressed by the Hon'ble Supreme Court in Shalini Shyam case (supra), I am convinced that the proposed amendment at very belated stage in this case was not necessary for the purpose of determining the real question in controversy between the parties. The suit was filed in the year 1987 and after a quarter of century, in the year 2012, application under Order 41 Rule 17 CPC had been moved by the petitioner/appellant/defendant which did not deserve acceptance at all. 16. Hence, the petition filed under Article 227 of the Constitution of India by the petitioner/appellant/defendant deserves dismissal in the circumstances of the case, which is hereby dismissed. The stay petition also stands disposed of accordingly.