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2013 DIGILAW 326 (JK)

Farooqa (Mst. ) v. Gh. Mohd. Malik

2013-05-22

ALI MOHAMMAD MAGREY, M.M.Kumar

body2013
1. The instant appeal under Clause 12 of the Letters Patent is directed against order dated 07.11.2012 rendered by a learned Single Judge of this Court holding that the defendant-respondents-Ghulam Mohammad Malik & others were entitled to amend the written statement. Consequently and their application under Order VI Rule 17 Code of Civil Procedure should have been allowed by the Sub Judge, Shopian to the extent that they were within their rights to raise the issue concerning valuation of the suit property and payment of court fee. 2. The defendant-respondents have filed application seeking amendment of the written statement by incorporating two pleas, namely, (a) that the defendant-respondents were in adverse possession; (b) improper valuation of the suit property and deficiency in payment of court fee. The defendant-respondents were adducing evidence in the suit filed by the plaintiff-appellants. The application filed by the defendant-respondents for amendment of the written statement has been dismissed by the trial Court vide order dated 16.02.2012 with the observation that according to the proviso added to Rule 17 of Order VI, only those amendments were to be allowed which were necessary for the purpose of determining the real question in controversy between the parties or the Court has to be satisfied that despite due diligence the party seeking amendment was not in a position to raise the issue at the appropriate stage namely before the commencement of the trial. At an earlier stage, plaint was amended by the plaintiff-appellants, which was taken on record on 03.07.2008 and amended written statement filed by the defendant-respondents on 29.10.2008 was also accepted, which did not question the factum of valuation of the suit nor any plea concerning adverse possession was ever raised. The view of the Sub Judge would be discernible from the following observations made by him in order dated 16.02.2012. "1. Perusal of the above provision of law governing the subject makes it ostensibly clear that only those amendments are to be allowed as are necessary for the purpose of determining the real questions in controversy between the parties. This enabling provision is subject to the satisfaction of the court that despite due diligence, the party seeking amendment was not in a position to raise the matter before the commencement of the trial. This enabling provision is subject to the satisfaction of the court that despite due diligence, the party seeking amendment was not in a position to raise the matter before the commencement of the trial. Amended plaint was taken on record vide order dated 03.07.2008 and amended written statement was filed by the applicants/defendants on 29.10.2008 but they have not questioned the factum of valuation of the suit. In para 4 of the plaint, non-applicants/plaintiffs have in clear and unambiguous terms stated that father of the defendants dispossessed them of the suit land in the year 1991. Applicants/Defendants could have raised the plea of adverse possession at the relevant time. Nothing has been said by them as to how they were precluded from raising this point before the commencement of the trial i.e. before the framing of issues. Non-applicants/ Plaintiffs have concluded their evidence and Applicants/Defendants have also led their evidence and their evidence is also required to be closed. 8. Amendments have been brought in the code of civil procedure to expedite the civil litigation and to frustrate the designs of the party willing to protract disposal of the cases. Party seeking an amendment has to come out of the rigor of proviso to O 6 R 17 and it cannot be allowed mechanically as a matter of routine. The proviso, therefore is in the mandatory form and curtails the jurisdiction of the court to allow an amendment after the trial has commenced. However there is an exception to this proposition that the court may allow an amendment even after the commencement of the trial if it comes to the conclusion that in spite of due diligence, the party seeking the amendment could not have raised the matter before the commencement of the trial. From the plain reading of the application, there is no whisper of as to how and in what manner the applicants/defendants could not raise the matter well in time i.e. before framing of issues. Emphasis has been laid upon the fact that proposed amendment is aimed at determining the real questions in controversy between the parties. Moreover, applicants/defendants are precluded from raising the plea of adverse possession against the non-applicants/plaintiffs who happen to be real sisters of the father of former. Therefore what has been succinctly stated herein above, the application filed by the applicants/defendants being devoid of any merit is dismissed. Moreover, applicants/defendants are precluded from raising the plea of adverse possession against the non-applicants/plaintiffs who happen to be real sisters of the father of former. Therefore what has been succinctly stated herein above, the application filed by the applicants/defendants being devoid of any merit is dismissed. Application is disposed of and shall form part of the main suit file." 3. Feeling aggrieved, defendant-respondents filed OWP No. 167/2012 and the learned Single Judge of this Court has partially accepted their prayer to amend the written statement permitting them to raise the issue of valuation of the suit property and payment of court fee alone. The reasoning adopted by the learned Single Judge is discernible from para 3 and 4 of the judgment/order, which read as under:- "3/ The petitioners-defendants, it is submitted at the bar, are leading evidence before the trial Court. In order to ensure that at the time of conclusion of trial, the respondents-plaintiffs, may not be the victim of loves labour lost, in as much as, for want of proper valuation and payment of Court fee, the Suit may be dismissed and with a view to ensure that the issue is settled at this stage itself, it is deemed appropriate that the petitioners-defendants' application to the extent of raising the question of valuation of the Suit property and payment of proper Court fee only would require to be allowed. The other claim of the petitioners-defendants that may be permitted to amend the written statement by incorporating the ground that they are in adverse possession of the Suit property, cannot be allowed to be raised at this distance of time. The impugned order, would, accordingly, require to be modified. 4/ In the aforementioned backdrop, this writ petition is disposed of along with connected CMPs. Impugned order dated 16.02.2012, passed be learned Sub Judge, Shopian, is modified and it is provided that the petitioners-defendants will file written statement before the learned trial Court, Shopian, within two weeks from today wherein they will raise the issue of valuation of the Suit Property and payment of Court fee. The learned trial Court to deal with the matter in accordance with law and make an earnest effort to dispose of the Suit at the earliest." 4. Against the aforesaid order the plaintiff-appellants are in appeal under Clause 12 of the Letters Patent. 5. Mr. The learned trial Court to deal with the matter in accordance with law and make an earnest effort to dispose of the Suit at the earliest." 4. Against the aforesaid order the plaintiff-appellants are in appeal under Clause 12 of the Letters Patent. 5. Mr. Iqbal, learned counsel for the plaintiff-appellants has argued that writ of certiorari under Article 226 of the Constitution or exercise of supervisory jurisdiction under Article 227 of the Constitution of India or Section 104 of the Constitution of Jammu & Kashmir would not be available to correct mere error of fact or law without fulfilling the two requirements namely:- (i) The error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) A grave injustice or gross failure of justice has occasioned thereby. In support of his argument, learned counsel has placed reliance on the view taken by Hon'ble the Supreme Court in para 8(5) of the judgment rendered in the case of Kokkanda B. Poondacha and others v. K.D.Ganapathi and another (2011) 12 SCC 600. Mr. Iqbal has also argued that the growing tendency of entertaining writ petitions by High Courts has been subject matter of criticism by the Supreme Court. In that regard our attention has been drawn to para 64 of the judgment of Hon'ble the Supreme Court rendered in the case of Shalini Shyam Shetty and another v. Rajendra Shankar Patil (2010) 8 SCC 329 . 6. Mr. Lone, learned counsel for the defendant-respondents has, however, argued that the appeal is not maintainable in view of the observations of the Supreme Court in para 48 of the judgment in Shalini Shyam Shetty's case (supra). According to the learned counsel, the Letter Patent Appeal should be dismissed on that score alone. Mr. Lone has further substantiated his argument that order dated 16.02.2012 passed by the trial Court proceed on the assumption that the amendment made in the Civil Procedure Code on 20th March, 2009 in Jammu & Kashmir by adding proviso to Order VI Rule 17 would be applicable to the pending suits. He has drawn our attention to the Civil Laws (Amendment) Act, 2009 (for brevity, `Amendment Act'). He has drawn our attention to the Civil Laws (Amendment) Act, 2009 (for brevity, `Amendment Act'). According to Section 32, which deals with repeal and savings, it has been provided that the proviso which has been added to Order VI Rule 17 was not to apply to any pleading filed before the commencement of Section 16, which deals with the amendments made in Order VI. The amendment admittedly has come into force in the State of Jammu and Kashmir from 20th March, 2009. Accordingly, it has been urged that there was error apparent on record committed by the learned Sub Judge in his order dated 16.02.2012 and the proviso could not apply to the case of defendant-respondents to defeat their claim for amendment of the written statement. 7. Having heard learned counsel for the parties and after perusal of the record, we are of the considered view that the instant appeal is ill advised. Mr. Lone has rightly submitted that the appeal would not be maintainable. In para 48 of the judgment rendered in Shalini Shyam Shetty's case (supra) such a bar on filing of letters patent appeals could be gauged. The aforesaid para is set out below in extenso:- "48. The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. The jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex debito justitiae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 2266, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Jude of a High Court in exercise of power under Article 227. From an order of a Single Judge passed under Article 2266, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Jude of a High Court in exercise of power under Article 227. In almost all the High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court", (emphasis added) 8. A Perusal of the aforesaid para would put beyond any doubt that exercise of jurisdiction by the High Court under Article 227 of the Constitution is entirely discretionary and no person can claim it as a matter of right. From an order of the learned Single Judge passed under Article 226 a Letters Patent Appeal or an intra-court appeal is permissible and would thus be maintainable. However, no such appeal is maintainable from an order passed by the learned Single Judge in exercise of power under Article 227 ostensibly for the reason that exercise of power under Article 227 of the Constitution is entirely domain of the High Court. The other arguments raised by Mr. Lone are equally meritorious. Section 32 of the Amendment Act deals with repeal and savings. It has been clarified by Section 32 (2)(i) that the provisions of Rule 17 of Order VI of the First Schedule as substituted by Section 16 were not to apply in respect of any pleading filed before the commencement of the amendment. In other words the pleadings filed earlier would continue to govern by the un-amended law. It is appropriate to extract Section 32(1)(2)(i), which reads as under:- "32. Repeal and savings -- (1) Any provision inserted in the principal Act by the high Court before the commencement of this Act shall, except in so far as such provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. It is appropriate to extract Section 32(1)(2)(i), which reads as under:- "32. Repeal and savings -- (1) Any provision inserted in the principal Act by the high Court before the commencement of this Act shall, except in so far as such provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, Samvat 1977-- ..........(i) the provisions of rules 5,15,17 and 18 of Order VI of the First Schedule as omitted or as the case may be, inserted substituted by section 16 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16;" (emphasis added) 9. A casual glance at Section 32(2) (i) would show that the provisions of Rule 17 of Order VI of the First Schedule as inserted or substituted by Section 16 of the Amendment Act were not to apply in respect of any pleading filed before the commencement of Section 16. It is further appropriate to mention that Section 16 has incorporated amendment to Order VI, which, inter alia, provides that for rules 17 and 18, the following rules were to be substituted and same read as under:- "16. Amendment of order VI--In the First Schedule, in Order VI," (iii) For rules 17 and 18, the following rules shall be substituted, namely:- 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 question 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." 10. However, perusal of Section 16 would show that by amendment a proviso has been added to Rule 17 of Order VI. However, perusal of Section 16 would show that by amendment a proviso has been added to Rule 17 of Order VI. According to the proviso, no application for amendment is to be allowed after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party seeking amendment could not have raised the matter before the commencement of the trial. There is no such bar created by un-amended Rule 17 of Order VI. On the contrary Rule 17 of Order VI permits the Court to allow amendment of the pleadings at any stage of the proceedings. Hence the amendment made by the Amendment Act by inserting proviso to rule 17 of Order VI would not govern the issue. Therefore, the instant appeal is liable to be dismissed. 11. The arguments of Mr. Iqbal, learned counsel for the plaintiff-appellants would not require any detailed examination in view of the fact that only an error apparent on the face of record is sought to be corrected at the instance of defendant-respondents permitting them to incorporate the plea concerning valuation of the suit and payment of adequate court fee. It has remained undisputed that in exercise of certiorari jurisdiction such an error could have been rectified. Learned Single Judge has taken the correct view by partially accepting the request made by the defendant-respondents. 12. As a sequel to the above discussion, this appeal fails and is dismissed on the ground that same is not maintainable. Even otherwise, the amendment incorporated by the Amendment Act by adding proviso to Order VI Rule 17 would not apply to the pleadings filed before 20.03.2009. However, we leave it open to the defendant-respondents to challenge that part of the order passed by the trial Court on 16.02.2012 rejecting their prayer for amendment of the written statement by filing application for amendment by invoking provisions of Order XLIII Rule 1-A Code of Civil Procedure, if such a necessity arises in an appeal filed by either side under Section 96 CPC. 13. The Appeal along with connected application shall stand disposed of in the above terms.