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2014 DIGILAW 424 (TRI)

Subhas Banik v. Krishna Kamal Banik

2014-12-18

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, CJ. 1. With the consent of the parties, the matter is heard today itself. 2. The petitioner who is the plaintiff before the trial Court has filed this petition which is directed against the order dated 10-09-2014 whereby the prayer made by the petitioner for amendment of the plaint was rejected and also against the order dated 10-11-2014 where the prayer made for adjournment for producing the witnesses of the plaintiff for cross-examination has been rejected. 3. Both the orders have been challenged in one petition. Without going into the question as to whether one petition is maintainable in respect of two distinct orders, I propose to dispose of the petition on merits itself. 4. In the application for amendment, it is stated that some facts which were necessary for decision of the case have not been mentioned in the plaint. 5. I have gone through the amendment application filed before the learned trial Court. In the said amendment application, there is no averment in terms of the proviso to Order VI Rule 17 of the Code of Civil Procedure (CPC) which reads as follows:- "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." 6. With effect from 01-07-2002 when the proviso was added, an embargo has been put upon the Court and no application for amendment can 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 commencement of trial. In the application filed, there is no averment whatsoever as to why such averment could not be made before the trial had commenced. Therefore, without going into the other aspects of the matter, I feel that the amendment application cannot be allowed in view of the embargo provided under Order VI Rule 17 of CPC. 7. In the application filed, there is no averment whatsoever as to why such averment could not be made before the trial had commenced. Therefore, without going into the other aspects of the matter, I feel that the amendment application cannot be allowed in view of the embargo provided under Order VI Rule 17 of CPC. 7. Coming to the order passed on 10-11-2014 rejecting the application filed by the plaintiff for seeking adjournment, I find that probably this application for adjournment was filed with a view to get a date so that the order rejecting the amendment could be challenged either in this Court or by filing a review petition before the trial Court. The learned trial Court has noted that opportunities were given to the plaintiff on 18-06-2014, 04-07-2014 and 18-07-2014 to produce his witnesses and the witnesses were not produced. The learned trial Court thereafter rejected the application. This would amount to virtually dismissing the case of the plaintiff because the statements of the witnesses which have been filed by way of affidavit cannot be read into evidence unless they are permitted to be cross-examined. Such an order would be very harsh. 8. Therefore, I grant one opportunity to the plaintiff to produce his entire evidence. I have been informed that the case is fixed on 02-01-2015 for D.Ws. It is made clear that DWs shall not be examined on that date and on that date, the plaintiff shall be given one date to produce his witnesses. The plaintiff, if he so desires, may request the Court on 02-01-2015 to issue summons to ensure the presence of the witnesses but it shall be the responsibility of the plaintiff to ensure that the summons are served upon the witnesses. Only one opportunity shall be given after 02-01-2015 to the plaintiff to produce all his witnesses whose affidavits have been filed for the purpose of cross-examination. 9. With these observations, the petition is disposed of. 10. Send down the lower court records forthwith.