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2015 DIGILAW 450 (MP)

Vijay v. Soneram

2015-04-20

ROHIT ARYA

body2015
JUDGMENT : Rohit Arya, J. 1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 1/8/2012 in case No. 17A/2010, whereby the trial court has allowed an application for amendment filed by plaintiff under Order VI Rule 17 CPC. 2. Facts relevant and on record necessary for disposal of this writ petition are to the effect that plaintiff styling himself as owner of the land in question has filed a suit on 24/7/2009 for declaration of title, permanent injunction and further declaration that the sale deed dated 24/5/1963 is null and void. In para 8 of the plaint it is averred that on 19/5/2009 upon perusal of the revenue documents procured from the Tahsil office plaintiff came to know that father of the defendants is ploughing the field and by playing fraud with the father of the plaintiff the sale deed was executed and the suit land has been acquired by him. 3. Written statement has been filed denying the plaint allegations. It has been asserted that defendants have right, title and interest over the suit land transferred through registered sale deed and are in possession thereof ploughing the field & harvesting the crops. 4. Accordingly, trial court framed issues and suit was fixed for evidence. At this stage, i.e. after four years of filing the suit, plaintiff filed an application under Order VI Rule 17 CPC seeking amendment in the plaint to change the averments in para 8 of the plaint to the effect that instead of the words "Kabja Le Liya He", the words "defendants are attempting to take possession" be substituted and consequential amendment is sought in the prayer clause to the effect "to restrain defendants from taking possession" and delete the prayer clause 13(c) where relief is sought that "it be declared that the plaintiff is entitled to recover the possession from defendants". 5. The aforesaid amendment was opposed by the petitioners/defendants inter alia contending that by changing the relevant material facts pleaded in the plaint plaintiff has attempted to change the nature of the suit and the same cannot be permitted. 5. The aforesaid amendment was opposed by the petitioners/defendants inter alia contending that by changing the relevant material facts pleaded in the plaint plaintiff has attempted to change the nature of the suit and the same cannot be permitted. Besides after framing of issues when the case is fixed for trial, such amendment for substitution of basic relevant facts in the plaint cannot be permitted in the light of the provisions contained in the proviso to Order VI Rule 17 CPC, as the facts sought to be pleaded cannot be said to be not in the knowledge of the plaintiff at the time of filing of the suit. Such amendment not only shall change the nature of the suit, but also is prejudicial and detrimental to the right and interest of the defendants and in fact and in effect shall impede the course of justice. 6. The trial court though has observed that there is no explanation much less plausible explanation for such belated amendment contrary to the facts pleaded in the plaint, but with the reasoning that as defendants shall be given full opportunity to defend the suit, held that the amendment cannot be rejected and, accordingly, amendment application was allowed on payment of cost of Rs. 100/-. 7. Challenging the aforesaid order counsel for petitioners submits that by virtue of sale deed dated 24/5/1963 the suit land stood transferred in the name of father of defendants. Since then defendants are in possession of the suit land and cultivating the same. This fact is well evident from para 8 of the original plaint and the relief clause 13(c) in the plaint. After four years of filing of the suit plaintiff could not have been allowed to amend the pleadings alleging that defendants are attempting to take possession and consequential amendment in the prayer clause that defendants be restrained from taking possession changing the entire complexion of the suit, which is originally filed for declaration of title over the suit land and that the sale deed in favour of defendants are null and void with further relief that plaintiff is entitled for recovery of possession, besides injunction. Admittedly, there is no explanation offered for such belated amendment. In terms of proviso to Order VI Rule 17 CPC the amendment cannot be permitted as the trial has commenced. Besides, there is also no factual justification for making such amendment. Admittedly, there is no explanation offered for such belated amendment. In terms of proviso to Order VI Rule 17 CPC the amendment cannot be permitted as the trial has commenced. Besides, there is also no factual justification for making such amendment. With the aforesaid submissions, it is prayed that the impugned order deserves to be set aside. 8. Per contra, learned counsel for the respondent/plaintiff submitted that by mistake said averments could not be made in the plaint and no sooner plaintiff acquired the knowledge, the amendment was sought to be incorporated in the plaint. Plaintiff's bonafide cannot be doubted. Amendment, therefore, has rightly been allowed by the trial court. 9. Having heard learned counsel for the parties, in the opinion of this Court, the reasonings and conclusion drawn by the trial court do not conform to the mandate contained under Order VI Rule 17 CPC in the matter of consideration of application for amendment. For ready reference proviso to Order VI Rule 17 CPC is quoted hereinbelow:- "17. Amendment of pleadings.- XXXX 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." (Emphasis supplied) 10. The Hon'ble Supreme Court in (2012) 11 SCC 341 , Abdul Rehman and another vs. Ruldu and others, has laid down the law as regards the meaning of the words "commencement of trial" and has held as under:- "The Courts have to be liberal in accepting same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." (emphasis supplied) 11. In the instant case the application for amendment has been filed after the commencement of trial. 12. As a matter of fact, words "after the commencement of trial" as incorporated in proviso to Order VI Rule 17 of CPC have received an authoritative interpretation and do not admit any doubt. It has been held that the date on which issues are framed is the date of first hearing. 12. As a matter of fact, words "after the commencement of trial" as incorporated in proviso to Order VI Rule 17 of CPC have received an authoritative interpretation and do not admit any doubt. It has been held that the date on which issues are framed is the date of first hearing. Filing of affidavit in lieu of examination-in-chief of a witness would amount to commencement of proceedings. (Emphasis supplied). For ready reference para 8 of Vidyabai and others vs. Padmalatha and another, 2009 (3) MPLJ 122, which reads as under:- "8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfil the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to 'commencement of proceeding'." (Emphasis supplied). 13. That apart, for want of any plausible explanation, such amendment could not have been allowed. Learned counsel for the petitioners/defendants is right in contending that by substitution of the proposed amendment in place of existing facts, the material changes shall be brought to the complexion of the suit at the stage of trial that too for no justifiable reasons. In such circumstances, the trial court has committed jurisdictional error while acceding to the prayer for permission to amend the plaint. Accordingly, the impugned order is set aside. Plaintiff's application under Order VI Rule 17 CPC stands rejected. At this stage, counsel for the parties submitted that the suit is of the year 2009 and due to interim order passed by this Court dated 3/10/2012, the proceeding of the suit was stayed, therefore, direction may be issued to the trial court to decide the suit expeditiously. 14. Joint prayer so made by the counsel for the parties appears to be reasonable, accordingly, trial court is directed to proceed with the trial of the suit and decide the suit as early as possible.