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2018 DIGILAW 205 (MP)

Manohar Singh v. Damini Mahadik

2018-02-20

SANJAY YADAV

body2018
ORDER 1. This petition under Article 227 of the Constitution of India is directed against the order dated 8.11.2017 passed in Civil Suit No. 5-A/2016 bZnh- whereby, the trial Court has allowed the application under Order 6 rule 17 Code of Civil Procedure, 1908, filed by the respondents/plaintiffs seeking incorporation of additional facts in the plaint in consequence to the amendment by the defendant (present petitioner) as paragraph 5-v in the written statement. The trial Court allowed the application on the finding that the same will not change the nature of suit which is for eviction and that the trial is yet to commence. The trial Court further observed that the defendant would be at liberty to contradict the amendment in his written statement. 2. The challenge is on the ground that the order is contrary to the provisions contained in the proviso to rule 17 of Order 6 CPC, because with the framing of issues the trial had commenced, therefore, incumbent it was upon the plaintiffs to have tendered the explanation as warranted under proviso to rule 17 of Order 6 CPC. 3. The proviso which has been relied upon stipulates : “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”. The proviso as is evident is attracted when the trial has commenced. In the case at hand though the issues are framed; however, the evidence is yet to start. In Mohinder Kumar Mehra v. Roop Rani Mehra and Anothers [ (2018) 2 SCC 132 ], it is held : “19. Coming to the facts of the present case, it is clear from the record that issues were framed on 17.5.2010 and case was fixed for recording of evidence of the plaintiff on 10.8.2010. The plaintiff did not produce the evidence and took adjournment and in the meantime filed an application under Order VI rule 16 or 17 on 17.1.2011. Thereafter, the Court on 26.7.2011 has granted four week’s time as the last opportunity to file the examinationin-chief. It is useful to quote Para 4 of the Order, which is to the following effect : “4. Thereafter, the Court on 26.7.2011 has granted four week’s time as the last opportunity to file the examinationin-chief. It is useful to quote Para 4 of the Order, which is to the following effect : “4. In view of the above, it is directed as follows : (i) Having regard to the delay which has ensued, subject to the plaintiff paying costs of Rs.5,000/-, each to the contesting Defendants No. 1 and 5 within a period of one week, the plaintiff is permitted four weeks time as a last opportunity to file the examination-in-chief of his witnesses on affidavit. (ii) The matter shall be listed before the Joint Registrar for recording of plaintiff's evidence on 29.8.2011. (iii) The case shall be listed before the Court for direction on 18.1.2012. (iv) Needless to say in case IA No. 1001 of 2011 is allowed, appropriate orders for evidence of the plaintiff would be made.” 20. Thus, technically trial commenced when the date was fixed for leading evidence by the plaintiff but actually the amendment application was filed before the evidence was led by the plaintiff. The parties led evidence after the amendment application was filed. In this context, it is necessary to notice the order of the High Court dated 14.2.2014, which records that evidence of both the parties have been concluded. Most important fact to be noticed in the order is that the Court recorded the statement of plaintiff’s counsel that parties have led evidence in view of the amendment sought in the plaint. Order dated 14.2.2014 is to the following effect : “The evidence of both the parties has been concluded. The matter has been listed for final disposal. The learned counsel for the plaintiff has pointed out the order dated 26.7.2011 wherein observation was made that in case I.A. No. 1001/2011 under Order 6 rule 17 CPC for amendment of the plaint is allowed, appropriate order for evidence of the plaintiff would be made. As a matter of fact, the plaintiff's counsel stated that the parties have also led evidence in view of amendment sought in the plaint and the same covered in the evidence produced by the parties. As a matter of fact, the plaintiff's counsel stated that the parties have also led evidence in view of amendment sought in the plaint and the same covered in the evidence produced by the parties. The defendants, however, alleged that the said amendment was unnecessary and was opposed by the defendants and issue involved in the said circumstances be considered at the time of final hearing of suit as defendant No. 1 is more than 85 year old lady, the suit itself be decided. List this matter in the category of Short cause on 22.5.2014……” 4. In view whereof, as the evidence is yet to be recorded in the case at hand it was within the jurisdiction of the trial Court to have allowed the application for amendment. 5. Furthermore, it is held in Raj Kumar Bhatia v. Subhash Chander Bhatia [ (2018) 2 SCC 87 ], that : “12. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate Court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or Tribunal has passed an order. The trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 rule 17 CPC. There was no reason for the High Court to interfere under Article 227.” 6. Consequently, Petition fails and is dismissed. Interim order stands vacated. No costs.