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Madhya Pradesh High Court · body

2018 DIGILAW 894 (MP)

Vasudev Sharan Goyal (D) Though LRs v. Imartibai

2018-10-22

SANJAY YADAV

body2018
ORDER 1. I.A. No. 4659/2018, an application under Order 22 rule 3 read with section 11 of Code of Civil Procedure, 1908 for substitution of legal representatives of petitioner No. 1- Vashudev Sharan Goyal, who died on 9.6.2018. 2. Considered. 3. Allowed. 4. Let substitution be carried out during course of the day. 5. With the consent of learned counsel for the parties, the matter is finally heard. 6. Challenge is to an order dated 9.7.2015 passed in Civil Suit No. 21-A/2011; whereby, the trial Court dismissed the application under Order 6 rule 17 of the Code of Civil Procedure, 1908, filed by petitioner/defendant seeking elaboration of pleadings in written statement. The trial Court dismissed the application on the findings that the petitioner/defendant failed to show due diligence as the trial had commenced invoking proviso to rule 17 of Order 6 of Code of Civil Procedure, 1908. 7. It is urged on behalf of the petitioner that trial Court grossly erred in assuming that the trial has commenced. It is urged that except filing an affidavit under Order 18 rule 4 of CPC no further steps were taken by the plaintiff by presenting his witnesses for cross-examination. 8. Reliance is placed on the decision of the Supreme Court in Usha Balashaheb Swami and others v. Kiran Appaso Swami and others [ (2007) 5 SCC 602 ] to establish that it is permissible for the defendant to bring inconsistent plea in original suit. The petitioner has also relied on the decision in the case of Sushil Kumar Jain v. Manoj Kumar and another [ (2009) 14 SCC 38 ] and Mohinder Kumar Mehra v. Roop Rani Mehra and anothers [ (2018) 2 SCC 132 ] to bring home the submissions that merely filing of affidavit under Order 18 rule 4 of CPC, the trial cannot be said to have commenced. 9. In Usha Balashaheb Swami (supra), it is observed by Their Lordship : “17. It is now well-settled by various decisions of this Court as well as those by High Courts that the Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one........... 19. It is now well-settled by various decisions of this Court as well as those by High Courts that the Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one........... 19. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.” It is held in Sushil Kumar Jain (supra) : “18. Referring to the proviso to Order 6 rule 17 of the CPC, the learned counsel for the respondents argued that the proviso clearly bars that any application for amendment either of plaint or of written statement can be allowed after 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 the trial. Therefore, the learned counsel for the respondents submitted that in view of the proviso to Order 6 rule 17 of the CPC, the High Court as well as the R0ent Controller had acted within their jurisdiction in rejecting the application for amendment of the written statement on the ground that the trial has already commenced and, therefore, no interference can be made in respect of the same. We are unable to agree with this submission of the learned counsel for the respondents. 20. We are unable to agree with this submission of the learned counsel for the respondents. 20. In view of the aforesaid decision and in view of the admitted fact that not even the issues have yet been framed, documents have not yet been filed, evidence has not yet been adduced, we are of the view that the proviso to Order 6 rule 17 of the CPC has no manner of application as the trial has not yet commenced.” Similarly, in Mohinder Kumar Mehra (supra), it is held by Their Lordship : “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 examination-in-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. 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. The defendants, however, alleged that the said amendment was unnecessary and was opposed by the defendants and issue involved in the said circumstancesbe 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......” 10. The impugned order when is tested on the anvil of the decision in Usha Balashaheb Swami (supra), Sushil Kumar Jain (supra) and Mohinder Kumar Mehra (supra), cannot be given stamp of approval. 11. Consequently, impugned order is set aside. Application under Order 6 rule 17 read with section 151 of Code of Civil Procedure, 1908, whereby petitioner seeking amendment in the written statement is allowed. 12. Let the amendment be incorporated within a period of fifteen days from today. Respondent/plaintiff would be at liberty to seek consequential amendment in the plaint. 13. The petition is disposed of finally in above terms. There shall be no order as to costs.