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2019 DIGILAW 250 (CAL)

Ashutosh Roy Prafulla Kumar Roy v. Md. Iqbal Khan

2019-02-20

SHEKHAR B.SARAF

body2019
JUDGMENT : 1. This is an application made on behalf of the defendants for amendment of the written statement. It is to be noted that the suit was instituted in 2013 and the written statement was filed on 23rd June, 2014. Subsequent to the filing of the written statement, the parties proceeded in the matter and completed discovery and inspection of documents. The issues were also framed by an order dated 15th September, 2017. Subsequently, witness action also started in this matter and the deposition of the first witness of the plaintiffs began on 4th July, 2018. In the said deposition, 26 questions were put to the witness. 2. I find that this application for amendment of the written statement has been made on 31st July, 2018, subsequent to the witness action having started. Counsels appearing on behalf of the applicants/defendants have argued that the amendments sought to be made are for the purposes of making typographical corrections and for amplification of the defence already made. Paragraphs 4 to 9 of the application specify the reasons as to why the said amendment should be allowed. Counsels have also relied on several judgments -Seth Nanak Chand Shadiram -v- Amin Chand Pyarilal reported in AIR 1970 Cal 8 ; Rajesh Kumar Aggarwal & Ors. -v- K.K. Modi & Ors. reported in (2006) 4 SCC 385 ; Baldev Singh & Ors. -v- Manohar Singh & Anr. reported in (2006) 6 SCC 498 ; Usha Balashaheb Swami & Ors. -v- Kiran Appaso Swami & Ors. reported in (2007) 5 SCC 602 ; Usha Devi -v- Rijwan Ahamd reported in (2008) 3 SCC 717 ; State of Madhya Pradesh -v- Union of India & Anr. reported in (2011) 12 SCC 268 ; State of Bihar & Ors. v- Modern Tent House & Anr. reported in (2017) 8 SCC 567 and Raj Kumar Bhatia -v- Subhash Chander Bhatia reported in (2018) 2 SCC 87 , to buttress their argument that an amendment to the written statement is the rule and not allowing the same is an exception. The applicants have argued that the proposed amendments made at paragraph 6(ee) to paragraph 6(eee) are only for the purpose of enhancement and clarification of the statements made in the original written statement. 3. The applicants have argued that the proposed amendments made at paragraph 6(ee) to paragraph 6(eee) are only for the purpose of enhancement and clarification of the statements made in the original written statement. 3. The counsel appearing on behalf of the respondents/plaintiffs has submitted that this application is barred under the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”]. Mr. Malay Kumar Ghosh, Senior Advocate also submitted that no proper explanation whatsoever has been provided as is required under the said proviso. He submits that the averments made in the application are vague and ambiguous and do not in any manner clarify as to why these amendments could not have been raised before the commencement of trial. Mr. Ghosh further relies on Vidyabai & Ors. -v-Padmalatha & Anr. reported in (2009) 2 SCC 409 , which lays down the law, stating that the proviso appended to Order VI Rule 17 of the CPC restricts the power of the Court to allow amendment of pleadings. He relies on paragraphs 19, 20 and 21 in support of his arguments. The counsel for the applicants/defendants in reply further submitted that paragraphs 6 and 7 of this application clarify the reasons as to why they were not able to carry out the amendments. According to him, they had received certain documents, which they have placed before this Court, at the time of hearing, that indicate that they came in possession of certain new material in the month of December, 2017. It is in light of these documents that these amendments to the written statement are required to be carried out. 4. I have considered the statements made on behalf of both the sides and perused the materials on record. At the outset, it is clear that the present matter is hit by the proviso to Order VI Rule 17 of the CPC. 4. I have considered the statements made on behalf of both the sides and perused the materials on record. At the outset, it is clear that the present matter is hit by the proviso to Order VI Rule 17 of the CPC. Order VI Rule 17 of the CPC reads as follows: “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 made 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.” 5. The proviso to Order VI Rule 17 was inserted in 2002 by an amendment to the CPC and it restricts the scope of the Court to allow amendments to pleadings after the trial has commenced. It requires the party seeking an amendment, after trial has begun, to show that the party could not have raised this point before the trial commenced despite exercising due diligence. It is undoubtedly true that the Court is liberal while allowing applications for amendment of pleadings, however, the Court’s power is now fettered by the proviso. 6. The proviso makes it necessary for the Court to examine the stage at which the application for amendment is made. In the instant case, trial has undoubtedly commenced as issues have been framed, documents have been filed and inspected, and examination-in-chief has begun. The issue of when a trial commences in lieu of Order VI Rule 17 was considered in Sayed Ali Mallick –v- Ramjan Ali reported in 2012 (3) CLJ (Cal). In this case, amendment was prayed for when the issues had been framed and the date for inspection of documents had been fixed. The Court held that the issue of when the amendment is sought goes to the very jurisdiction of the Court to allow it. In this case, amendment was prayed for when the issues had been framed and the date for inspection of documents had been fixed. The Court held that the issue of when the amendment is sought goes to the very jurisdiction of the Court to allow it. The relevant extract from paragraph 12 of the judgment is delineated below: “…This restrictive embargo on the power of the Court to permit amendment of pleadings necessitates me to examine the stage at which such prayer has been made in the instant case. It is true that this issue had not been raised by the opposite party before the trial Court, as had been argued by Mr. Bhattacharya, but since it goes to the very jurisdiction of the Court to allow such prayer, I propose to examine the same.” 7. The High Court of Calcutta in Sayed Ali Mallick (supra) clarified as to when a trial is said to have commenced with respect to Order VI Rule 17 after considering a host of judgments-Harish Chandra Bajpai and Another –v- Triloki Singh and Another reported in AIR 1957 SC 444 ; Union of India and Ors –v- Major General Madan Lal Yadav (Retd.) reported in (1996) 4 SCC 127 ; Salem Advocate Bar Association, T.N. v. Union of India reported in (2005) 6 SCC 344 ; Kailash –v- Nankhu and Ors. reported in (2005) 4 SCC 480 ; Baldev Singh (supra), Usha Devi (supra), Vidyabai (supra), and State of Madhya Pradesh –v- Union of India and Another (supra). The Court then held that a restrictive meaning has to be given to the expression ‘commencement of trial’. It held as follows: “30. From the aforesaid discussion it is clear that the expression ‘commencement of trial’ in the aforesaid proviso in Order 6 Rule 17 of the Civil Procedure Code has to be interpreted in the light of the legislative intent of the said provision. The purpose for amendment of pleadings is to ensure that substantive adjudication of real controversies on merits are not ignored by unartistic or inarticulate pleadings and ends of justice are not defeated by multiplicity of proceedings. However, the liberal approach to permit amendments was curtailed by 2002 Amendment of Civil Procedure Code, inter alia, to weed out frivolous applications for amendment failed at the post-trial stage to protract proceedings. However, the liberal approach to permit amendments was curtailed by 2002 Amendment of Civil Procedure Code, inter alia, to weed out frivolous applications for amendment failed at the post-trial stage to protract proceedings. To balance the twin requirements of effective adjudication of real controversies and to avoid multiplicity of proceeding on one hand and to prevent such process from being misused by unscrupulous litigants on the other, one requires to give restrictive meaning to the expression ‘commencement of trial’ so that the starting point for restricting amendments to pleadings may commence when the proceedings have reached a matured stage and the stage is set to adjudicate issues on the basis of the evidence filed/led by the parties. 31. Judged from this angle, the expression ‘commencement of trial’ ought to be given a restrictive meaning so as to regulate the amendment of pleadings from the stage when the case is set for recording evidence and not prior to the same when dates are fixed for inspection of documents and/or for complying with other preliminary steps to the commencement of trial. 32. Hence when after framing of issues dates have been fixed for inspection of documents and parties have not even filed their respective documents, as in the instant case, it cannot be said that the trial has commenced.” 8. From the records of this case, it is clear that the written statement had been filed in the year 2014 and the issues were framed in September, 2017. From their own admission, the applicants/defendants have submitted that they came to know of certain new developments in December, 2017. However, it is noted that the present application for amendment has been made in the month of July, 2018, seven months subsequent to them having obtained the information. There is not even a whisper as regards to why the defendants were precluded from making an application within these seven months. In fact, even on the date that the witness action started, there was no application for carrying out the said amendments. In the present matter, not only have issues been framed, but documents have also been filed and the examination-in-chief of the plaintiff’s first witness has commenced. Thus, there is no doubt that in the present case, the trial has commenced for the purposes of Order VI Rule 17. 9. In the present matter, not only have issues been framed, but documents have also been filed and the examination-in-chief of the plaintiff’s first witness has commenced. Thus, there is no doubt that in the present case, the trial has commenced for the purposes of Order VI Rule 17. 9. The applicants/defendants were, thus, required to show that they could not have raised this amendment before trial had commenced despite exercising “due diligence”, which they have failed to do either in the application for amendment or in the course of arguments. 10. The learned counsels for the applicants/defendants have cited various judgments in the course of their arguments. After a thorough consideration of these judgments, I find that they do not lend any support to the issue at hand. In Seth Nanak Chand (supra), amendment of plaint was sought and not written statement, and the case was decided after considering whether a new case was being propounded or not by the amendment sought. Additionally, this case was not hit by the proviso and, hence, is of no help. In Rajesh Kumar Aggarwal (supra), amendment of plaint and not written statement was sought, the factual matrix in the case was not hit by the proviso and the case was decided after considering whether the amendment was inconsistent with what had been stated earlier. Thus, it does not help in deciding the present matter. 11. In Baldev Singh (supra), the Supreme Court held that Courts are more liberal in allowing amendment of written statement. Paragraph 17 of the judgment was relied on by the learned counsels during their arguments, which deals with the meaning of ‘commencement of trial’. The relevant extract of the judgment is delineated below: “…That apart, commencement of trial as used in proviso to Order 6 Rule 16 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments.” 12. However, the amendment in this case was allowed because the parties were yet to even file their documents and trial had not commenced. Later judgments, like Vidyabai (supra) of the Supreme Court and Sayed Mallick (supra) of this Court, have considered Baldev Singh (supra) and clarified that a trial commences once the issues have been framed and the date for filing and inspection of documents has been fixed. Later judgments, like Vidyabai (supra) of the Supreme Court and Sayed Mallick (supra) of this Court, have considered Baldev Singh (supra) and clarified that a trial commences once the issues have been framed and the date for filing and inspection of documents has been fixed. At the risk of repetition, I would like to once again state that the present suit has moved beyond these stages and witness action has also commenced. 13. In Usha Balasaheb Swami (supra), the proviso was again not attracted and, thus, all observations made therein do not consider a scenario where the proviso is attracted. The judgment further considered if admissions made in the written statement can be retracted/withdrawn and these observations are irrelevant to the present case. In Usha Devi (supra), no pronouncement was made as to when a trial commences. The Court therein relied on Sajjan Kumar –v-Ram Kishan reported in (2005) 13 SCC 89 to render its decision since the facts of the two cases were very similar. In paragraph 15 of the judgment, the Supreme Court has clarified that they have not ventured to answer the question of when a trial commences and have simply followed an earlier precedent. In the State of Madhya Pradesh –v-Union of India (supra) an application for the amendment of plaint and not written statement was made. The proposed amendment was ultimately rejected by the Court since there was a delay and the application had been made after the issues had already been framed. This judgment does not delve deeper into when a trial commences and, thus, provides no clarity to the present issue. Even though the amendment was allowed in Modern Tent House (supra), despite the trial having started, the judgment does not discuss or even consider the proviso. The judgment has not distinguished the position as held in Vidyabai (supra). Additionally, it does not lay down any law on when a trial is said to have commenced or on the applicability of the proviso to Order VI Rule 17. Lastly, in Raj Kumar Bhatia (supra) it was held that enquiry into the merits of the amendment must not be made and that an amendment is not dependent on whether the case set up will eventually succeed at trial or not. This case also does not help the applicants/defendants in overcoming the bar set by the proviso. 14. Lastly, in Raj Kumar Bhatia (supra) it was held that enquiry into the merits of the amendment must not be made and that an amendment is not dependent on whether the case set up will eventually succeed at trial or not. This case also does not help the applicants/defendants in overcoming the bar set by the proviso. 14. In my view, the proviso to Order VI Rule 17 of the CPC is mandatory as held in Vidyabai & Ors. (supra). The relevant portion of the said judgment is as follows:- “19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. 20. In Salem Advocate Bar Assn. This Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned trial Judge exceeded its jurisdiction in passing the order impugned before it. It has also not been found that any error of law has been committed by it. The High Court did not deal with the contentions raised before it. It has not applied its mind on the jurisdictional issue. The impugned judgment, therefore, cannot be sustained, which is set aside accordingly. 21. However, we may observe that the question as to whether the documents should have been called for or not by the court without there being the amended written statement before it may be considered afresh.” 15. As held by the Supreme Court, the proviso to Order VI Rule 17 is restrictive and acts as an embargo on the court’s exercise of jurisdiction. As held by the Supreme Court, the proviso to Order VI Rule 17 is restrictive and acts as an embargo on the court’s exercise of jurisdiction. The jurisdiction of a court with respect to allowing amendment of pleadings has now become limited. Unless the condition in the proviso is satisfied, the court does not have any jurisdiction to allow the amendment. Additionally, it is clarified that the word ‘plaint’ in paragraph 19 of Vidyabai (supra) is to be read in the context of the entire judgment and not in isolation. The case is of amendment of a written statement and, hence, the law laid down undoubtedly applies to amendments proposed to be made to a written statement. 16. In light of the above, I am of the view that the present amendments cannot be allowed, simpliciter on the ground that it is hit by the proviso to Order VI Rule 17 of the CPC and the conditions precedent provided therein have not been satisfied. Even though the Court is to follow a liberal approach in allowing amendment of pleadings, I do not think that it can turn a blind eye to the proviso in the course of doing so. I make it clear that as the applicants/defendants have not satisfied me with regard to clearance of the hurdle in the proviso, I have not gone into the merits of the amendment sought to be made. 17. G.A. No. 2115 of 2018 is disposed of. 18. Let all parties act on a server copy of the same.