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IN THE HIGH COURT OF JUDICATURE AT
BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1434 OF 2016
1 Smt. Shakuntalabai wd/o. Shaligram
Chaurasia,
Aged about 70, Occ. Household,
2 Shri. Shirkant s/o. Shaligram Chourasia
Aged about 40, Occ. Business,
Both R/o. House No. N/62,
Opp. Bank of Maharashtra,
Kasar Oli, Kamptee,
Dist. Nagpur ...APPELLANT
// VERSUS //
Smt. Tarabai w/o.Rameshwar Sharma,
Aged 66 years, Occ. Business,
R/o. Opp. Gangamata Mandir, Juni Oli,
Kamptee,
Dist. Nagpur ...RESPONDENT
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Mr.A.A.Gharote, Advocate for Appellants
None for Respondent
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CORAM: KUM. INDIRA JAIN, J.
DATE : JUNE 30,2017.
ORAL JUDGMENT:
Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties.
2 This petition takes an exception to the order below Exh. 63 passed on 21.11.2015 by the learned Civil Judge, Junior Division, Kamptee, Dist. Nagpur in Regular Civil Suit No. 56/2012. 3 The facts giving rise to the petition may be stated in brief as under:
The petitioners are the plaintiffs in Regular Civil Suit No. 56 of 2012. The suit for Specific Performance of Contract with a relief of permanent injunction came to be instituted by them against the respondent. The Trial Court framed issues in the suit. Thereafter, on 11.6.2015, plaintiffs moved ::: Uploaded on - 10/07/2017 ::: Downloaded on - 28/08/2017 08:32:32 ::: 3 jwp1434of16.odt an application (Exh. 63) for amendment in plaint under Order VI Rule 17 of the Code of Civil Procedure. Respondent objected the said application. Upon hearing the parties, Trial Court came to the conclusion that hearing of suit has commenced and application under Order VI Rule 17 of the Code of Civil Procedure, is not maintainable. Consequently, application Exh. 63 has been rejected. Hence, this petition. 4 Heard Shri. Gharote learned counsel for petitioners. The learned counsel placed reliance on the decision of the Hon'ble Apex Court in Baldev Singh & Ors Vs. Manohar Singh & Anr (AIR 2006, SC, 2832) and of this Court in the case of Mahadeo Vs. Balaji (2012,(5)BCR, 777) and submitted that framing of issues would not amount to commencement of trial in suit but trial commences on filing of an affidavit in lieu of examination in chief.
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5 Submission is that order is against the settled
position of law and needs to be set aside. 6 With the assistance of the learned counsel for petitioners, this Court has gone through the impugned order. The observations of Trial Court would indicate that issues were framed in suit and so application for amendment under Order VI Rule 17 of the Code of Civil Procedure can not be entertained as trial has commenced. 7 In Baldeo Singh & Others (supra), the Hon'ble Apex Court in para no. 16 observed thus:
"Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the Code of Civil Procedure provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, ::: Uploaded on - 10/07/2017 ::: Downloaded on - 28/08/2017 08:32:32 ::: 5 jwp1434of16.odt examination of witness, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement of any stage of the proceedings."
8 This Court in case of Mahadeo Vs. Balaji (supra) has also taken the same view and held that trial in a Civil Suit commences from the date of filing of affidavit in lieu of examination in chief of the witness/es.
9 In view of the above settled preposition of law this Court finds that Trial Court has committed an error of law in observing that the trial in suit commenced on framing of issues. Hence, interference is warranted in writ jurisdiction.
(i) Writ petition no. 1434 of 2016 is allowed.
(ii) Impugned order dated 21.11.2015 passed below Exh. 63 by the learned Civil Judge Junior ::: Uploaded on - 10/07/2017 ::: Downloaded on - 28/08/2017 08:32:32 ::: 6 jwp1434of16.odt Division, Kamptee in Reg. Civil Suit No.56/2012 is quashed and set aside.
(iii) Application (Exh. 63) is allowed.
(iv) Amendment shall be carried out within two weeks.
(v) Trial Court to proceed with the suit in accordance with the law.
(vi) Rule is made absolute in above terms.
(vii) No costs.
(KUM.INDIRA JAIN, J.) belkhede, PA ::: Uploaded on - 10/07/2017 ::: Downloaded on - 28/08/2017 08:32:32 :::