Allahabad High Court
Brijkishor Neekhara Advocate vs Hari Prakash And 4 Others on 23 October, 2017
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 6424 of 2017
Petitioner :- Brijkishor Neekhara Advocate
Respondent :- Hari Prakash And 4 Others
Counsel for Petitioner :- Rajesh Kumar Dubey
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner.
Present petition has been filed with the following prayer:-
"1. Set aside the impugned judgment and order dated 28.8.2017 passed by respected Upper District Judge/Special Judge S.C./S.T. Act, Jhansi, District Jhansi in S.C.C. Revision No. 21 of 2017 Brijkishore Neekhara Versus Hari Prakash and order dated 3.3.2017 passed by learned the Judge of Small Causes Court Jhansi in S.C.C. Suit No. 70 of 2013 Smt. Laxmi & others vs. Brijkishore Neekhara, Jhansi District Jhansi and further be pleased to allow the Amendment application of the petitioner under Order 6 Rule 17 of the Code of Civil Procedure (Annexure No. 10, 6 and 4 respectively to the Misc. Petition).
2. issue an order or direction in the nature of Justice this Hon'ble Court directing the Small Cause Court, Jhansi not to proceed the S.C.C. Suit No. 70/2013 Smt. Laxmi and others versus Brijkishore Neeekhara pending in the court of Small Cause Court, Jhansi.
3. issue a further order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
4. Award the costs to the Misc. petition of petitioner."
By the impugned order dated 3.3.2017 the application of the petitioner filed under Order 6 Rule 17 CPC was rejected on the ground that the evidence has been concluded and the case is fixed for final hearing and it appears that the application has been filed for delaying the matter. The aforesaid order of the trial court was affirmed in S.C.C. revision filed by the petitioner. Submission of learned counsel for the petitioner is that specific averments have been made in the written statement but the relevant allotment order dated 22.10.1964 specifying the premises in possession of the tenant petitioner could not be placed on record, which is necessary for deciding real controversy between the parties and that a liberal approach in allowing amendment in written statement should be adopted and that delay is no ground for refusal of prayer for amendment of written statement. Hence the impugned orders are liable to be set aside and amendment should be permitted.
Learned counsel for the petitioner has placed reliance in the cases of Usha Balasaheb Swami and others Vs. Kiran Appaso Swami and others 2007 (3) AWC 2728 (SC) and Andhra Bank Vs. ABN Amro Bank N.V. and others 2007 (3) ARC 410.
I have perused the record and the ruling relied on by learned counsel for the petitioner.
In the present case, amendment is being sought after the evidence is over and the case is fixed for final hearing.
Order VI Rule 17 of the Code of Civil Procedure is quoted as under:-
"17. 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 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."
The implication of proviso to Order VI Rule 17 CPC was considered by the Hon'ble Apex Court in the case of Baldev Singh and others Vs. Manohar Singh and another 2006 (6) SCC 498. Paragraph 17 of the aforesaid judgment is quoted as under:-
"Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC 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, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, 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 CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."
This Court has also considered the aforesaid provision in the case of Shailendra Kumar Sharma Vs. Smt. Chandra Kanta Sharma 2016 (3) ARC 69, wherein certain other rulings of Hon'ble Apex Court were also considered and this Court refused to interfere in the orders rejecting the application filed under Order 6 Rule 17 CPC in the light of proviso to Order 6 Rule 17 CPC.
Similar view was taken by this Court in the case of Punjab National Bank, Branch Civil Lines and others Vs. Smt. Shalini Mittal and another 2017 (2) ARC 100 and interference was refused.
Further it may be noticed that earlier by Act 46 of 1999 the aforesaid provision was deleted. It has been restored by Amendment Act 22 of 2002 but proviso has been added by the legislature considering the fact that the unnecessary delay is caused by parties.
The courts below have noticed that evidence has been concluded and several dates were fixed for hearing arguments and therefore, the amendment application was rejected.
In such view of the matter, I am not inclined to interfere in the orders impugned herein. Present petition is devoid of merits and is accordingly dismissed.
Order Date :- 23.10.2017
Lalit Shukla
