Jotiram Shiva Patil & Ors vs Dwarkabai Yashwant Mardane & Ors
2011 Latest Caselaw 97 Bom

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                        IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                              
                                   CIVIL APPELLATE JURISDICTION
                                   WRIT PETITION NO.8653 of 2011




                                                                      
          Jotiram Shiva Patil & Ors.                                             ..  Petitioners
                Versus
          Dwarkabai Yashwant Mardane & Ors.                                      ..  Respondents




                                                                     
          Mr. Prashant S. Bhavake for the Petitioners
          Mr. Surel Shah for the Respondent Nos. 1 to 6

                                                 CORAM :   R.M.SAVANT, J.

                                                   DATE     :   23rd  NOVEMBER,  2011

          P.C. :
                                     
          1        Rule. With the consent of the parties made returnable forthwith and 
                                    
          heard.

          2        The   above   Petition   takes   exception   to   the   Order   dated   1-4-2011 
                

passed by the Learned Principal District Judge, Kolhapur by which Order,

the Application Exhibit 43 and 43A in Regular Civil Appeal No.126 of

2007 filed by the Original Defendant came to be allowed.

3 The brief facts necessary to be cited for adjudication of the above

Petition are stated thus:

The Petitioners herein are the original Plaintiffs in Special Civil Suit

No.294 of 2002, filed by them for specific performance of the contract, for

a direction that the Defendants be directed to execute a sale deed in

respect of the suit property in their favour, and for a further declaration

that the sale deed executed by the Defendant Nos.1 to 5 in favour of the

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Defendant No.6 is not binding upon them.

4 The Respondents herein are the original Defendants who had filed

the said applications Exhibit 43 and 43A. The parties went to trial and the

said suit was dismissed by the Learned Civil Judge Senior Division,

Kolhapur, by his Judgment and Order dated 6-2-2007. Against the said

Judgment and Order passed in the said suit, the Plaintiffs preferred

Regular Civil Appeal No.126 of 2007 in the District Court at Kolhapur. The

said Appeal came to be admitted on 8-6-2007. It is at that stage, that it

came to the notice of the Defendants that the written statement was

signed by only the Defendant No.1 Dwarkabai and was verified by her

only. The Defendants, therefore, moved the said application Exhibit 43 for

permitting the other Defendants to sign the written statement and file the

supporting affidavit in terms of Order 6 of the CPC and the Application

Exhibit 43 A for correcting the verification clause. It was their case in the

said applications that due to inadvertence, the Written statement was not

signed and verified by the other Defendants. The said application was

opposed by the Plaintiffs by filing a reply. It was the contentions of the

Plaintiffs in the said reply that the written statement could not be

amended at such belated stage and that if the written statement is

allowed to be amended, the admission which is in favour of the Plaintiffs

on account of the defect in the written statement, could be taken away.

The Plaintiffs sought to rely upon the Judgments relating to the power of

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the Court under Order 6 Rule 17 of the CPC. On the other hand the

Defendants sought to rely upon the Judgment of the Apex Court reported

in AIR 1969 SC 1267 in the matter of Jai Jai Ram Manohar Lal Vs.

National Building Material Supply, Gurgaon and the Judgment of a

Learned Single Judge of this Court reported in 2002 (Supp.) BomC.R. 8

in the matter of Om Prakash Dinodia Vs. Ashalata wd/o Late Dr.

Anant.

5 The Trial Court considered the said applications Exhibit 43 and 43A

and by holding that the rules of procedure are ultimately the handmaid of

justice and have therefore, to be used to further the cause of justice and

not to oppress it and considering the fact that the trial was conducted

oblivious of the said fact culminating in the dismissal of the suit, found it

fit to allow the said applications as indicated above. It is the said Order

dated 1-4-2011, which is the subject matter of the above petition.

    6      Heard, the Learned Counsel for the parties. 





    7      The   Learned   Counsel   for   the   Petitioners   would   contend   that   in 

terms of Order 6 Rule 14 of the CPC, the parties are obligated to sign the

pleadings and in view of the fact that all the Defendants have not signed

the said written statement, the Trial Court has erred in allowing the said

applications Exhibit 43 and 43A. The Learned Counsel would contend that

the Defendants have not satisfied the due diligence test as laid down by

the Catena of Judgments of the Apex Court as well as this Court. The

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Learned Counsel would contend that there is not a whisper in the

application as to why the amendment to the pleadings could not be

carried out earlier. The Learned Counsel would further contend that by

allowing the said applications Exhibit 43 and 43A, the Trial Court has

virtually taken away a ground available to the Plaintiffs to assail the

decree as in view of the said written statement not been signed by all the

Defendants, the said written statement could not have been accepted as

evidence by the Trial Court.

Per Contra, it is submitted by Shri Shah the Learned Counsel

appearing for the Respondents that the reference to Order 6 Rule 17 of

the CPC is a misnormer as the Defendants by way of the said Applications

Exhibit 43 and 43A were in fact invoking the jurisdiction of the Appellate

Court under Section 153 of the CPC. The Learned Counsel would contend

that signing of the written statement by all the Defendants and correction

of the verification clause, would not amount to amendment of the

pleadings as according to him the pleadings are only those mentioned in

Order 6 Rule 1 and Order 7 Rule 1 of the CPC. The verification clause

according to the Learned Counsel can by no stretch of imagination be

called as pleadings. Hence, the reliance of the Plaintiffs on the Judgment

relating to jurisdiction of this Court under Order 6 Rule 17 of CPC is

misplaced. The Learned Counsel for the Respondents placed reliance on

the Judgment of the Apex court in the matter of Jai Jai Ram Manohar Lal

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(supra), wherein the Apex court has held that the rules of procedure are

intended to be handmaid to the administration of justice and a party

cannot be refused just relief merely because of some mistake, negligence,

inadvertence or even infraction of the rules of procedure. The learned

Counsel also placed reliance on the Judgment of the Learned Single Judge

of this Court in the matter of Omprakash Dinodia (Supra). In the said

case, it is held that the defect as regards not filing of the pleadings is

curable.

Having heard the Learned Counsel for the parties, I have given my

anxious consideration to the rival contentions of the parties.

10 At the outset, it is required to be noted that the parties proceeded to

trial oblivious of the fact that the written statement was signed and

verified only by the Defendant No.1. The perusal of the written statement

discloses that it has been signed and verified by Dwarkabai who is the

Defendant No.1, the suit for specific performance, has been dismissed and

it is only at the time when the appeal filed by the Plaintiffs was kept for

final hearing that the said defect came to light, resulting in the Defendants

filing the said applications Exhibit 43 and 43A. In so far as, the said

applications Exhibit 43 and 43A are concerned, by the said applications,

the correction was sought to the effect of allowing other Defendants to

sign the written statement and to sign the verification clause. The said

application could be referable to section 153 of the CPC which reads thus:

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"S.153. 1The Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding

in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such

proceeding."

11 As can be seen, from the reading of the said provision, the

concerned Court is ceased with the power to amend any defect or error or

any proceeding in a suit and that all necessary amendments shall be made

for the purpose of determining the real question or issue raised by or

depending on such proceeding.

12 Though the Trial Court has proceeded on the premise that the said

applications Exhibit 43 and 43A have been filed invoking Order 6 Rule 17

of the CPC. In my view, the reference to the said provision is erroneous in

view of Order 6 Rule 1 and Order 7 Rule 1 of the CPC.. The permission to

sign the pleadings and to sign the verification clause can by no stretch of

imagination be said to be amendment of pleadings. The signing of the

pleadings and the verification can only be said to be for authenticating

the said pleadings by their proponents. The Trial Court has, therefore,

erred in adverting to Order 6 Rule 17 of the CPC. However, that would not

make any material difference in view of the fact that the Court is

sufficiently ceased with powers under Section 153 of the CPC to permit

the correction of any defect or error in the proceedings so as to facilitate

the determination of the real question before the Court.

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    13     The submissions of the Learned Counsel for the petitioners, in so far 

as, it proceeds on the basis that the amendments are allowed to be carried

out without the Defendants satisfying the due diligence test would

therefore, not stand to scrutiny for the reasons mentioned herein above.

As indicated above, it is not as if the written statement was not signed by

any of the Defendants or not verified. The written statement was

admittedly signed by the Defendant No.1 and was also verified by her.

However, due to inadvertence, the written statement was not signed by

the other Defendants. The parties have proceeded to trial oblivious of the

said fact and the trial concluded in the dismissal of the suit. The

proceedings culminated in the decree of dismissal cannot be nullified on

the basis that there was a defect in the filing of the proceedings as above.

A useful reference could be made to the Judgment of the Learned

Single Judge of this Court in the case of Om Prakash Dinodia (supra)

wherein the Learned Single Judge (A.M.Khanvilkar, J.) in facts almost

identical to the facts of the present case held that the said defect of the

non signing of the plaint by the Plaintiff was curable and could be cured.

Paragraph 5 of the said Judgment can be gainfully reproduced herein

under:

5. Coming to the first point, undisputedly the plaint was not signed by the Plaintiffs when it was filed on 24.1.1975, but signed only by their Advocate. However, when this plea was raised by

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the Petitioner for the first time before the Appellate Court, immediately thereafter the Plaintiffs filed application before the Appellate

Court; and that Court granted permission to sign the plaint. That said Application was contested by the Petitioner, nevertheless the Appellate Court by

its order dated 27th Sept., 1999 allowed the Plaintiffs to sign the plaint. The Appellate Court, therefore, thought it appropriate to permit the Plaintiffs to sign the Plaint. That order,

undoubtedly, was not challenged by the Petitioner.

However, once again the same plea was raised before the Appellate Court at the time of final hearing of the Appeal. The Appellate Court, in my

view, rightly observed that since the order passed on 27th Sept., 1999 was allowed to become final,

therefore, the same question cannot be repaginated at the time of final hearing of the Appeal. No fault can be found with the said

reasoning. However, the argument before this Court is that is open to the Petitioner to challenge the order passed on 27th Sept. 1999 in the present writ petition and this Court will have to examine

the correctness of the said order. However, on perusal of the reliefs claimed in the Writ Petition it

would be seen that no relief for setting aside the order dated 27th Sept., 1999 has been specifically prayed. To get over this, the Counsel for the petitioner submits that in ground No. (d) of this

petition the Petitioner has raised the point about the said defect in the plaint. In my view, this argument is one of desperation. If the Petitioner was serious enough in challenging the order passed on 27th Sept., 1999, he ought to have done

with utmost diligence. It was open to the Petitioner to specifically challenge the said order in this petition, which has not been done. Moreover, on examining the said ground on which the Petitioner relies to contend that he could challenge the said order before this Court, it would be seen that there is no clear challenge to the reasons recorded by the Appellate Court in its order dated 27th Sept., 1999, but vague and general contention has been raised. In my view, the ground as articulated

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would not be sufficient to question the correctness of the order dated 27th Sept., 1999. The Appellate Court has rightly discussed the ratio of the

decisions to observe that provisions of Order 6 Rules 14 and 15 are merely procedural and such defects can be cured even at a latter stage of the

proceedings. In this view of the matter, the first contention raised on behalf of the Petitioner, to my mind, is wholly misconceived and the same is, therefore, rejected."

14 It is trite that in so far as, the rules of procedure are concerned, they

are the hand maid of justice and have to be utilized for the furtherance of

the cause of justice rather than to oppress it. A party cannot be refused

relief merely because there was some error or mistake or negligence on its

part as ultimately the substance has to be seen and not the form. A useful

reference could be made to the Judgment of the Apex Court in in Jai Jai

Ram Manohar Lal (supra).

15 Having considered the impugned order passed by the Trial Court

dated 1-4-2011 and the reasons mentioned therein for allowing the said

applications Exhibit 43 and 43A, in my view, there is no irregularity or any

error of wrongful exercise of jurisdiction by the Trial Court in allowing the

said Applications for this Court to interfere in its supervisory jurisdiction

under Article 227 of the Constitution of India. The Writ Petition is

accordingly dismissed.

    16     Rule discharged with no order as to costs.

     

                                                             (R.M.SAVANT, J.)