Bombay High Court

Girish Bapusaheb Bhor vs Ambadas Chandrabhan Perne on 1 December, 2014

Bench: R.V. Ghuge

                                        1
                                                                  6715.2014 WP

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY,




                                                                      
                      BENCH AT AURANGABAD

                    WRIT PETITION NO. 6715 OF 2014




                                              
     Girish S/o Bapusaheb Bhor,
     Age 40 years, Occu. Agril,




                                             
     R/o Tandulwadi, Tq. Rahuri,
     Dist. Ahmednagar                                   ...         Petitioner


           VERSUS




                                    
     Ambadas S/o Chandrabhan Perne,
                      
     Age 76 years, Occu. Agril,
     R/o Tandulwadi, Tq. Rahuri,
     Dist. Ahmednagar.                                ...      Respondent
                     
                                    .....
     Mr. R.R. Karpe , Advocate for petitioner
     Mr. S.P. Brahme, Advocate for respondent
                                    .....
      


                              CORAM : RAVINDRA V. GHUGE, J.

DATED : 1st DECEMBER, 2014

ORAL JUDGMENT :

1. Heard. Rule. Rule made returnable forthwith and heard

finally by the consent of the parties.

2. The petitioner has raised a grievance on account of the

application under Order VI Rule 17 of the Code of Civil Procedure,

having been rejected by the impugned order dated 10-07-2014.

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3. The petitioner is the original defendant in R.C.S. No. 176 of

2008. Upon the institution of the said suit, the petitioner filed his

written statement along with a counter claim on 05-07-2008.

Prayers made in the written statement and the counter claim

indicate that the petitioner had reserved a right to amend the

written statement and the counter claim, in the event a T.I.L.R. is

appointed and pursuant to the local inspection carried out by the

T.I.L.R., it is revealed ig that the respondent/ plaintiff has

encroached upon the land of the petitioner/ defendant.

4. The respondent/ plaintiff had stated in its plaint that a

T.I.L.R. would be required to be appointed for carrying out

measurement of the suit properties, for fixing the boundaries and

submitting a report along with a map. Application dated

02-05-2008 Exhibit 7 was also filed by the respondent herein for

the said purpose.

5. The petitioner placing reliance on prayer clause 6-B in the

written statement and counter claim, submits that the respondent/

plaintiff moved the application Exhibit 7 dated 02-05-2008 seeking

appointment of a T.I.L.R. as Court Commissioner under Order

XXVI Rule 9. The petitioner offered his reply at Exhibit 16 to the

said application Exhibit 7, on 05-07-2008 along with the written

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statement. In the said reply, the petitioner reiterated that the

Court Commissioner shall mention in his report and indicate in his

map, any encroachment caused by the respondent/ plaintiff on

the land of the petitioner/ defendant.

6. It is undisputed that the T.I.L.R. was appointed by order

dated 12-09-2008 and he has submitted his report on 16-07-2009

along with a map.ig It is also not disputed that both the parties

have the knowledge about the report and the map.

7. The petitioner moved an application below Exhibit 64 on

07-11-2013 seeking amendment to the written statement and the

counter claim by invoking order VI Rule 17 of the Code of Civil

Procedure. It is undisputed that the respondent/ plaintiff has filed

an affidavit in lieu of examination-in-chief on 05-08-2013.

8. The application filed by the petitioner Exhibit 64 was

rejected by the impugned order dated 10-07-2014. Grievance of

the petitioner is that the Trial Court has lost sight of a material

aspect in the matter, which is, that the petitioner had reserved his

right to amend the written statement and counter claim and thus

exercised his right by preferring application Exhibit 64. It is,

therefore, canvased that neither can the petitioner be said to have

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delayed the proceedings, nor could it be said that the petitioner

was not diligent.

9. Further submission of the petitioner is that when the

examination-in-chief is filed on 05-08-2013, Exhibit 64 filed on

07-11-2013 can, at the most, be said to have been filed after three

months from commencement of the trial. It is, therefore,

canvassed that a period of three months can be said to be a minor

delay and the respondent could be compensated with costs by

condoning three months delay.

10. It is further submitted by the petitioner that the ultimate

object of law in a trial ought to be that ends of justice are met and

no party is subjected to any prejudice on account of technicalities

if the merits involved in the matter are overwhelming. Ultimately, it

has to be ensured that there is no permanent deficiency or dent

left in the trial.

11. The petitioner has relied upon the judgment of the Apex

Court in the case of Chander Kanta Bansal Vs. Rajinder Singh

Anand, reported at 2008 (0) BCI 305. Paragraph Nos. 9 and 10 of

the said judgment have been specifically pointed out. It is prayed

that the petition be allowed by quashing the impugned order and

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Exhibit 64 be allowed in order to enable the petitioner to amend

the written statement and the counter claim.

12. Shri Brahme, learned Advocate appearing on behalf of the

sole respondent has vehemently opposed the petition. Contention

is that the petitioner has in fact advanced prayers in the prayer

clause of the written statement which tantamount to be prayers

made in the alternative. The petitioner by filing the amendment

application Exhibit 64 intends to delay the matter so as to tire out

the respondent/ plaintiff.

13. He further submits that in the reply filed by the petitioner to

application Exhibit 7 (filed by the respondent for seeking an

appointment of a T.I.L.R.) it is sufficiently canvassed that the

T.I.L.R. should observe in his report and indicate in his map any

encroachment committed by the respondent/ plaintiff on the land

of the petitioner/ defendant. Shri Brahme further submits that in

prayer clause 6-B to the written statement, it is further prayed by

the petitioner that the agricultural yield of that portion of the land

on which the respondent may have caused an encroachment,

should also be recovered from the respondent/ plaintiff and be

paid to the petitioner/ defendant.

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14. Shri Brahme further submits that the petitioner should have

preferred Exhibit 64 in the event an amendment was seriously

required after the T.I.L.R. submitted his report on 16-07-2009.

The petitioner has waited for 4 years and 3 months for moving the

said application which can only be said to be on account of

delaying the matter.

15. The respondent has placed reliance upon the judgment of

the Apex Court in the case of Vidyabai & Ors. Vs. Padmalatha &

Anr., reported at 2008 (0) BCI 555. My attention is drawn to the

observations made in paragraph 8 as well as the observations in

paragraph 43 of the Salem Advocate Bar Assn. Vs. Union of

India, reported at [(2005) 6 SCC 344]. Further reliance is placed

upon paragraph 12 to 15 in Vidyabai and others judgment

(supra). It is, therefore, prayed that the petition be rejected with

costs.

16. So far as the factual matrix involved in the matter is

concerned, there is no dispute as regards the dates and events

narrated by the petitioner. The issue, therefore, is as to when did

the cause of action arise so as to prompt the petitioner to file an

application seeking amendment to the written statement and

counter claim.

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17. It is undisputedly clear from the contentions of the petitioner

and which have been admitted by the respondent that the written

statement and counter claim was filed on 05-07-2008. The reply

Exhibit 16 to the application for appointment of T.I.L.R. Exhibit 7

was also filed on 05-07-2008. The prayer clause 6-B set out in

the written statement and the prayer made in the reply of the

petitioner Exhibit 16 clearly indicate that the petitioner was aware

about the possible appointment of the T.I.L.R. and the possibility

that the encroachment caused by the respondent/ defendant could

be evident from the report and the map.

18. In fact, the reply to the application for appointment of a

Court Commissioner is in the nature of consenting to the

appointment of T.I.L.R. as a Court Commissioner, with a request

that any encroachment as may be visible in the local inspection

caused by the T.I.L.R. should be set out in the report and should

be indicated in the map.

19. In my view, therefore, it could not be said that the petitioner

was unaware about the contents of the T.I.L.R.'s report and its

effect. The prayers made in the written statement as well as in

the reply to the appointment of T.I.L.R. application, clearly

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indicate that the petitioner was geared up to meet the situation of

encroachment becoming visible from the report of the T.I.L.R.

and for that purpose the petitioner had reserved his right to

amend the written statement and the counter claim.

20. In order to entertain the contention of the petitioner that this

petition be allowed, the issue that needs to be decided is as

regards due diligence. It needs to be scrutinised as to whether

the petitioner has offered any explanation for not moving an

application for amendment immediately after the report dated

16-07-2009 was filed by the T.I.L.R. and whether it could be

stated that despite due diligence, it could not have dawned upon

the petitioner for 4 years and 3 months that an amendment would

be necessary to the counter claim.

21. In my view, upon going through the application Exhibit 64

and the prayer clauses set out in the written statement as well as

say Exhibit 16, it needs to be concluded that the petitioner was

aware of the situation and in fact was prepared to meet the

situation.

22. The application Exhibit 64 filed for seeking amendment

does not in any manner explain away the time wasted by the

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petitioner from 16-07-2009 till 05-08-2013 when the respondent/

plaintiff led evidence through an affidavit. There is no whisper in

application Exhibit 64 to justify two things, firstly, what prevented

the petitioner from not moving the application for the said period

of four years and three months and secondly, whether the

petitioner could not have moved the said application despite due

diligence.

23.

I find that the application Exhibit 64 is totally silent on these

aspects which are decisive and material in this case. Neither any

explanation is forthcoming as to why the application was not

moved for more than four years, nor has the petitioner explained

as to what were the circumstances which prevented him from

filing the application despite exercising due diligence.

24. In the Chander Kanta Bansal's case (supra), the

conclusions drawn by the Apex Court in paragraph 9 and 10 are

as follows :-

9) With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays

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down that no application for amendment shall be

allowed after the commencement of trial, 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of

amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.

10) The entire object of the said amendment is to stall

filing of applications for amending a pleading subsequent to the commencement of trial, to avoid

surprises and the parties had sufficient knowledge of the others case. It also helps in checking the delays in filing the applications. Once, the trial commences on the

known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the

court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later

application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.

I am in respectful agreement with the view of the Apex

Court.

25. The Apex Court has thus held that unless the Court comes

to the conclusion that despite due diligence a party could not have

raised the matter before commencement of trial, no amendment

be permitted. It is also observed that the aspect of due diligence

would depend upon the facts and circumstances of each case. As

such, while concluding that there is no complete bar on the

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powers of the Trial Court to allow any application for amendment

after trial, the note of caution indicated by the Apex Court is

visible in paragraph Nos. 9 & 10 of the Chander Kanta Bansal's

case (supra).

26. In the case of Vidyabai & Ors. (supra), the conclusions

drawn by the Apex Court from paragraph Nos. 12 to 14 are as

under :-

12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and Others v. Manohar Singh and

Another [(2006) 6 SCC 498], wherein it was opined:

"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 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 hereinbefore, 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 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.

It is not an authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the

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documents were yet to be filed and, therefore, it was

held that the trial did not commence.

13. Reliance has also been placed by Ms. Suri on

Pradeep Singhvi and Another v. Heero Dhankani and Others [(2004) 13 SCC 432]. Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure had no

application.

Reliance has also been placed by Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others [(2006) 4 SCC 385]. No doubt, as has been held by this

Court therein that the court should allow amendments that would be necessary to determine the real question

of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side.

14. 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 VI, 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.

27. The Apex Court has thus, placing reliance upon the Salem

Advocate Bar Assn.'s case (supra) and in the case of Rajesh

Kumar Aggrawal and others V. K.K. Modi and others, reported

at [(2006) 4 SCC 385], has concluded that the real controversy if

can be resolved by an amendment, needs to be permitted.

However, it is also cautioned that the Court would not have the

jurisdiction to allow the application if it is noticed that there is an

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absence of due diligence as it would dis-entitle the concerned

litigant from seeking an amendment.

28. In the light of the above, I find that this petition is devoid of

merit. However, in the light of the prayers in paragraph 6-B of the