Prabhakar Sadashiv Gokhale And ... vs Ramesh Shankar Ladkat (H.U.F.) ...
2017 Latest Caselaw 3803 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO. 365 OF 2017


Prabhakar Sadashiv Gokhale and Another                          ..Petitioners
              Vs.
Ramesh Shankar Ladkat and Others                                ..Respondents


Mr. R. V. Govilkar i/b Mr. Mihir Govilkar, for the Petitioners
Mr. S. G. Deshmukh a/w Mr. Rayrikar Sanjay Dhundiraj, for
Respondent No.1.
                                    CORAM :- B. P. COLABAWALLA , J.

DATE :- JUNE 30, 2017.

ORAL JUDGMENT(PER B. P. COLABAWALLA,J.)

By this Writ Petition filed under Article 227 of the

Constitution of India the Petitioners seek quashing and setting

aside of the judgment and order dated 5th November, 2016 passed

below Exhibit-17 by the Adhoc District Judge-1, Pune dismissing

Exhibit-17 and confirming the order dated 29th August, 2016

passed by the 7th Additional Judge, Small Causes Court, Pune in

Civil Suit No.371 of 2013.

2                  The application (Exhibit-63) that was rejected by the


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Trial Court was an application seeking amendment of the Written

Statement of Defendant Nos.2 and 3. This application came to be

filed on 19th July, 2016. The Trial Court as well as the Revisional

Authority were of the opinion that since the amendment

application was filed after the commencement of the trial as

contemplated under the proviso to Order VI Rule 17, Defendant

Nos.2 and 3 were was duty bound to show that the amendments

that were now sought, could not be raised before commencement

of trial despite due diligence on the part of the said Defendants.

3 Very few facts need to be noted to decide the present

controversy. The Suit was filed by Respondent No.1 herein (the

Plaintiff) being Suit No.371 of 2013. This Suit came to be filed on

22nd November, 2013. After the writ of summons was served on

the Defendants, the Petitioner herein (Defendant Nos.2 and 3

before the Trial Court) filed their Written Statement on 21st

August, 2014. Thereafter, the Trial Court framed the issues on

9th December, 2015 and the Plaintiffs filed their affidavit of

evidence before the Trial Court on 22nd January, 2016.

Thereafter, the matter was adjourned for cross examination of the

Plaintiff's witness. It is only thereafter, on 19th July, 2016, the

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amendment application was filed (Exhibit-63) on behalf of

Defendant Nos.2 and 3.

4 In this factual backdrop, Mr. Govilkar, the learned

counsel appearing on behalf of Defendant Nos.2 and 3 submitted

that the Trial court as well as the Revisional Authority have

completely gone wrong in rejecting the amendment application

filed by Defendant Nos.2 and 3. Mr. Govilkar submitted that as

per Order VI Rule 17, the primary consideration is for the Court to

see whether the amendment was necessary for the purpose of

determining the real questions in controversy between the

parties. Instead of examining the amendment application from

this angle, the Courts below have rejected the amendment

application only on the ground that since the trial had

commenced, the amendment could not be allowed unless the Court

came to the conclusion that in-spite of due diligence the parties

seeking the amendment could not have raised the matter before

the commencement of the trial. He submitted that this approach

of the Courts below was contrary to the express language of Order

VI Rule 17 of the CPC, and therefore, required interference by me

under Article 227 of the Constitution of India.

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5                  On the other hand, Mr. Deshmukh, the learned counsel

appearing on behalf of Respondent No.1 (original Plaintiff)

submitted that both the authorities below have correctly

interpreted Order VI Rule 17 and the proviso thereto to come to

the conclusions that they have. He submitted that it is now well

settled that if amendments are sought after the commencement of

the trial, the Court would have no jurisdiction to allow such an

amendment unless it is satisfied that despite due diligence the

matters which forms the subject matter of the amendment could

not be brought on record prior to the commencement of the trial.

This being the case, Mr. Deshmukh submitted that there is

absolutely no infirmity in the impugned orders, and therefore, the

Writ Petition ought to be dismissed.

6 I have heard the learned counsel for the parties at

length and have perused the papers and proceedings in the Writ

Petition. I have also given my anxious consideration to both the

impugned orders. As can be seen the sequence of events set out

earlier, it is not in dispute that the amendment application filed by

Defendant Nos.2 and 3 was after the commencement of the trial.

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This is clear from the fact that issues were framed as far back as

on 9th December, 2015 and the affidavit of evidence of the

Plaintiffs was also filed on 22nd January, 2016. It is only

thereafter that the amendment application was filed on 19th July,

2016. This being the factual position, it cannot be disputed, and in

fact Mr. Govilkar fairly conceded, that the amendment application

has been filed after the commencement of the trial. This being the

factual position, I now have to consider what would be the effect of

this factual position on the amendment application filed by

Defendant Nos.2 and 3. Amendment of pleadings is dealt with in

Order VI Rule 17 which reads 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."

7 Order VI Rule 17 clearly stipulates that the Court may

at any stage of the proceedings allow either party to alter or

amend these 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 question in

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controversy between the parties. In 2002, a proviso was added to

Rule 17 which clearly states 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

seeking amendment could not have raised the matter before the

commencement of trial. What the proviso clearly stipulates and

what the Legislature clearly intended was to curtail the discretion

that was granted to the Court to grant the amendment in the main

part of the Rule. The effect of the proviso is clearly mandatory. It

clearly stipulates that no application for amendment "shall" be

allowed after the trial had commenced unless the condition as set

out in the said proviso is fulfilled. In other words, what the

proviso stipulates is that the Court is barred from allowing any

amendment after the trial has commenced unless the condition

set out in Order VI Rule 17 is satisfied.

8 The view that I have taken is now well settled by a

catena of decisions of the Supreme Court. However, for the sake of

clarity, a reference to a decision of the Apex Court in the case of

Vidyabai and Others v/s Padmalatha and Another

reported in (2009) 2 SCC 409, would be apposite. The

Supreme Court has in fact considered this very proviso and

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thereafter in clear and unambiguous terms stated that it is in a

mandatory form and the Court's jurisdiction to allow an

amendment application is taken away unless the condition

precedent as set out in the said proviso is satisfied. Paragraphs

10 and 19 of this decision are relevant for our purpose and read

thus:

"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: "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."

It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial."

"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 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."

(emphasis supplied)

9 This decision of the Supreme Court has also been

followed by a Single Judge of this Court in the case of Chhabubai

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Haribhau Badakh v/s S. H. Khatod and Sons and Another

reported in 2009 (6) Mh L. J. 760. This Court, after relying

upon the decision of the Supreme Court in the case of Vidyabai

(supra), held as under:-

"It is thus clear that if the amendment is sought after the commencement of trial, unless the court comes to the conclusion that in spite of exercise of due diligence, the party could not have raised the matter before the commencement of trial, the amendment cannot be allowed. In the present case, leave aside any averment regarding due diligence, the there is not even a whisper in the written statement about same. The only statement is that while filing the written statement the fact regarding said Mr. Parik being General Power of Attorney Holder could not be mentioned due to inadvertence. In that view of the matter, I am of the considered view that the learned trial court had no jurisdiction to entertain the amendment as there is nothing on record to show that the matter which was sought to be brought on record could not have been brought on record before the commencement of trial in spite of exercise of due diligence by the respondents/defendants."

(emphasis supplied)

10 This being the clear position in law, the only thing that

I have to now examine is whether Defendant Nos.2 and 3 had

exercised due diligence and despite that they could not bring the

subject matter of the amendment on record of the Trial Court

before the commencement of the trial. In this regard the

observations of the Revisional Authority are quite germane. The

Revisional Authority has categorically recorded that in paragraph

2 of the application (Exhibit-63) in last 4 to 5 lines, the only

averment made is that all this information was received by the

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Defendants after filing their Written Statement. There is nothing

in the application as to from whom they got information and from

whom they collected documents which are sought to be brought on

record and filed along with the amendment application (Exhibit-

63). All these documents are of the year 2010 and 2013. In fact

on going through the application, I find that the averments therein

are as vague as they can be. There is no date mentioned at all as

to when all these documents have come to the knowledge of

Defendant Nos.2 and 3. It is in this light that the Courts below

came to the conclusion that Defendant Nos. 2 and 3 had failed to

demonstrate that despite due diligence, Defendant Nos.2 and 3

could not bring these documents on record before commencement

of the trial. I find that this finding is not only in consonance with

the facts on record but certainly does not suffer from any

perversity and/or error apparent on the face of the record that

would warrant my interference under Article 227 of the

Constitution of India.

11 Before parting, it would only be appropriate to deal

with the three decisions cited by Mr. Govilkar which are as

follows:-

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(i)       Pradeep Singhvi and Another v/s Heero Dhankani

          and Others reported in (2004)13 SCC 432.

(ii) Abdul Rehman and Another v/s Ruldu and Others

reported in (2012) 11 SCC 341.

(iii) Unreported decision of a Single Judge of this Court

(Goa Bench) in the case of Mr. Robert Lobo and

Another v/s Mr. Alwyn Rodrigues and Others(Writ

Petition No.413 of 2015 decided on 9 th June,2015).

12 As far as the first decision of the Supreme Court is

concerned, namely Pradeep Singhvi(supra) , I find that this

decision does not lay down any law as is sought to be contended by

Mr. Govilkar. It is merely a one page order and does not lay down

any ratio. I, therefore, find that the reliance placed on this

decision is of no use to the Petitioners.

13 As far as the decision of the Supreme Court in the case

of Abdul Rehman (supra) is concerned, the fact situation

before the Supreme Court in that case was totally different from

the factual matrix before me. In fact, the Supreme Court has not

held that despite commencement of the trial and despite the party

seeking amendment demonstrating no due diligence, the

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amendment could still be allowed. In fact, when I went through

the facts of this case, it is clear that amendment was sought prior

to the commencement of the trial as contemplated under the

proviso to Order VI Rule 17 of the CPC. This judgment is therefore

clearly distinguishable on facts and hence of no assistance to the

Petitioners.

14 As far as the decision of a Single Judge of this Court in

the case of Mr. Robert Lobo(supra) is concerned, I find that

the learned Judge has clearly observed that the question of

showing due diligence for not filing such an application for

amendment before the commencement of trial would not arise in

the facts of that case as it was the contention of the Petitioners

that they had learned about such documents in April 2014 which

was much after the trial had started and there was no material to

the contrary. In other words, the learned Judge was of the view

that the condition precedent as set out in the proviso to Order VI

Rule 17 was clearly satisfied. I, therefore, find that even this

decision has no application to the facts and circumstances of the

present case and does not carry the case of Defendant Nos.2 and 3

any further.

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15                 For all the foregoing reasons I find no merit in this

Writ Petition. It is accordingly dismissed. However, there shall be

no order as to costs.

16 It is however clarified that during the cross

examination of Plaintiffs, if Defendant Nos.2 and 3 wish to produce

any documents to confront the Plaintiffs in cross examination,

this order will not get in their way, if they are otherwise entitled to

do so in law.

                                          ( B. P. COLABAWALLA, J.)




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