Bombay High Court
Smt. Shakuntalabai Wd/O. ... vs Smt. Tarabai W/O. Rarmeshwar ... on 30 June, 2017
Bench: I.K. Jain
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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
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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,
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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
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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
