Rajesh Sharma vs Krishan Pal & Anr.
2011 Latest Caselaw 4454 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                    Judgment Pronounced on: 13.09.2011

+ CS(OS) No. 800/2006

Rajesh Sharma                          ..... Plaintiff
            Through: Mr. Siddharth Bambha, Advocate

                     versus

Krishan Pal & Anr.                        ..... Defendant
        Through: Mr. Sunil Malhotra, Advocate &
        Mr. Abhishek Puri, Advocate

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                        Yes.

2. To be referred to the Reporter or not?                 Yes.

3. Whether the judgment should be reported                 Yes.
   in Digest?

V.K. JAIN, J. (ORAL)

IA No. 4452/2011 (u/O 6 Rule 17 CPC)

1. Vide this application the plaintiff wants to amend

the plaint so as to add the relief of possession of the suit

property in the prayer clause. The plaintiff had initially

claimed declaration that the sale deed dated 16 th January,

2006 executed in respect of suit property is null and void.

He also sought cancellation of the aforesaid sale deed and a

declaration that he is the owner in possession of the suit

land. An injunction was also sought restraining the

defendants from dispossessing him from the suit property

and getting it mutated in the name of the defendant No.1.

2. In the application under consideration it has been

alleged that during pendency of the suit, the defendants on

10th December, 2009, forcibly dispossessed the plaintiff

from the suit property, in disregard to the status quo order

passed by the Court. The plaintiff therefore wants to amend

the plaint so as to add the relief of possession of the suit

property.

3. The application has been opposed by the

defendants on the following three grounds:

a) the plaintiff was not in possession of the suit property

when the suit was filed,

b) the jurisdiction of Civil Court to grant relief of

possession is barred by Section 185 of Delhi Land

Reforms Act, and

c) the proposed amendment is hit by the proviso to Order

6 Rule 17 of the Code of Civil Procedure.

4. It is settled proposition of law that while

considering an application for amendment of pleadings, the

Court cannot go into truthfulness or otherwise of the

averments sought to be made by way of proposed

amendment. Hence, there is no merit in the first objection

taken by the defendants. In this regard, the following view

taken by Supreme Court in Rajesh Kumar Aggarwal & Ors.

v. K.K.Modi & Ors. JT 2006(3) SC 607 is pertinent:

While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.

5. As regards the plea that the jurisdiction of Civil

Court to grant possession of the suit property is barred by

Section 185 of Delhi Land Reforms Act, the question cannot

be examined by the Court while considering an application

for amendment of the plaint. If the amendment is allowed,

the defendants will have an opportunity to file Written

Statement to the amended plaint and it will be open to them

to take objection with respect to exclusion of the jurisdiction

of the Civil Court. That would be the appropriate stage to

deal with this issue. I, therefore, find no merit in the second

objection as well.

6. Coming to the last objection, the proviso to Order 6

of the Code of Civil Procedure, to the extent it is relevant,

provides that no application for amendment shall be allowed

„after the trial has commenced‟ unless the Court is satisfied

that inspite of due diligence, the applicant could not have

raised the matter before the commencement of trial.

7. The question which comes up for consideration is

as to whether it can be said that a trial had commenced in

this case, when this application was filed. A perusal of the

record would show that issues in this case were framed on

13th November, 2009 when the parties were also directed to

file list of witnesses within four weeks and plaintiff was

directed to file evidence by way of affidavit for examination-

in-chief within eight weeks. Thereafter, IA No. 15052/2009

was filed by defendant No.1 under Order 13 Rule 1&2 CPC,

which came to be disposed of on 25th March, 2011. In the

meantime, the Joint Registrar had vide order dated 25 th

February, 2010 listed the matter for plaintiff‟s evidence on

18th August, 2010. Despite the orders to this effect,

affidavits by way of evidence have not been filed by the

plaintiff till date.

8. The question as to whether or not the trial can be

said to have commenced when issues are framed and the

case is listed for trial or not, came up for consideration

before this Court in Mohd. Saleem & Ors. v. Naseer

Ahmed AIR 2007 Delhi 48 and Link Engineer (P) Limited

v. M/s Asea Brown Boveri Limited & Ors. 140(2007) DLT

533. In Mohd. Saleem (Supra), the issues were framed but

before the evidence could be led, the petitioner filed an

application seeking to amend the plaint to incorporate the

relief of possession; the amendment was disallowed by the

trial Court. During the course of the judgment, this Court

inter alia observed as under:

9. In Indian Bank v. Mahrashtra State Co-operative Marketing Federation Ltd. (1998) 5 SCC 69 : (AIR 1998 SC 1962), the Supreme Court followed its earlier decision in Harish Chandra Bajpai v. Triloki Singh, AIR 1957 SC 444 holding that in a limited sense, „trial‟ means only the final hearing of a petition consisting of examination of witnesses, filing of documents and addressing of arguments.

10. The word „trial‟ as described in Black‟s Law Dictionary (7 th Edition) at page 1510 means:-

"Trial: A formal judicial examination of evidence and determination of legal claims in an adversary proceeding."

x x x

13. The matter is really no more res integra in view of the observations of the Apex Court recently made in Baldev Singh v. Manohar Singh (2006) 6 SCC 498: AIR 2006 SC 2832 "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 the 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 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."

Allowing the petition filed by the petitioner, this

Court concluded as under:

14. The conspectus of the aforesaid pronouncements and definitions as to when a commencement of trial takes place leaves no manner of doubt that it refers to

a stage after framing of issues and after the hiatus period thereafter where steps have to be taken to start the trial by examination of witnesses whether in the form of filing of affidavits or otherwise.

15. In view of the aforesaid position, it cannot be said that on framing of issues itself the trial has commenced and thus the proviso to Rule 17 of Order 6 of the said Code would come into play.

9. In Link Engineering (P) Limited (supra), the

issues were framed on 28th August, 2006 and on the same

date, the parties were directed to file their list of witnesses

within six weeks and the plaintiff was directed to file

affidavits of witnesses within eight weeks. 4th December,

2006 was fixed for recording of evidence. The facts of the

case were thus almost identical to the facts of the case

before this Court. The plaintiff in that case filed an

application on 17th November, 2006 seeking amendment of

the plaint. The application was opposed by the defendants

on the ground that in view of the proviso to Order 6 Rule 17

Code of Civil Procedure, the plaintiff could not be permitted

to amend the plaint at that stage. After considering the

decision of Supreme Court in Baldev Singh & Ors. v.

Manohar Singh & Anr. (2006) 6 SCC 498, Rajesh Kumar

Aggarwal & Ors. v. K.K.Modi & Ors. (supra) and

Ajendraprasadji N. Pande and Anr. v. Swami

Keshavprakeshdasji N. & Ors. (2007) 1 JT 579 and also the

decision of this Court in Mohd. Saleem (supra), it was held

that the trial did not commence on 28th August 2006 when

the issues were framed and as per the practice of the Court

directions were passed for filing of list of witnesses and

affidavits of examination-in-chief. The Court was of the

view that if the affidavits of examination-in-chief are not to

be filed but the witnesses are to be examined, the date for

appearance of the witnesses itself would be the date for

commencement of the trial, but the position would be

different in a case where the evidence is to be filed by way of

affidavit. The court felt that it would not be appropriate to

shut out the plaintiff from seeking amendment of the plaint

on the ground that there is commencement of trial since the

date for filing of the affidavits of evidence had expired

though the date for appearance of the witness was yet to be

come.

10. In Smt. Basanti Satapathy & Ors. v. Rakesh

Kumar Satapathy 2003 AIHC 1947 (Orissa) the High Court

was of the view that the expression "where the trial has

commenced" occurring in the proviso to Order 6 Rule 17 of

Code of Civil Procedure should be read in a strict sense and

can also have a restricted meaning namely where the taking

of evidence is started. The Court was of the view that

considering the object sought to be achieved by conferment

of power to allow amendment of pleadings, the restriction

imposed by the proviso on that power, should be limited to

cases where the trial as it is generally known viz. the

examination of witnesses has commenced. In Neelakandan

Nair v. Parameswara Kurup 2003(2) KLT 943, the Court

was of the view that in a narrower sense trial would mean

only the stage of actual adducal of evidence - documentary

or oral and in the context of Order 6 Rule 17 CPC, it means

the commencement of actual trial or actual adducal of

evidence.

11. The learned Counsel of defendants has however,

relied upon the decision of Supreme Court in Kailash v.

Nanhku & Ors. (2005) 4 SCC 480 and the decision of this

Court in Mrs. Suneel Sodhi & Ors. v. M.L.Sodhi & Ors AIR

2004 Delhi 99. In Kailash v. Nanhku (supra) the issue

before the Supreme Court was regarding extension of time

for filing Written Statement in an election petition. During

the course of the judgment, the Court inter alia observed as

under:

At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word "trial" in the content of an election petition? In a civil suit the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word "trial".

12. Since, this is not an election petition, this

judgment would not apply. Moreover, Supreme Court in

this case was not examining the meaning of the expression

„trial has commenced‟, used in the proviso to Order 6 Rule

17 of Code of Civil Procedure, in a case, where evidence is to

be led on affidavits. In Mrs. Suneel Sodhi (supra) an

application for amendment of the Written Statement was

filed by the legal representatives of defendant No.3, who

wanted to set up a Will alleged to have been executed by

Shri M.L.Sodhi and Smt. Raj Sodhi. It was noted by the

Court that the dates of trial were fixed from 22 nd to 25th

October, 2002 and therefore it could be safely concluded

that the application filed on 8th October, 2002 would not fall

within the prohibition of amended Order 6 Rule 17 of Code

of Civil Procedure. The application was accordingly allowed.

Therefore, this judgment does not hold a proposition of law

that once the issues are framed and the dates of filing

affidavits by way of evidence are fixed, the trial commences

on such an order being passed by the Court.

13. The learned Counsel for the defendants states that

the trial commenced on 25th February, 2010 when the

matter was listed before the Joint Registrar after framing of

issues and the date for recording evidence was fixed by him.

I, however, do not find myself in agreement with the learned

Counsel for the defendants. I fail to appreciate when the

trial in a suit where the witnesses have to be examined in

person instead of filing affidavits by way of their

examination-in-chief commences on the appearance of the

witness in the Court, for the purpose of giving evidence,

how, in a suit where the examination-in-chief is to be

recorded on affidavits can it be said to commence when

such affidavits being actually filed in the Court. When the

Court fixes dates for recording evidence, these are the dates

when the trial is scheduled to commence, but, actual

commencement of the trial takes place only when either the

witness appears in the Court for giving evidence or the

affidavits of the witnesses are filed by way of their

examination-in-chief. In any case, considering the

observations made by Supreme Court in Baldev Singh

(supra), where the Court noticing that documentary

evidence have not been filed, took the view that the trial had

not commenced within the meaning of proviso to Order 6

Rule 17 of Code of Civil Procedure, the view being suggested

by the learned Counsel for the defendants would not be a

correct view in law and would, unjustifiably, enlarge the

scope of the expression "commencement of trial" to include

what actually is a pre-trial stage or a stage preparatory to

commencement of trial. Therefore, I am of the view that the

trial in a case where evidence is to be recorded on affidavits

does not commence before filing of one or more affidavits by

way of evidence.

14. Since the affidavits by way of evidence are yet to be

filed, I am of the view that. The application is not hit by the

proviso to Order 6 Rule 17 of Code of Civil Procedure.

The application is allowed subject to payment of

Rs.25,000/- as costs.

CS(OS) No. 800/2006

Amended plaint be filed within two weeks. Written

Statement to the amended plaint be filed within four weeks

of getting the copy of the amended plaint. Additional

documents, if any, can be filed within six weeks.

The case be listed before the Joint Registrar for

admission/denial of the additional documents, if any, on

24th October, 2011 and before the Court for framing of

additional issues, if any, on 6th March, 2012.

(V.K. JAIN) JUDGE SEPTEMBER 13, 2011 vn