Sikkim High Court
Chandu Sherpa And Ors vs Raju Rai And Anr on 16 August, 2024
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
1
W.P. (C) No.35 of 2023
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extraordinary Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 35 of 2023
1. Shri Chandu Sherpa,
S/o Late Lakey Sherpa,
Aged about 48 years,
R/o 3rd Mile Bojoghari.
Gangtok District, Sikkim,
Pin No. 737 101.
2. Ms. Lhamu Sherpa,
Daughter of Late Lakey Sherpa,
Aged about 29 years,
R/o 3rd Mile Bojoghari,
Gangtok District, Sikkim
Pin. 737 101.
3. Ms. Dawa Lhamu Sherpa,
Daughter of Lt. Lakey Sherpa,
Aged about 25 years,
R/o 3rd Mile Bojoghari,
Gangtok District, Sikkim
Pin. 737 101.
4. Smt. Phul Maya Sherpa,
Wife of Late Lakey Sherpa,
Aged about 44 years,
R/o 3rd Mile Bojoghari,
Gangtok District, Sikkim
Pin. 737 101.
..... Petitioners
Versus
1. Raju Rai,
S/o of Shri Dhan Bahadur Rai,
R/o 3rd Mile Bojoghari,
District, Sikkim
P.O. Gangtok,
Pin. 737 101.
2
W.P. (C) No.35 of 2023
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
2. District Collector-cum-Registrar,
Office of the District Collectorate,
District Administrative Centre,
Sichey, Gangtok, Sikkim,
Pin No. 737 101.
..... Respondents
Petition under Article 227 of the Constitution of
India.
Impugned order dated 29.08.2023, passed by the learned Civil Judge,
Gangtok in Title Suit Case No. 11 of 2017, titled as Chandu Sherpa
versus Raju Rai & Anr. wherein the Trial Court had allowed the
application of the respondent no.1 for amendment of written statement
under Order VI, Rule 17 read with section 151 of the Code of Civil
Procedure, 1908.
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Appearance:
Mr. Dewen Sharma Luitel and Mr. Bhaichung Bhutia,
Advocates for the Petitioners.
Mr. N. Rai, Senior Advocate with Mr. Yozan Rai and
Mr. Pradeep Tamang, Advocates for the Respondent
No.1.
Mr. S.K. Chettri, Government Advocate for the
Respondent No.2.
Date of Hearing : 07.08.2024
Date of Judgment : 16.08.2024
JUDGMENT
Bhaskar Raj Pradhan, J.
1. This petition is filed under Article 227 of the
Constitution of India challenging the impugned Order dated
29.08.2023 passed by the learned Civil Judge, Gangtok
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
Sikkim disposing of the three applications filed by the
respondent no.1 (defendant no.1).
2. It is settled law that the supervisory jurisdiction
under Article 227 of the Constitution of India is exercised
for keeping the district judiciary within the bounds of their
jurisdiction when the Court has assumed jurisdiction
which it did not have or has failed to exercise a jurisdiction
which it had or the jurisdiction though available is being
exercised by the Court in a manner not permitted by law
and failure of justice or grave injustice has occasioned
thereby.
3. Heard the learned counsel for the parties. The
learned Government Advocate representing the respondent
no.2 submits that as the issue pertains to the objection of
the plaintiffs to the amendments in the written statements
filed by the defendant no.1 he has nothing to contest.
4. The learned Counsel for the plaintiff is aggrieved
by the impugned Order to the extent that it allowed certain
amendments in the written statement although, according
to him, the defendant no.1 had failed to show "due
diligence" for not having raised the matter before the
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
commencement of the trial. The establishment of the
exercise of due diligence before the commencement of trial,
it is argued, is an imperative requirement before
amendment is allowed in cases where amendment is
sought after the commencement of trial. Further it was
contended that although the application for amendment
pleaded that certain typographical errors had crept in for
which the amendment was sought, the amendment
proposed was much beyond typographical errors. The
defendant no.1 sought to introduce certain other facts
which were not pleaded in the written statement filed
earlier. The learned Counsel submitted that the defendant
no.1 was seeking to fill in lacunae in his case which was
not permissible.
The question raised
5. The questions therefore, raised by the learned
counsel for the plaintiff is whether the defendant No.1 had
exercised due diligence?; whether the defendant no.1 was
seeking to introduce new facts to fill in the lacunae in his
case?; and whether the present petition is a fit case to
exercise the discretionary power under article 227 of the
Constitution?
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
The provision of law
6. Central to the question raised by the learned
Counsel for the petitioner is the provision of Order VI Rule
17 of the Code of Civil Procedure, 1908 (CPC) which is
extracted herein below:-
"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. The learned Counsel for the parties cited several
judgments seeking to explain to this Court the scope and
ambit of the said provisions.
The precedents
8. In J. Samuel and ors. vs. Gattu Mahesh & Ors.1 the
Supreme Court considered the provision in a case where
application for amendment of the plaint was filed after the
arguments were concluded and matter posted for
judgment. In that background the Supreme Court
(2012) 2 SCC 300
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
explained what was meant by the words "due diligence" and
concluded in the following words:
"19. Due diligence is the idea that reasonable investigation
is necessary before certain kinds of relief are requested.
Duly diligent efforts are a requirement for a party seeking to
use the adjudicatory mechanism to attain an anticipated
relief. An advocate representing someone must engage in
due diligence to determine that the representations made
are factually accurate and sufficient. The term "due
diligence" is specifically used in the Code so as to provide a
test for determining whether to exercise the discretion in
situations of requested amendment after the commencement
of trial.
20. A party requesting a relief stemming out of a claim is
required to exercise due diligence and it is a requirement
which cannot be dispensed with. The term "due diligence"
determines the scope of a party's constructive knowledge,
claim and is very critical to the outcome of the suit.
21. In the given facts, there is a clear lack of "due diligence"
and the mistake committed certainly does not come within
the preview of a typographical error. The term
"typographical error" is defined as a mistake made in the
printed/typed material during a printing/typing process.
The term includes errors due to mechanical failure or slips
of the hand or finger, but usually excludes errors of
ignorance. Therefore, the act of neglecting to perform an
action which one has an obligation to do cannot be called as
a typographical error. As a consequence the plea of
typographical error cannot be entertained in this regard
since the situation is of lack of due diligence wherein such
amendment is impliedly barred under the Code".
9. In Chander Kanta Bansal vs. Rajinder Singh Anand2
while examining the provision of Order VI Rule 17 of the
CPC to consider and application for amendment the
Supreme Court explained "due diligence" in this manner:
"16. The words "due diligence" have not been defined in
the Code. According to Oxford Dictionary (Edn. 2006), the
(2008) 5 SCC 117
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
word "diligence" means careful and persistent application
or effort. "Diligent" means careful and steady in application
to one's work and duties, showing care and effort. As
per Black's Law Dictionary (18th Edn.), "diligence" means a
continual effort to accomplish something, care; caution; the
attention and care required from a person in a given
situation. "Due diligence" means the diligence reasonably
expected from, and ordinarily exercised by a person who
seeks to satisfy a legal requirement or to discharge an
obligation. According to Words and Phrases by Drain-
Dyspnea (Permanent Edn. 13-A) "due diligence", in law,
means doing everything reasonable, not everything
possible. "Due diligence" means reasonable diligence; it
means such diligence as a prudent man would exercise in
the conduct of his own affairs".
10. In Usha Balashaheb Swami and ors. vs. Kiran Appaso
Swami & Ors.3 the Supreme Court considered an application
for amendment of written statement and the provision of
Order VI Rule 17 of the CPC and held:
"19. It is equally well-settled principle that a prayer for
amendment of the plaint and a prayer for amendment of the
written statement stand on different footings. The general
principle that amendment of pleadings cannot be allowed so
as to alter materially or substitute cause of action or the
nature of claim applies to amendments to plaint. It has no
counterpart in the principles relating to amendment of the
written statement. Therefore, addition of a new ground of
defence or substituting or altering a defence or taking
inconsistent pleas in the written statement would not be
objectionable while adding, altering or substituting a new
cause of action in the plaint may be objectionable.
20. Such being the settled law, we must hold that in the
case of amendment of a written statement, the courts are
more liberal in allowing an amendment than that of a plaint
as the question of prejudice would be far less in the former
than in the latter case (see B.K. Narayana
Pillai v. Parameswaran Pillai [(2000) 1 SCC 712]
and Baldev Singh v. Manohar Singh [(2006) 6 SCC 498] ).
Even the decision relied on by the plaintiff in Modi Spg.
[(1976) 4 SCC 320] clearly recognises that inconsistent
pleas can be taken in the pleadings. In this context, we may
also refer to the decision of this Court in Basavan Jaggu
Dhobi v. Sukhnandan Ramdas Chaudhary [1995 Supp (3)
(2007) 5 SCC 602
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
SCC 179] . In that case, the defendant had initially taken
up the stand that he was a joint tenant along with others.
Subsequently, he submitted that he was a licensee for
monetary consideration who was deemed to be a tenant as
per the provisions of Section 15-A of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947. This
Court held that the defendant could have validly taken such
an inconsistent defence. While allowing the amendment of
the written statement, this Court observed in Basavan
Jaggu Dhobi case [1995 Supp (3) SCC 179] as follows: (SCC
p. 180, para 3)
"3. As regards the first contention, we are
afraid that the courts below have gone wrong in
holding that it is not open to the defendant to amend
his written statement under Order 6 Rule 17 CPC by
taking a contrary stand than what was stated
originally in the written statement. This is opposed
to the settled law. It is open to a defendant to take
even contrary stands or contradictory stands,
thereby the cause of action is not in any manner
affected. That will apply only to a case of the plaint
being amended so as to introduce a new cause of
action."
21. As we have already noted herein earlier that in
allowing the amendment of the written statement a liberal
approach is a general view when admittedly in the event of
allowing the amendment the other party can be
compensated in money. Technicality of law should not be
permitted to hamper the courts in the administration of
justice between the parties. In L.J. Leach & Co.
Ltd. v. Jardine Skinner & Co. [AIR 1957 SC 357] this Court
observed
"that the courts are more generous in allowing
amendment of the written statement as the question
of prejudice is less likely to operate in that event".
In that case this Court also held
"that the defendant has right to take alternative
plea in defence which, however, is subject to an
exception that by the proposed amendment the
other side should not be subjected to serious
injustice".
22. Keeping these principles in mind, namely, that in a case
of amendment of a written statement the courts would be
more liberal in allowing than that of a plaint as the question
of prejudice would be far less in the former than in the latter
and addition of a new ground of defence or substituting or
altering a defence or taking inconsistent pleas in the written
statement can also be allowed, we may now proceed to
consider whether the High Court was justified in rejecting
the application for amendment of the written statement".
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
11. In Revajeetu Builders and Developers vs.
Narayanaswamy & Sons & Ors.4 the Supreme Court
pronounced on the exercise of discretionary power by court
and the governing principles in exercise of powers under
Order VI Rule 17 of the CPC after examining several
judgments. The Supreme Court held:-
"36. In the leading English case of Cropper v. Smith [(1884)
26 Ch D 700 (CA)] , the object underlying amendment of
pleadings has been laid down by Browen, L.J. in the
following words: (Ch D pp. 710-11)
"... it is a well-established principle that the object of courts
is to decide the rights of the parties, and not to punish them
for mistakes they make in the conduct of their cases by
deciding otherwise than in accordance with their rights. ... I
know of no kind of error or mistake which, if not fraudulent
or intended to overreach, the court ought not to correct, if it
can be done without injustice to the other party. Courts do
not exist for the sake of discipline, but for the sake of
deciding matters in controversy, and I do not regard such
amendment as a matter of favour or of grace. ... It seems to
me that as soon as it appears that the way in which a party
has framed his case will not lead to a decision of the real
matter in controversy, it is as much a matter of right on his
part to have it corrected, if it can be done without injustice,
as anything else in the case is a matter of right."
....."
xxxxxxx
"63. On critically analysing both the English and Indian
cases, some basic principles emerge which ought to be
taken into consideration while allowing or rejecting the
application for amendment:
(1) whether the amendment sought is imperative for
proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or
mala fide;
(3) the amendment should not cause such prejudice to the
other side which cannot be compensated adequately in
terms of money;
(4) refusing amendment would in fact lead to injustice or
lead to multiple litigation;
(2009) 10 SCC 84
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the
case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the amended claims would
be barred by limitation on the date of application.
These are some of the important factors which may be
kept in mind while dealing with application filed under
Order 6 Rule 17. These are only illustrative and not
exhaustive".
The brief facts
12. From the narration of the facts and examination of
the records it is revealed that the plaint was filed on
27.06.2017 by the plaintiffs. Pursuant thereto a written
statement was filed on 15.06.2018 by the defendant no.1.
Issues were framed on 03.08.2018. Thereafter, the
plaintiffs sought amendment of the plaint which was
allowed on 21.02.2019. The amended plaint was filed on
08.03.2019. In response thereof, on 05.04.2019, the
amended written statement was also filed by the defendant
no.1. On consideration of the amended plaint and the
amended written statement the learned Trial Court
concluded that the earlier issues were framed improperly
and thus framed issues on 15.10.2019 on its own motion.
Thereafter, the plaintiffs filed their evidence on affidavit of
their witnesses and admittedly they were also cross
examined by the defendants. On 15.06.2022 the
plaintiffs closed their evidence. It is at this stage that on
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
09.08.2022 that the defendant no.1 filed his evidence on
affidavit. On 07.02.2023 the plaintiffs filed written
objection to the evidence on affidavit filed by the defendant
no.1. On 07.02.2023 the defendant no.1 also filed an
application for amendment of his evidence on affidavit to
correct typographical errors. On 18.02.2023 the plaintiffs
filed their reply to the application for amendment of the
evidence on affidavit of the defendant no.1 raising various
objections. The application for amendment of evidence on
affidavit filed by the defendant no.1 was heard by the
learned Trial Court. However, a day prior to the
pronouncement of orders the defendant no.1 on
13.03.2023 filed two applications.
13. The first application was the application under
Order VI Rule 17 of the CPC seeking amendment to the
written statement filed by the defendant no.1. The relevant
pleading of this application is substantially contained in
paragraph 3 thereof and is quoted in verbatim:
" 3. That the present suit being Title Suit No.11 of 2017
is closely connected to the other four title suits viz. Title Suit
No.8 of 2017, Title Suit No. 9 of 2017, Tile Suit No. 10 of
2017, Title Suit No. 12 of 2017. In all these title suits
pending before this learned Court including the present suit
there are the same plaintiffs and the defendants with a
variation of the defendant no.1 in the present suit. While in
the other four suits the defendant no.1 is Smt. Sunita Rai,
the defendant no.1 in the present suit is Raju Rai who is the
son of the said Sunita Rai. It is pertinent to mention here
that all these title suits relate to the landed properties sold
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
by late Lakey Sherpa which is challenged by the plaintiffs.
The defendant no.1 in all other connected title suits Smt.
Sunita Rai is the biological mother of Shri Raju Rai, the
defendant no.1 in the present suit. The material facts and
circumstances of all these suits are all similar and all these
suits are being considered simultaneously by these learned
Court. Reliance by the parties on the documents on record
in one of the connected suits mentioned above is also
placed for other connected suits. In such circumstances, the
written statement of the defendant no.1 (Smt. Sunita Rai) in
other connected title suits were by and large adopted for the
present title suit. As such, this has resulted in the error with
respect to the reference of the gender of the defendant no.1
as „she‟, „her‟ etc. also few activities such as purchase of
the suit properties in other title suits made by Smt. Sunita
Rai has been attributed to the defendant no.1 in the present
suit."
14. The second application dated 14.03.2023 was for
withdrawal of the petition and evidence on affidavit dated
09.08.2022. The reason given by the defendant no.1 for
moving the application was that he had already moved an
application for amendment of the written statement and as
such the application dated 07.02.2023 for rectifying the
errors in the evidence on affidavit had become redundant.
15. The plaintiffs filed response to the second
application as well on 23.03.2023 pursuant to which the
learned Trial Court heard the learned Counsel for the
parties and rendered its impugned Order on 29.08.2023.
The impugned order decided all the three applications filed
by the defendant no.1. The plaintiffs are however, only
aggrieved by the impugned order to the extent that it
allowed the amendments sought for by the defendant no.1.
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
The consideration
16. The learned Trial Court examined each of the
amendments sought, allowed some of the amendments and
rejected the others by a reasoned order. While doing so the
learned Trial Court was guided by the judgment of the
Supreme Court in Life Insurance Corporation of India vs.
Sanjeev Builders Private Limited & Anr.5 in which it was held:
"71.2. All amendments are to be allowed which are
necessary for determining the real question in controversy
provided it does not cause injustice or prejudice to the other
side. This is mandatory, as is apparent from the use of the
word "shall", in the latter part of Order 6 Rule 17CPC.
71.3. The prayer for amendment is to be allowed:
71.3.1. If the amendment is required for effective and
proper adjudication of the controversy between the parties.
71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the
other side,
(b) by the amendment, the parties seeking
amendment do not seek to withdraw any clear
admission made by the party which confers a right
on the other side, and
(c) the amendment does not raise a time-barred claim,
resulting in divesting of the other side of a valuable
accrued right (in certain situations).
71.4. A prayer for amendment is generally required to be
allowed unless:
71.4.1. By the amendment, a time-barred claim is sought to
be introduced, in which case the fact that the claim would
be time-barred becomes a relevant factor for consideration.
71.4.2. The amendment changes the nature of the suit.
71.4.3. The prayer for amendment is mala fide, or
(2022) 16 SCC 1
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
71.4.4. By the amendment, the other side loses a valid
defence.
71.5. In dealing with a prayer for amendment of pleadings,
the court should avoid a hypertechnical approach, and is
ordinarily required to be liberal especially where the
opposite party can be compensated by costs.
71.6. Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment
should be allowed.
71.7. Where the amendment merely sought to introduce an
additional or a new approach without introducing a time-
barred cause of action, the amendment is liable to be
allowed even after expiry of limitation.
71.8. Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the
plaint.
71.9. Delay in applying for amendment alone is not a
ground to disallow the prayer. Where the aspect of delay is
arguable, the prayer for amendment could be allowed and
the issue of limitation framed separately for decision.
71.10. Where the amendment changes the nature of the
suit or the cause of action, so as to set up an entirely new
case, foreign to the case set up in the plaint, the amendment
must be disallowed. Where, however, the amendment
sought is only with respect to the relief in the plaint, and is
predicated on facts which are already pleaded in the plaint,
ordinarily the amendment is required to be allowed.
71.11. Where the amendment is sought before
commencement of trial, the court is required to be liberal in
its approach. The court is required to bear in mind the fact
that the opposite party would have a chance to meet the
case set up in amendment. As such, where the amendment
does not result in irreparable prejudice to the opposite
party, or divest the opposite party of an advantage which it
had secured as a result of an admission by the party
seeking amendment, the amendment is required to be
allowed. Equally, where the amendment is necessary for
the court to effectively adjudicate on the main issues in
controversy between the parties, the amendment should be
allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi [Vijay
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del
1897] .)"
17. This Court has examined the detailed reasoning of
the learned Trial Court for allowing the amendments and
rejecting the others and finds no fault with it. Wherever
and whenever the defendant no.1 in his application had
proposed an amendment which was not permissible the
learned Trial Court has rejected the amendment sought.
18. Having allowed the application for amendment of
the written statement under Order VI Rule 17 of the CPC
the learned Trial Court had to deal with the remaining two
applications. The first was for leave to correct typographical
errors in the evidence on affidavit of defendant no.1 and the
second was for withdrawal of that application and also to
withdraw the evidence on affidavit of the defendant no.1.
The learned Trial Court sought to resolve this issue by
disallowing the application for withdrawal of the evidence
on affidavit and instead allowing the defendant no.1 to file
additional affidavit explaining the mistake that has
occurred in his evidence on affidavit.
19. An application for amendment under Order VI Rule
17 of the CPC can be allowed "at any stage of the
proceedings." The language used is not circumscribed or
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
limited. If it is necessary for the purpose of determining the
real questions in controversy it can be allowed at any stage
of the proceedings. Therefore, the learned Trial Court
allowing the application for amendment after the plaintiffs
had closed his evidence was permissible if on the facts of
the case it was "necessary for the purpose of determining
the real questions in controversy between the parties." The
learned Trial Court on examination of the pleadings has
concluded that the amendment was necessary for the
purpose of determining the real questions in controversy
between the parties. The learned Trial Court was of the
view that the proposed amendment could be allowed
although the application was brought at a belated stage
since if it was not done it would cause prejudice to the
defendant no.1. Further it would not alter or substitute a
new cause of action and cause prejudice to the plaintiffs.
For bringing the application at a belated stage the learned
Trial Court imposed a cost of Rs.5000/- to be paid to the
plaintiffs by the defendant no.1 for the inconvenience
caused. This Court finds no fault in that conclusion as
well.
20. From a reading of the averments made in the
application for amendment of the written statement what is
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
apparent is that although care was taken to draft the
written statement properly because of multiple suits filed
by the plaintiffs while filing multiple written statements on
almost similar facts and circumstances certain
typographical and other errors crept in. It is also apparent
that these errors crept in at the time of drafting of the
written statements by the counsel for the defendant no.1
and therefore, it was more error committed by the counsel
then the defendant no.1. The application is a little shy of
admitting that in fact the mistake was of the counsel for
the defendant No.1. However, a holistic reading of the
application makes it apparent. The errors were rather
mistakes committed inadvertently by the counsel for the
defendant no.1 than a fraudulently act of the defendant
no.1 intended to overreach. It is also apparent that the
amendments sought is imperative for proper and effective
adjudication of the case; it is bona fide; the amendments
would not cause prejudice to the plaintiff which cannot be
compensated adequately in terms of money; refusing
amendment would in fact lead to injustice or lead to
multiple litigation; and the proposed amendment
constitutionally or fundamentally did not changed the
nature and character of the case. Quite clearly the
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
defendant no.1 in spite of due diligence could not have seen
through the drafting errors committed by the counsel.
21. However, having allowed the amendment to the
written statement the learned Trial Court could not have
left the defendant no.1 to navigate between the earlier
evidence on affidavit based on the un-amended written
statement. Additionally the learned Trial Court was also
required to decide whether it should allow the application
of the defendant no.1 to withdraw the evidence on affidavit
as well. To resolve these issues the learned Trial Court
sought guidance from a well reasoned judgment of the High
Court of Bombay in the case of Banganga Cooperative
Housing Society Ltd. vs. Vasanti Bajanan Nerukar6. The
questions before the Bombay High Court were:
"Is it permissible for a Court to order the deletion or
redaction of any portion of any such affidavit if that part is
found to be inadmissible as evidence? If so, at what stage
of the proceedings should this be done? Can a party
„withdraw‟ an evidence affidavit without consequence? Can
an evidence affidavit, once filed, ever be „returned‟? What
are the consequences if an affidavit is filed and then it is
found, perhaps a long time later, that the deponent of that
evidence affidavit is either unavailable or cannot be
tendered for cross examination? Where documents are
admitted in evidence on the basis of an evidence affidavit
and the witness is then not made available or tendered for
cross examination, how are those documents to be
treated?"
22. The Bombay High Court held that:
(2015) SCC OnLine Bom 3411= (2015) 4 AIR Bom. R 639
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
"11. ...... Once an evidence affidavit is filed, and since
there is no absolute requirement of it being required to be
reaffirmed by the deponent from the witness box before that
affidavit forms part of the evidentiary record, it follows that
it is examination-in-chief as soon as it is affirmed (or, at any
rate, affirmed and filed) and it is not thereafter, possible to
"withdraw" and evidence affidavit. Once an evidence
affidavit is filed, the examination-in-chief of the deponent
has, to all intents and purposes, begun. It may be
permissible for the deponent to file a further affidavit, since
order XVIII Rule 4 does not limit itself to a single affidavit,
and although there is some authority for the proposition that
a witness may not continuously file fresh affidavits to keep
improving his case, the view of our court is somewhat
different, viz., that there is no impediment to the taking of
additional examination in chief or the filing of a further or
additional or supplemental affidavit in lieu of examination
in chief. This was the view taken by a learned Single Judge
of this Court (Khanwilkar, J., as he then was) in Rajesh
Verma vs. Aminex Holdings & Investments. Not only am I in
most respectful agreement with that decision, but it binds
me; and it is also the view that I took in a recent order.
12. What is not in doubt is that there can never be a
withdrawal of an evidence affidavit just as their can never
be a withdrawal of an examination in chief conducted
directly in court. ..............."
The conclusion
23. In view of what has been discussed above both in
fact and in law this Court is of the considered view that the
impugned Order passed by the learned Trial Court is a well
reasoned one. It is clear that that in spite of due diligence,
the defendant no.1 could not have raised the matter before
the commencement of trial. The learned Trial Court has
meticulously examined each of the proposed amendment
and rejected all such amendments which were not
permissible. The learned Trial Court allowed only those
amendments which were attributable to the reasons
Chandu Sherpa & Ors. vs. Raju Rai & Anr.
pleaded in the application for amendment and which would
not change the nature and character of the defense taken
earlier. These amendments would not cause any injustice
to the plaintiffs. The learned Trial Court has not assumed
jurisdiction which it did not have or has failed to exercise a
jurisdiction which it had or the jurisdiction though
available was exercised by it in a manner not permitted by
law and failure of justice or grave injustice has occasioned
thereby.
24. Consequently, the petition under Article 227 of the
Constitution of India fails and is thereby rejected along
with the pending application.
( Bhaskar Raj Pradhan )
Judge
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