IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. OSA No.17/2001 Reserved on.20.6.2008 Decided on.22.7.2008 Sunil Madan and others. …Appellants. Versus Rajeev Madan and others. …Respondents. Coram The Hon’ble Mr. Justice Jagdish Bhalla, C.J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. K.D. Sood, Advocate. For the respondent s: Mr. Bimal Gupta, Advocate for respondent No.1. Ms. Anita Dogra vice Mr. Ramakant Sharma, Advocate for respondents No.2 and 7. Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, advocate for respondent No.6. Rajiv Sharma, J. The present Original Side Appeal has been preferred under clause 10 of Delhi High Court Original Side Rules read with clause 10 of Letters Patent against the judgment dated 9.5.2001 of the learned Single Judge rendered in OMP No. 69/2001 whereby the learned Single partly allowed the application for amendment of the 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 written statement of the appellants-defendants (hereinafter referred to as ‘the appellants’ for convenience sake) but disallowed raising of remaining pleas in the proposed amendment. The brief facts necessary for the adjudication of this Original Side Appeal are that the plaintiffs-respondents (hereinafter referred to as ‘the plaintiffs’ for convenience sake) have filed suit for partition/recovery of damages etc. The suit was admitted on 13.8.1986. The learned Single Judge framed the following issues on 14.6.1989: 1. Whether Dewan Jyoti Nath was a legally authorized agent of the landlords, as alleged? OPD 1 to 3 2. Whether Dr. Rajinder Nath Madan was validly inducted a tenant with respect to the Ritz Cinema Premises? OPD 1 to 3. 3. Whether the acts of Dewan Jyoti Nath in leasing out the property were ratified by the guardians and/or owners, as alleged, if so, its effect? OPD 1 to 3. 4. Whether the plaintiff is estopped from filing the suit on account of his and/his guardians’ acts, deeds, conduct and acquiescence? OPD 1 to 3. 5. Whether Dr. Rajinder Nath Madan, Shri Ravinder Madan and Shri Narinder Madan spent amounts for the improvement of the property on the basis of agreement dated 16.3.1971, if so, its effect? OPD 1 to 3. 6. Whether the possession of Dr. Rajinder Nath Madan was on the basis of an order passed by the high Court on an application for appointment of receiver, if so, its effect? OPP 7. Whether agreement dated 16.3.1971 was illegal and void and is not binding upon the plaintiff for the reasons mentioned in para 12-A of the plaint? OPP 3 8. Whether defendants 8, 1 and 9 did not act in the best interests of the minors, if so, its effect? OPP 9. Whether the property is liable to be partitioned, if so, in what shares and amongst whom? OPP 10. If issue No.9 is answered in affirmative whether on partition parties are entitled to actual delivery of possession? OPP 11. Whether the suit has not been properly valued for purposes of Court fees and jurisdiction, if so, what is the correct valuation for purposes of court fees and jurisdiction? OP Parties 12. Whether the suit is within period of limitation? OPP 13. Whether the occupation of defendant No.1 in the Ritz Cinema portion out of the suit property is unauthorized. If so, whether defendant No.1 is liable to compensate the plaintiff and the other 2 owners and to what extent? OPP. 14. Relief. The learned Single Judge passed the following order on 3.12.1990: “It is stated by the learned counsel for the plaintiff that no evidence in rebuttal is sought to be produced and he closed the case of the plaintiff finally. List for hearing after winter vacations in the month of March, 2000.” The appellants filed OMP bearing No. 69/2001 seeking amendment of the written statement. The plaintiff filed reply to the OMP No. 69/2001 and primarily contended that the application under order 6 Rule 17 of the Code of Civil Procedure has been preferred to delay the hearing of the case and the same was not 4 necessitated due to the pleadings and the evidence which has already come on record. The appellants filed the rejoinder to the reply filed by the plaintiffs. Defendant No.5 also filed reply to OMP No. 69/2001. The learned Single Judge disposed of the application on 9.5.2001. The learned Single Judge while disposing of the OMP framed the following issue: “Whether the plaintiffs are estopped under the principles of res-judicata in filing the present suit as alleged? OPD-1 to 3. The learned Single Judge held that as far as the plea with regard to earlier partition was concerned such a question was already covered by issue No.9 and the relevant evidence has already been led. As far as plea of tenancy was concerned according to the learned Single Judge, the same was also covered under issue No.2. The operative portion of the judgment of the learned Single Judge reads thus: “Insofar as the plea with regard to an earlier partition is concerned, such a question is already covered by issue No.9, which has already been framed in the present case and in this regard relevant evidence has already been led. Admittedly, certain judgments have come to be pronounced in the litigation mentioned in the application during the pendency of the present suit. In view of the same, as a result of the subsequent developments, the defendants/applicants can be permitted to take up the plea with regard to res-judicata. Therefore, on the facts in the circumstances of the case, the defendants-applicants are permitted 5 to amend their written statement to the extent of taking up the plea of res-judicata only. The rest of the amendment sought for being not material for the just and proper determination of the present case is rejected. The amended written statement already filed by the defendants shall be read only to the extent the amendment with regard to the plea of res- judicata having been permitted to be raised. The rest of the portion of the proposed amendment may be scored off by the learned counsel for the defendants in the amended written statement already filed. The application stand disposed of. On the pleadings of the amended pleadings, the following additional issue is framed:- 13-A. “Whether the plaintiffs are estopped under the principles of res-judicata in filing the present suit as alleged? OPD-1 to 3. A contention has been raised on behalf of defendants No.5 that though a specific plea has been raised on behalf of defendant No.5 that the tenancy, if any, in favour of defendants No.1 to 3 has been revoked by him, no issue has been framed on such plea though evidence has been led. Suffice to say that the plea with regard to the revocation of the tenancy as raised by defendant No.5, will be considered while deciding issue No.2 already framed. The parties have already led evidence on the issue. It is stated by the learned counsel for the defendants No.1 to 3 that he is only to file the certified copy of the pleadings of the civil suits in which the concerned judgments have been delivered, for which he prays for time. Allowed. Let 6 the certified copies of the pleadings be filed within three weeks. Rejoinder, if any, by the plaintiff to the amended written statement be also filed within the above said stipulated period.” Mr. K.D. Sood, Advocate had strenuously argued that the learned Single Judge has erred in law by not allowing the application preferred under order 6 Rule 17 of the Code of Civil Procedure in its entirety by permitting the appellants to file the amended written statement. He also contended that the Court has to be liberal while allowing amendment in the written statement by the parties. Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate, Mr. Bimal Gupta, Advocate, Mr. Vinay Kuthiala, Advocate and Ms. Anita Dogra, vice Mr. Ramakant Sharma, Advocate appearing on behalf of the contesting respondents had opposed the appeal. They have submitted in unison that the application under order 6 rule 17 of the Code of Civil Procedure has been filed by the appellants to delay the hearing of the civil suit and the pleas/issues raised in the application are already covered by the issues framed by this Court on 14.6.1989. We have carefully considered the submissions made by the respective Advocates appearing for the respective parties. We have gone carefully through the pleadings, documents and various orders passed by the learned Single Judge. The trial had commenced when the issues were framed by this Court 14th June, 1989. The parties had led their evidence and the learned Single Judge has directed the matter to be listed on 4.4.2000 for hearing. It was only during the course of hearing that 7 an application under order 6 rule 17 of the Code of Civil Procedure has been preferred by the appellants by way of OMP No. 69/2001. The appellants have raised the plea with regard to earlier partition. This Court had already framed following issue No. 9 on 14.6.1989 pertaining to partition: 9. Whether the property is liable to be partitioned, if so, in what shares and amongst whom? OPP The parties as noticed by the learned Single Judge had already led their evidence on this issue. The learned Single Judge has come to a just conclusion that since the issue with regard to the earlier partition has already been framed there was no necessity for allowing further amendment in the written statement. The second contention of Mr. K.D. Sood, Advocate also merits rejection by this Court. As far as question of tenancy is involved, this Court has already framed following issue No. 2 on 14.6.1989 which reads thus: 2. Whether Dr. Rajinder Nath Madan was validly inducted a tenant with respect to the Ritz Cinema Premises? OPD 1 to 3. The learned Single Judge has rightly permitted the framing of issue No.13-A as far as the plea of res-judicata is concerned and the applicants were also permitted to place on record the copies of the concerned judgment within three weeks. It is held that the pleas raised in this application seeking amendment to written statement were already covered by the earlier pleadings including the written statement/replication filed by the appellants and the learned Single 8 Judge had already framed the issues arising from the same. The Court agrees with the submission made by the learned Advocates on behalf of the contesting parties that the application for amendment was filed only to delay the proceedings after the trial had already commenced. It will be at apt at this stage to take note of the amendment carried in order 6 rule 17 of the Code of Civil Procedure (Amendment) Act, 2002, which reads thus: “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.” The wholesome principle for carrying out amendment in order 6 rule 17 of the Code of Civil Procedure is to avoid delay in proceedings pending before the Courts. This provision has been taken note of by the Court only for the purpose to highlight that the Legislature in its wisdom was also aware of the tendency of the parties to delay the proceedings even after the trial had commenced. We hasten to add that we have only taken note of this amendment in order 6 rule 17 of the Code of Civil Procedure carried out in the year 9 2002 to share our anxiety that the proceedings should not be delayed. However, Original Side Appeal has been heard and decided on the basis of un-amended provision. In view of the discussion made hereinabove, there is no merit in this Original Side Appeal and the same is dismissed. The learned Single Judge will commence the proceedings of the civil suit bearing No. 45/1986. We hope and trust that an earnest effort would be made by learned Single Judge to conclude the matter by resorting to day-to-day hearing if required taking into consideration that the civil suit was filed in the year 1986. There shall be no order as to costs. (Jagdish Bhalla), C.J. ( Rajiv Sharma), J. July 22, 2008 *Awasthi*