CRP 347/2008 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) The plaintiff in Title Suit No. 972 of 2006 on the file of the learned Munsiff N o.3 (Kamrup) at Guwahati has assailed the order dated 31.07.2008 passed in Misc. (J) Case No. 312 of 2007 arising out of Title Suit No. 972 of 2006 whereby and whereunder the learned trial Court dismissed the Misc. Case seeking amendment of the plaint. 2. A brief facts are necessary to understand the case set forth in the plea dings for amendment of the plaint, objection thereto and the findings arrived at by the learned trial Court. The petitioner herein as plaintiff has brought a suit being Title Suit N o. 972 of 2006 against the defendants in the court of the learned Munsiff No. 3 (Kamrup) at Guwahati seeking the following reliefs: i) Declaration that the plaintiff is a bonafide tenant of the defendant s and the defendants cannot evict the plaintiff forcibly and illegally from his tenanted premises, described fully in the schedule below without following due p rocedure established by law; ii) For permanent injunction, restraining the defendants, their servants , agents, workmen, associates, musclemen from causing any kind of threat, nuisan ce, annoyance, intimidation, in any manner and from disturbing the peaceful poss ession of the plaintiff, in respect of his tenanted premises described in the sc hedule below; iii) For realization of Rs, 1,50,000/- (Rupees one lakh fifty thousand) only being the value of the goods taken away illegally by the defendants from th e below schedule tenanted premises, if the defendants fail to return the same, d uring the pendency of this suit and/or if the police fails to recover the same f rom the defendants, during pendency of this suit and the plaintiff craves the le ave of this Hon’ble Court to pay the requisite ad valorem court fee for the same at the time of completion of trial of this suit before this Hon’ble Court; iv) The costs of the suit. 3. Along with the plaint, an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ’the Code’) was filed be ing numbered as Misc. (J) Case No. 505 of 2006 which came up for consideration o n 08.11.2006 before the learned trial Court wherein after going through the aver ments made in the plaint, injunction petition alongwith the documents annexed th ereto and upon hearing the counsel representing the petitioner/plaintiff directe d the opposite parties/defendants to maintain status quo as on 08.11.2006 in res pect of possession of the scheduled premises mentioned in the Misc. Case, asking the opposite parties to show cause on 27.11.2006 as to why an injunction as pra yed for should not be granted by the court making it clear that failing to show cause the matter will be heard and decided in absence of the opposite parties. 4. On receipt of the summons the defendants have entered appearance by fili ng written statement denying the averments made in the plaint, except admitting the relationship of landlord and tenant but denied to have paid the rent since J uly 2006 and that ultimately the plaintiff left the suit premises in the month o f November 2006 with a promise to clear the outstanding rent in due time lea6ng one refrigerator, one generator, eight numbers of side fans, one xerox machine i n the suit premises to which the defendants are willing to return to the plainti ff thereby prayed for dismissal of the suit. 5. The status quo order in respect of the tenanted premises was directed to maintain till 27.11.2006. However, thereafter, the plaintiff failed to pray for extension of the status quo and thus the status quo order lapses its force sinc e there was no extension order and consequently thereupon another Misc. (J) Case No. 613 of 2006 in Title Suit No. 972 of 2006 was filed under Section 151 of th e Code for effective implementation of the injunction order dated 08.11.2006 pas sed in Misc. (J) Case No. 505 of 2006 but no order was passed on the Misc. (J) C ase No. 613 of 2006 since the plaintiff was forcibly evicted from the suit premi ses on 17.12.2006 by the defendants though the plaintiff filed complaint before the learned Chief Judicial Magistrate, Guwahati against the defendants/accused s eeking a direction to the Officer-in-Charge to take necessary steps to register the case and investigate against the accused and punish them in accordance with law but it did not yield any result. 6. Consequently thereupon on being forcefully dispossessed from the suit pr emises, an application under Order 6 Rule 17 of the Code was filed being numbere d as Misc. (J) Case No. 312 of 2007 seeking amendment of the plaint. Amendment s ought for is quoted hereunder- 2.1 At page 1 of the plaint in 6th line from the bottom after the word ’premises’ the following words are required to be added:- As well as for recovery of possession of the suit premises. 2.2 At page 7 of the plaint in between paras 12 and 13, a new para a s 12-A is required to be added containing the following contents:- 12-A. That on 17.12.2006 during the pendency of this suit, the plainti ff has been dispossessed by the defendants from the suit premise regarding which the plaintiff has lodged F.I.R. with officer-in-charge, Panbazar Police station (herein after in short O.C Panbazar P.S) which he first refused to accept and t he petitioner then had to approach the Superintendent of police Guwahati, who on the body of the F.I.R dated 17.12.2006 by his endorsement directed the O.C Panb azar P.S to look into the matter as per law and thereafter the same was received by the O.C Panbazar P.S at 5.30 p.m on 17.12.2006 itself and was registered as Panbazar P.S Case No.433/2006 corresponding to G.R Case No.6111/2006 under secti ons 448/428/34 Indian penal Code. The Plaintiff on 19.12.2006 has also preferred a petition under section 151 of the code of Civil Procedure 1908 praying for a direction to O.C Panbazar P.S to effectively enforce order dated 08.11.2006 pass ed in Misc.(J) Case No.505/2006, which has been registered as Misc. (J) Case No. 613/2006 which is still pending in this Hon’ble Court. the plaintiff also filed an application before the learned Chief Judicial Magistrate, Kamrup, Guwahati pr aying for a direction to the O.C Panbazar P.S to take necessary action on the ba sis of the FIR dated 17.12.2006, which was forwarded by the Chief Judicial Magis trate to O.C. Panbazar PS with direction to register a case and to submit fact f indings early and the same has also been tagged with earlier Panbazar P.S Case N o.433/2006 which is still pending in the said P.S for appropriate action. The pl aintiff states that the articles and belongings; which were lying in the suit pr emises when the defendants forcefully and illegally took over the possession of the suit premises and dispossessed the plaintiff there from in the manner as afo resaid; are listed separately and annexed to the plaint as Annexure-1; the value of which is approximately Rs.1,20,000/- (Rupees one lakh twenty thousand). The said articles and belongs of the plaintiff are still lying in the custody of the defendants who have refused to handover the same to the plaintiff and therefore this Hon’ble Court may be pleased to direct the defendants to return the same t o the plaintiff. 2.3. At page 7 in para 13 of the plaint, the words, ’cannot evict’ ap pearing in third line thereof, are required to be replaced by the following word s:- have illegally dispossessed the plaintiff from the suit premises on 17. 12.2006 during the prendency of this suit by taking the possession thereof, by f orcibly and illegally breaking opening the locks put thereon by the plaintiff an d thereby evicted 2.4. At page 8 in para 14 of the plaint in the first line after the word ’from’ the words ’causing any kind of thereat, nuisance, annoyance, intimidatio n in any manner and from disturbing the peaceful possession of the plaintiff in respect of the tenanted premises’ are required to be replaced by the following w ords:- from selling, alienating and/or disposing off in any manner whatsoever the suit premises 2.5. At page 8 in para 16 of the plaint after the date ’4/11/2006’ th e following words and figures are required to be added:- and on 17.12.2006 when the defendants dispossessed the plaintiff from t he suit premises by forcibly and illegally breaking opening the locks put thereo n by the plaintiff 2.6. At page 8 in para 17 of the plaint in the 2nd line after the wor d, ’injunction’, the words as well as for recovery of possession of the suit pr emises are required to be added. 2.7. At page 9 in the prayer portion in para (i) of the plaint in the 3r d line thereof after the word ’defendants’, the words can not evict are requir ed to be replaced by the following words:- have illegally dispossessed the plaintiff from the suit premises on 17. 12.2006 during the pendency of the suit by taking the possession thereof by forc ibly and illegally breaking opening the locks put thereon by the plaintiff and t hereby evicted 2.8. At page 9 in the prayer portion in para (ii) of the plaint in th e 4th line after the word ’from’ the words, causing any kind of threat, nuisanc e, annoyance, intimidation, in any manner and from disturbing the peaceful posse ssion of the plaintiff, in respect of his tenanted premises, are required to be replaced by the following words:- from selling, alienating and/or disposing off in any manner whatsoever the suit premises 2.9. At page 10 in the prayer portion in para (iii) of the plaint in the 6th line after the words, ’Premises and coma’ the following words and figure s are required to be added:- and so also for realization of Rs.1,20,000/- (Rupees One lakh twenty th ousand) being the value of the goods illegally taken by the defendants while dis possessing the plaintiff from the suit premises on 17.12.2006 and which are sepa rately listed and annexed hereto as Annexure-1 2.10. That accordingly the necessary changes in application under Orde r 39 Rules 1 and 2 may also be allowed. 7. Against the application filed under Order 6 Rule 17 of the Code by the p laintiff, the defendants submitted their objection by filing written argument co ntending inter alia raising the following points: - a) In the suit the learned trial Court framed as many as five issues on the pleadings of the parties and the suit is fixed for evidence of the plaintiff ’s side which is a bar under the proviso of Order 6 Rule 17 of the Code. b) The amendment petition has been filed after six months from the date of dispossession from the suit land without averring any cogent reason and witho ut showing any due diligence as to why they could not file the amendment petitio n before commencement of trial. c) The amendment sought for in paragraph 2.1 to 2.10 of the amendment ap plication, if allowed, would completely change the character and nature of the s uit which cannot be allowed under Order 6 Rule 17 of the Code; d) In view of new cause of action the plaintiff ought to have filed a fr esh suit. 8. The amendment as sought for by the plaintiff came up for consideration b efore the learned trial Court and the learned trial Court after hearing the part ies and upon perusal of the pleadings of the amendment application vis-à-vis the written objection, quoting the provision of Order 6 Rule 17 of the Code vide or der dated 31.07.2008 has held that under Order 6 Rule 17 of CPC provides that C ourt may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendme nts shall be made as may be necessary for the purpose of determining the real qu estions in controversy between the parties provided that no application for amen dment shall be allowed after the trial has commenced unless the Court comes to t he conclusion that inspite of due diligence, the party could not have raised the matters before the commencement of trial. In the instant suit defendants/opposi te party have filed written statement, issues are framed and defendants have fil ed list of their witnesses. It appears that the trial has already commenced in t his suit. Order 6 Rule 17 does not create any bar in allowing amendment application if the Court comes to the conclusion that inspite of due diligence the party could not have raised the matters before the commencement of the trial. On this context p etitioners placed reliance on the cases Abdul Khalique -Vs- Abdul Sattar & Ors. reported in 2007 (2) GLT 644 and Narendrasingh Sengar -Vs- Shrimati Maltidevi & Ors. reported in AIR 1993 Madhya Pradesh 248 wherein it is observed amendment m ay be allowed even after the trial has been commenced. However, the learned trial Court referring the dates of cause of action has obse rved that admittedly on 17.12.2006 the plaintiff was dispossessed from the suit premises and on the same day, i.e. on 17.12.2006 itself the plaintiff lodged an FIR with the Officer-in-Charge, Panbazar Police Station informing the incident w hich would reveal that the petitioner/plaintiff had knowledge of the dispossessi on. On the other hand, written statement in the suit was filed on 26.02.2007 and on 03.04.2007 issues were framed, on 25.04.2007 the defendants filed list of th e witnesses, whereas the amendment application was filed on 05.06.2007 which he could have filed before the commencement of the trial, thereby rejected the appl ication for amendment as sought for vide order dated 31.07.2008 in Misc. (J) Cas e No.312 of 2007 against which this revision petition has been filed questioning the legality and validity of the order dated 31.07.2008 invoking power under Ar ticle 227 of the Constitution of India. 9. Now the question is required to be answered in the instant revision peti tion as to whether the learned court’s finding is correct in rejecting the praye r for amendment by holding that since the issues have been framed, the defendant s have submitted the list of witnesses and thus the trial has already been comme nced, therefore, prayer for amendment cannot be allowed and/or whether the learn ed trial Court has acted in exercise of its jurisdiction illegally or with mater ial irregularity in rejecting the prayer for amendment on the ground that the tr ial has already commenced and as such prayer for amendment cannot be allowed. 10. Heard Dr. G Lal, learned counsel appearing for the petitioner. Also hear d Mr. S Medhi, learned counsel appearing for the opposite parties. 11. Dr. Lal, learned counsel appearing on behalf of the petitioner, referrin g the provisions of Order 6 Rule 17 of the Code, more particularly, the proviso thereto would contend that the powers of the court are wide enough to permit ame ndment of the plaint, more so, when during the pendency of the trial the plainti ff has been forcibly dispossessed from the suit premises resulting in seeking a decree of recovery of Possession which is within the ambit of power under Order 6 Rule 17 of the Code and therefore, submitted that the leaned trial Court has c ommitted an illegality in exercise of jurisdiction so vested which require inter ference since no serious injustice would be caused if amendment of plaint is all owed. 12. In support of the contentions the following decisions are referred viz., i. (2002) 7 SCC 559 (Sampath Kumar -vs- Ayyakannu & Anr.) ii. (2006) 4 SCC 385 (Rajesh Kumar Aggarwal & Ors. -vs- K.K. Modi & Ors.) iii. (2006) 6 SCC 498 (Baldev Singh & Ors. -vs- Manohar Singh & Anr.) iv. (2007) 6 SCC 167 (Andhra Bank -vs- ABN AMRO Bank N.V. & Ors.) v. AIR 1993 MP 248 (Narendra Singh Sengar -vs- Smti. Malti Devi & Ors.) vi. AIR 2000 All 90 (M/s Om Rice Mill, Jaspur & Ors. -vs- Banaras State Ban k Ltd., Kashipur & Anr.) vii. 2007 (2) GLT 499 (Hindustan Paper Corporation Ltd. & Anr. -Vs- L. M. Mar keting) viii. 2007 (2) GLT 644 (Abdul Khalique -Vs- Abdul Sattar & Ors.) In Sampath Kumar (supra), the Apex Court has held that in order to avoi d multiplicity of suit, amendment should be allowed. In the case of Sampath Kuma r amendment of the pleadings was sought for after 11 years of the filing of the suit. However, the Apex Court held that delay in praying for amendment by itself not a ground for rejecting the application. The Apex Court allowed the appeal, but in view of delay in filing application under Order 6 Rule 17 of the Code, ap pellant was directed to pay cost of Rs.2000 as a condition precedent to incorpor ate the amendment in the plaint. In Rajesh Kumar Aggarwal (supra), the Apex Court held that while permitting amen dment of the plaint the court needs to consider the subsequent events. The Apex Court further held that the court should allow all amendment that may be necessa ry for determining the real question in controversy between the parties, provide d it does not cause injustice or prejudice to the other side and it is the prima ry duty of the court to decide whether such amendment is necessary to decide the real dispute between the parties. The court should also take notice of subseque nt events in order to shorten the litigation, to preserve and safeguard the righ ts of both parties and to subserve the ends of justice. In the said case, the Ap ex Court observed that on facts, if it was permissible for appellants to file an independent suit on basis of the amendment application turned down by the High Court, it is incomprehensible why the same relief which could be prayed for in t he new suit cannot be permitted to be incorporated in the pending suit and there by allowed the prayer for amendment of the plaint. In Baldev Singh (supra), the Apex Court held that the courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injust ice or irreparable loss is caused to the other side. The court further held that commencement of trial as used in proviso to Order 6 Rule 17 of the Code must be understood in the limited sense as meaning the final hearing of the suit, exami nation of witnesses, filing of documents and addressing of arguments. In Andhra Bank (supra), the Apex Court held that while allowing the pray er for amendment or pleadings, the court cannot go into the question of merit of such amendment, it can only consider, whether such amendment would be necessary for decision of real question in controversy between the parties concerned. In Narendrasingh Sengar (supra), the case was reserved for judgment. In the said case while allowing amendment of the plaint the court held that court c ould consider the application for amendment of the pleadings even before pronoun cement of judgment. In M/s Om Rice Mill (supra), the application for amendment of plaint was filed o n the date fixed for judgment. Therefore, defendants objected filing of objectio n at such stage. The Court held that Order 6, Rule 17 permits amendment at any s tage of the proceedings as may be necessary for the purpose of determining the r eal question in controversy between the parties. The expression at any stage of the proceedings is far more elastic than the stage contemplated in Order 9, Rule 7 which specifies in no uncertain terms as to at what stage it will be attracte d. Whereas the expression ’at any stage’ used in Order 6, Rule 17 is not circums cribed or limited by any condition. The legislature in its wisdom had left the s ame very wide open without imposing any kind of limitation to its elasticity. If it is necessary for the purpose of determining the real question in controversy then it can be allowed before, or at or after the trial or even after judgment or in appeal. It can be allowed even before delivery of judgment. In Hindustan Paper Corporation Ltd. (supra), this Court has held that it is a se ttled position of law that Courts should be liberal in allowing amendment unless serious injustice or irreparable loss is caused to the other party. In Abdul Khalique (supra), this Court held that though the issues were framed th e trial in the real sense had not commenced. Proviso to Order 6 Rule 17 does not create an absolute bar for allowing amendment after commencement of trial. In t he said case, the court observed that there should be liberal approach while all owing amendment and in that case this Court did not interfere with the order of the trial Court allowing amendment of the plaint. 13. Countering the arguments advanced by the counsel of the petitioner, Mr. Medhi, learned counsel representing the opposite parties/ defendants would conte nd that the order passed by the learned trial Court do not require to be interfe red with since there is a bar under the proviso to Order 6 Rule 17 of the Code a s has been rightly held by the learned trial Court that amendment cannot be allo wed after the commencement of trial, more so, due to new cause of action, nature and character of the suit will be changed. 14. Considered the argument advanced by the contesting parties. Perused the relevant records alongwith the pleadings. Admittedly the plaintiff filed the sui t for declaration, permanent injunction and for realization of the costs of arti cles taken away from tenanted premises by the defendants. The basis for seeking the reliefs in the suit as pleaded is that the plaintiff was a tenant and the de fendants cannot evict the plaintiff forcibly and illegally from the tenanted pre mises during the pendency of the suit. Alongwith the plaint an application under Order XXXIX Rule 1 and 2 was filed wherein the learned trial Court vide order d ated 08.11.2006 directed to maintain status quo till 27.11.2006. However, the st atus quo order could not be extended due to the lapses of the plaintiff since th ere was no prayer for extension. As a consequence thereof the plaintiff was forc ibly dispossessed on 17.12.2006 from the tenanted premises which causes seeking the amendment of the plaint. 15. There is also no dispute that on 26.02.2007 defendants filed written sta tements. The learned trial Court framed issues on 03.04.2007 and on 25.04.2007 t he defendants filed list of their witnesses. Thereafter, the application for ame ndment was filed on 05.06.2007 which, however, admittedly was after several mont hs and can be construed that the trial has been commenced as held by the learned trial Court. To answer this question the decisions of the Apex Court in Baldev Singh (supra) would suffice. As stated hereinabove, in paragraph 17 of the judgm ent, the Apex Court has held that commencement of the trial as used in proviso t o Order 6 Rule 17 of the Code must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents an d addressing of arguments. The Apex Court in Ishwar Das -Vs- State of Madhya Pra desh reported in AIR 1979 SC 551 has held that the expression at any stage occ urring in Order 6