Civil Revision No.5523 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.5523 of 2010(O&M) Date of Decision: May 4, 2011 Maninder Kaur and another .....Petitioners v. Dr.Kanwaljeet Singh and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Arun Jindal, Advocate for the petitioners. Mr.Harsh Aggarwal, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 28.5.2010 passed by learned Civil Judge, Junior Division, Patiala, vide which application for amendment of written reply to the counter claim set up in the written statement by respondents-defendants and in the replication filed by petitioners-plaintiffs in reply to the written statement filed by respondents- defendants, was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for permanent injunction restraining respondents-defendants from dispossessing the petitioners-plaintiffs or interfering with their possession over the property in dispute, duly described in the heading of the plaint, was filed on the ground that they are in possession of the premises in dispute as tenant under the respondents-defendants. Suit was contested by respondents-defendants by taking the plea that in fact petitioners-plaintiffs are in possession of the shop in dispute Civil Revision No.5523 of 2010(O&M) -2- as mortgagee as the same was mortgaged with them and that the mortgage amount was Rs.15,000/- and hence, claim has been set up by respondents- defendants for seeking possession of the property in dispute by way of redemption of mortgage deed. Replication as well as the reply to the counter-claim, set up by respondents-defendants in their written statement has been filed by petitioners-plaintiffs by taking the plea that alleged mortgage deed is false, forged and fabricated one. Issues were framed. Evidence of the plaintiffs was closed in affirmative. Part evidence of the defendants was also recorded. However, cross-examination of witnesses of defendants was deferred at the request of counsel for the petitioners-plaintiffs. Thereafter, present application under Order VI Rule 17 of the Code of Civil Procedure (for short `the Code') was filed for amendment of the replication and reply to the counter-claim set up in the written statement filed by respondents-defendants, which was contested by respondents-defendants. The application was dismissed by learned trial Court by observing as under:- “4. The perusal of the file reveals that the defendant has taken up plea to the effect that the mortgage deed dated 16.4.2003 was executed in favour of the plaintiff and the possession of the shop was also handed over. The plaintiff had filed the suit for permanent injunction claiming himself to be the tenant. The defendant appeared and filed its written statement along with counter claim for the redemption of the property. The perusal of the file further reveals that the defendant had also filed an application to deposit the mortgage amount which was declined by the court vide order dated 7.12.2005. The issues in the present case were framed and the plaintiff had led evidence and has closed the evidence and the case was posted for evidence of the defendants when the present application was filed. The plaintiff is seeking the amendment at the fag end of the case. The plaintiff has appeared in the witness box as PW3 and had given her statement by way of affidavit. In her statement by way of Civil Revision No.5523 of 2010(O&M) -3- affidavit Ex.PW3/A the plaintiff has specifically taken up the plea that the mortgage deed in question is forged and fabricated document. The said affidavit was filed on 26.9.2006 in the Court. Thus it cannot be stated that the plaintiff was not aware about the plea of the mortgage deed to be forged and fabricated document. The plaintiff could not have mentioned this fact in the written statement to this counter claim and in the replication. As per the provisio to Order 6 Rule 17 of CPC, no amendment shall be allowed after the commencement of the trial and in the present case the trial had already commenced and the case was posted for evidence of the defendant. The defendant had already examined two witnesses and the case was posted for cross-examination of said witnesses when the application in hand was filed. Since the plaintiff had already taken up the pleas of the mortgage deed being forged and fabricated document in her statement therefore it cannot be said that the plaintiff was not aware of the said fact. The present application has been filed after a period of 2 years from the date when the plaintiff had given her evidence by way of her affidavit Ex.PW3/A. Therefore, it only shows that the plaintiff had only slept over the matter. Thus, the proposed amendment by the plaintiff at the fag end of the suit cannot be permitted. Accordingly, the application for amendment of written statement to counter claim and the replication is hereby dismissed.” It has been contended by learned counsel for the petitioners- plaintiffs that petitioners-plaintiffs have already taken the plea that the alleged mortgage deed is a false, forged and fabricated document created by respondents-defendants and, however, amendment sought is only explanatory in nature. It has also been contended that plea now sought to be taken by way of amendment could not be taken earlier due to inadvertence and, however, the plea being sought to be taken is very necessary for the proper adjudication of the controversy between the parties and hence, it is Civil Revision No.5523 of 2010(O&M) -4- contended that the same can be allowed on payment of cost. He has also placed reliance upon Surender Kumar Sharma v. Makhan Singh, 2009 (4) RCR (Civil) 597, wherein it was observed by Hon'ble Apex Court, on the peculiar facts and circumstances of that case, that mere delay and latches in making the application for amendment cannot be a ground for refusal of the amendment and even the amendment prayed for at belated, if the same is necessary in order to complete and full justice in the case, the same can be allowed and another party can be compensated by way of cost. He has also placed reliance upon Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, 2007(2) RCR (Civil) 830. However, the facts of that case are not applicable to the facts of present case as in that case, it was observed by Hon'ble Apex Court that proviso to Order 6 Rule 17 of the Code would not be applicable in that case as the trial of the suit had not yet commenced in that case, when amendment of written statement was sought. On the other hand, it has been contended by learned counsel for the respondents-defendants that after recent amendment in Order 6 Rule 17 of the Code, vide which proviso has been added, the Court can allow the amendment before commencement of trial only and not after commencement of trial and that proviso is mandatory in nature. He has also placed reliance upon Vidyabai and others v. Padmalatha and another, 2009(1) RCR (Civil) 763: 2009 AIR (SC) 1433 and Ajendraprasadji N.Pande and another v. Swami Keshvprakeshdasji N. and others, 2007 (1) RCR (Civil) 481: 2007AIR (SC) 806. It is pertinent to reproduce amended provision of Order 6 Rule 17 of the Code, which reads as under:- “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 Civil Revision No.5523 of 2010(O&M) -5- conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” A plain reading of the aforesaid provision shows that no application for amendment shall be allowed after the trial has commenced unless in spite of due diligence, the matter could not be raised before the commencement of trial. The validity of the said provision has been upheld by Hon'ble Apex Court in Salem Advocate Bar Association v. Union of India, 2005 (3) RCR (Civil) 530: (2005) 6 SCC 344, relevant paragraph of which read as under:- “ Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.” In Vidyabai and others' case (supra) it was observed by Hon'ble Apex Court by referring to the earlier decisions of Hon'ble Apex Court in Kailash v. Nanhku, 2005(2) RCR (Civil) 379: (2005) 4 SCC 480, that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. It was further observed that proviso to Order VI Rule 17 of the Code is mandatory in nature. The following observations have been made by Hon'ble Apex Court, which read as under: “7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a Civil Revision No.5523 of 2010(O&M) -6- proviso to Order VI Rule 17 of the Code, which reads as under: 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. It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” In Ajendraprasadji N.Pande and another's case (supra), Hon'ble Apex Court observed that party seeking amendment has to prove that in spite of due diligence, he could not have raised the matter before commencement of trial. Relevant paragraph of the same reads as under:- “57. The above averment, in our opinion, does not satisfy the requirement of Order VI rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash v. Nankhu and others (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.” In the present case, application for amendment has been filed by petitioners-plaintiffs after their evidence was closed and part evidence of respondents-defendants was also recorded and after seeking some dates for cross-examination of witnesses of the defendants. There is no explanation on the part of petitioners-plaintiffs as to why the paragraph, which is now sought to be added in the replication and reply to the written statement filed by respondents-defendants could not be added earlier when the original replication and reply to counter-claim set up by the respondents-defendants in the written statement was filed. The stand taken by petitioners-plaintiffs since the very beginning is that the alleged mortgage deed is a fake and fabricated document and in fact no such mortgage deed was executed. Petitioners-plaintiffs intend to explain the said plea by way of amendment. Civil Revision No.5523 of 2010(O&M) -7- Hence, learned trial Court has rightly observed that when the facts were in the knowledge of petitioners-plaintiffs since the very beginning and when the plea was taken by them in the original reply filed by them as well as in the statement of one of the plaintiffs recorded before the Court by way of an affidavit, petitioners-plaintiffs have failed to prove as to how the said plea was not taken at the relevant time. Moreover, the amendment is not such, which is essential for the decision of present suit and without which the controversy between the parties cannot be properly adjudicated. Hence, none of the aforementioned judgments, on which reliance has been placed by learned counsel for the petitioners-plaintiffs, are applicable to the facts of this case. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 4.5.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.