1 WP 2656 of 2011 with WP 2657 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2656 OF 2011 Rajendrakumar Bhogilal Shaha ...Petitioner Vs. Pushpa Damodar Nandurkar ...Respondent WITH WRIT PETITION NO. 2657 OF 2011 Anil Bhogilal Shaha ...Petitioner Vs. Pushpa Damodar Nandurkar ...Respondent ----- Mr. M. M. Sathaye for Petitioners. Mr. A.A. Garge for Respondent. ----- 2 WP 2656 of 2011 with WP 2657 of 2011 CORAM: V.M. KANADE J. DATED: 6th April, 2011 P.C. 1. Both these Writ Petitions can be disposed of by a common order since Respondent is the original Plaintiff/landlord and the Petitioners are original Defendants/tenants and the impugned order passed by the trial court is identical. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendants”. 2. Heard the learned counsel appearing on behalf of the Petitioners/Defendants and the learned counsel appearing on behalf of the Respondent/Plaintiff. 3 A suit was filed by the Plaintiff against the Defendants i.e. Petitioners herein for eviction on the ground of arrears of rent and bonafide requirement. The Plaintiff filed his evidence by the affidavit-in-lieu of evidence. Thereafter, an application was filed by the Plaintiff under Order 6 Rule 17 for amendment of the plaint for incorporating one para in the plaint. It was contended in the said application that the suit was filed in a hurry and though oral permission was given to the Plaintiff to file the suit on behalf of the joint family, 3 WP 2656 of 2011 with WP 2657 of 2011 later on, a document was executed by a deed dated 11.10.2001. Since a document in writing was executed by all members of the Hindu Joint Family, it was contended that an application was filed for incorporating the said fact in the plaint. This application was opposed by the Defendants by filing their Say. It was contended that the said application was filed after the commencement of the trial and, therefore, the said application was not maintainable and should not be granted. Reliance was also placed on two judgments of the Apex Court; one in Vidyabai and others V/s.Padmalatha and another1 and the other in Ashok Kumar Kaurani and others Vs. Shankar Vishnu Raverkar and others2. The Trial Court held that though this fact was within the knowledge of the Plaintiff prior to the filing of the suit, he ought to have mentioned the same in his pleading. The Trial Court held that the amendment was necessary to determine the real question in controversy. The Trial Court further held that if the proposed amendment is allowed at this stage, there would be no change in the nature of suit. 4. The learned counsel appearing on behalf of the 1 (2009) 2 SCC 409 2 2008(1) Mh.L.J. 142 4 WP 2656 of 2011 with WP 2657 of 2011 Petitioners/Defendants submitted that the Trial Court had committed an error of law which is apparent on the face of record. He invited my attention to the provisions of Order 6 Rule 17. He submitted that after the amendment, proviso to the rule clearly stipulated that the Court has first to decide whether, in spite of due diligence, the party could have filed the application before commencement of the trial and only, thereafter, the application could be considered on merits. It was submitted that the Trial Court has not considered this aspect and has decided the application on merits which is not permissible in view of the proviso to Order 6 Rule 17. The learned counsel appearing on behalf of the Petitioners/Defendants invited my attention to the plaint and submitted that no material facts were pleaded in the plaint regarding the ownership of the said property by the Plaintiff and as to how he was the landlord of the said suit premises. It was submitted that in the absence of material facts being pleaded, by virtue of the said amendment, a new case was sought to be made out. It was submitted that the said amendment, if allowed, would change the nature of the suit. It was further submitted that no averments have been made by the Respondents regarding due diligence. 5 WP 2656 of 2011 with WP 2657 of 2011 5. On the other hand, the learned counsel appearing on behalf of the Respondent/Plaintiff submitted that the amendment, essentially, was of a technical nature and it would not change the nature of the suit. It was submitted that the Trial Court has given cogent reasons for allowing the said application and this Court, while exercising its jurisdiction under Article 227 of the Constitution of India, should not interfere with the said order. 6. Before taking into consideration rival submissions, it will be necessary to keep in mind the circumstances under which discretionary power which is vested in this Court under Article 227 can be exercised and, in this context, observations which are made by the Apex Court in its recent recent judgment in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil3 will have to be taken into consideration. The Apex Court in the said judgment in para 62, 78, 79 has observed as under:- “62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High 3 2010(6) MH.L.J.661 6 WP 2656 of 2011 with WP 2657 of 2011 Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Court is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. No can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. 7 WP 2656 of 2011 with WP 2657 of 2011 (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Warayam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or 8 WP 2656 of 2011 with WP 2657 of 2011 where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L.Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgment by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At 9 WP 2656 of 2011 with WP 2657 of 2011 the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power of discretionary and has to be exercised on equitable principle. IN an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Courts. 10 WP 2656 of 2011 with WP 2657 of 2011 (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” “78. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ Courts are entertaining such disputes. In some cases High Courts, in a routine manner, entertain petition under Article 227 11 WP 2656 of 2011 with WP 2657 of 2011 over such disputes and such petitions are treated as writ petitions.” “79. We would like to make it clear that in view of the law referred to above in case of property rights and in disputes between private individuals writ Court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority.” 7. Keeping in view, therefore, the ratio of the judgment laid down by the Apex Court in the above case, it will have to be seen whether any case is made out for interfering with the order passed by the Trial Court. 8. In the present case, admitted position is that the issues are framed. Affidavit in lieu of evidence has been filed. However, the cross-examination of the Plaintiff’s witness has not begun. Order VI Rule 17 was amended by the Code of Civil Procedure (Amendment) Act, 2002, S. 7 (w.e.f. 1-7-2002) and a proviso to the said section was inserted. Order VI Rule 17 reads as under:- 12 WP 2656 of 2011 with WP 2657 of 2011 “ORDER VI PLEADINGS GENERALLY 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 question 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 the due diligence, the party could not have raised the matter before the commencement of trial.” Perusal of the said provision reveals that the court has power to permit amendment of the pleadings at any stage of the proceedings. However, the proviso puts a restriction on the said power and the trial court is under 13 WP 2656 of 2011 with WP 2657 of 2011 an obligation to consider whether application for amendment could not be filed despite due diligence by the party applying for amendment after commencement of the trial. Any application, therefore, made before commencement of the trial can be considered by the court and the said application may be granted in cases where the court feels that the amendment is necessary to decide the real controversy between the parties and in cases where such an application is filed after commencement of trial, it has to be seen whether the applicant, in spite of due diligence, could not file that application. The word “commencement of trial”, therefore, assumes importance. 9. The Apex Court in Baldev Singh vs. Manohar Singh4 in para 17 of its judgment has observed as under:- “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 4 (2006) 6 SCC 498 14 WP 2656 of 2011 with WP 2657 of 2011 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 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 noted hereinbefore, parties are yet to file 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 15 WP 2656 of 2011 with WP 2657 of 2011 and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings.” Similarly, the Apex Court in Ameer Trading Corpn. Ltd. vs. Shapoorji Data Processing Ltd.5 has observed in para 15 and 16 of its judgment as under:- “15. The examination of a witness would include evidence-in-chief, cross- examination or re-examination. Rule 4 of Order 18 speaks of examination-in- chief. The unamended rule provided for the manner in which ‘evidence’ is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit. 16 The aforementioned provision has been made to curtail the time taken by the court in examining a witness-in- chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure 5 (2004) 1 SCC 702 16 WP 2656 of 2011 with WP 2657 of 2011 provides for cross-examination and re- examination of a witness which shall be taken by the court or the Commissioner appointed by it.” The three-Judge Bench of the Apex Court in Union of India vs. Major-General Madan Lal Yadav6 took a note of the dictionary meaning of the terms “trial” and “commence” and has observed in para 19 as under:- “19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.” 6 (1996) 4 SCC 127 17 WP 2656 of 2011 with WP 2657 of 2011 10. Taking into consideration ratio of the said judgments, therefore, mere filing of affidavit in lieu of examination-in-chief may not necessarily amount to commencement of trial, unless the witness has started his deposition and the affidavit-in-lieu of evidence has been proved and is taken on record alongwith the documents. Admittedly, in this case, this stage had not reached in the trial court. Therefore, in my view, trial had not commenced. The power of the trial court was not restricted by the proviso. 11. The Trial Court has taken into consideration application for amendment on merits and come to the conclusion that the amendment was necessary for the purpose of determination of the real issues between the parties. In the present case, Plaintiff, admittedly, is a member of the joint family. Initially, according to Plaintiff, oral authority was given to him to prosecute the suit on behalf of all other members of the joint family. However, document to that effect was executed in October, 2001 and since this fact was not mentioned in the Plaint, by virtue of amendment, this fact was sought to be incorporated in the Plaint. The Trial Court, therefore, was justified in granting application for amendment. In any case, no prejudice would be caused 18 WP 2656 of 2011 with WP 2657 of 2011 to the Defendants if the Plaintiff is permitted to carry out the said amendment. Even otherwise, in my view, this is not a fit case where this Court should interfere with the impugned order passed by the Trial Court while exercising the jurisdiction vested in this court under Article 227 of the Constitution of India in view of the observations made by the Apex Court in Shalini Shyam Shetty7 (supra). 12 Both these Writ Petition are accordingly dismissed. (V. M. KANADE, J.) 7 2010(6) MH.L.J.661