1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 37 OF 2009 WITH CIVIL APPLICATION NO.8036 OF 2009 IN WRIT PETITION NO. 320 OF 2007 Subhash s/o Ramchandra Shete ...Appellant Versus Jagdamba Deool Trust, Peth Bhoom and others ...Respondents ..... Shri B. R. Sontakke Patil, Advocate for the appellant Shri P. P. Chavan, Advocate for the respondents ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATED : 16TH JUNE, 2009. PER COURT :- 1) We heard learned counsel Mr. B.R Sontakke Patil for the appellant and Mr. P.P. Chavan, who appears for respondents. 2) The appellant before this Court, Undisputedly is the defendant in R.C.S. 2 No. 30 of 1995 pending in the Court of learned C.J.J.D. Bhoom, District Osmanabad and the respondent in this appeal, is the Trust registered under the provisions of Bombay Public Trust Act, 1950, is plaintiff. (The parties hereinafter referred to their status in the Suit as plaintiffs and defendant). In the said suit, two applications were filed, one by the plaintiffs seeking production of the documents and another by the defendant seeking amendment to written statement. The application for production of documents filed by the plaintiff, after hearing the parties, has been allowed by the trial court. However, the application seeking amendment to the written statement filed by the defendant has been rejected by the trial court. Both these orders were challenged by the present appellant by filing writ petition before the learned Single Bench of this Court. The learned Single Bench of this Court, after hearing the parties, has dismissed the writ petition. That is how this Letters Patent Appeal is filed by the defendant challenging the order passed by the learned Single Bench of this Court on 16.4.2008. 3) Out of two applications, one is filed, as noted by us, in foregoing para for production of documents. The said application was filed under Order XIII of C.P.C. Another application was seeking amendment to the written statement filed by the defendant. The word “pleading” is defined in Rule 1 of Order VI of 3 Code of Civil Procedure. It provides that the plaint shall be the pleading of the plaintiff and written statement shall be the pleading of the defendant. Copy of suit is annexed at Exh”B’ to the appeal. It is not in dispute that the plaintiff is the Trust represented by the President and Secretary. We are concerned with the date of filing of the suit, since the Order VI Rule 17 amendment to the pleading has suffered amendment at the hands of Central Legislature. The suit is filed by the plaintiff on 5.7.2001. From the copy of plaint we have noticed that the main prayer made in the plaint by the plaintiff seeks possession of the suit property i.e. Building premises used for the business (shop). Second prayer in the plaint made by the plaintiffs is recovery for arrears of rent amounting to Rs.7050/-. The damages from 1.1.1995 till 10.2.2009 @ Rs.500/- p.m. also have been sought by the plaintiffs. At this stage only we think it proper to refer the amendment suffered by the Civil Procedure Code. The pendency of the civil litigation in various courts at various levels in the country was/is a matter of great concern for every one including the legislature. In view of the directions given by the Hon’ble Supreme Court Malimath Committee was appointed. The report was received by the Central Legislature and accordingly Civil Procedure Code has suffered amendment. We are concerned with the amendment to Order VI Rule 17 of C.P.C. The amendment has been made enforceable since 1.7.2002 to Order VI Rule 17. The 4 amendment of pleading, i.e. Order VI Rule 17 made enforceable from 1.7.2002, was considered by the Supreme Court time and again. The parameters of Order VI Rule 17 before amendment were considered in various decisions by the Supreme Court. The judgment of the Supreme Court so far as earlier provision i.e. before amendment to Order VI Rule 17 may be noticed in the matter of P. Laxmi Reddy Vs. L. Laxmi Reddy reported in AIR 1957 SC 314, 357. After enforcement of amendment to Order VI Rule 17, the proviso has been brought on statute. This proviso, intends to curtail span/life of the litigation in the Civil Court. This proviso, to some extent is absolute discretion to allow amendment at any stage. (See 2005 AIR SCW 3827, Salam Bar Association Vs. Union of India). This proviso obligates that no application for amendment shall be allowed after the trial is 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. In the facts and circumstances of this case, we are not concerned with the proviso to Order VI Rule 17 of C.P.C. made enforceable from 1.7.2002. The reason is that the suit filed by the present defendant-plaintiff in the Civil Court is dated 10.2.1995. Both the learned counsel agreed this position. Thus, the provision under Order VI Rule 17 before amendment i.e. 1.7.2002 applies to the pleading of the present case i.e. plaint as well as written statement. We are also recording the 5 date of filing of written statement i.e. dated 17.9.1995. 4) Mr. Chavan, learned counsel for the plaintiff submits that after filing initial written statement issues were framed on 18.11.1996. Mr. Sontakke Patil points out page 26 of the compilation that is the written statement probably to the amended plaint, was filed on 18.6.2002. Thus, we are recording it only for the reason that the provision under Order VI Rule 17 prior to enforcement of the amendment i.e. Dated 1.7.2002, is applicable to the pleading i.e. plaint and the written statement. In substance, we have no concern with commencement of trial of the suit that is contemplated under the proviso brought on statute by amendment to Order VI Rule 17. 5. The application for production of documents and amendment to the written statement seems to have been considered by the trial court simultaneously. Copy of the application seeking production is on record. That application (page 28) appears to have been filed on 30.8.2006. A short application is filed by the plaintiff running in about 5/6 lines. It has been stated in the application that the cross examination of the plaintiff is not permitted by the Court to the defendant. The plaintiffs desire to file some important documents in the case, request was made to accept the documents. Alongwith 6 this application seeking production, Mr. Sontakke Patil learned counsel, points out that, list of documents, which are tried to be produced, was not filed. This application, however, was filed on 30.8.2006 and was at exhibit 71 by the trial court. Exh.72 was application filed before the trial court, written statement earlier filed by the defendant (page 29). In this application, Reference is made to earlier written statement filed by the defendants and more specifically para 3 of the same. This application is in fact is composite application seeking deletion of some part of earlier pleading i.e. written statement. With the assistance of learned counsel Mr. Sontakke, we have considered earlier pleading in para 3 of the written statement, copy of which is on record. We have also considered this application filed by the defendant on 30.8.2006. According to learned counsel Mr. Sontakke Patil, he is seeking explanation of the earlier pleading and/or the defendant is elaborating the earlier pleading. In substance, according to him, no admission is given by the defendant in the earlier pleading. The defendant is not seeking withdrawal of earlier admission. He further submits that there is no question of delay and the some delay cannot be a ground to turn down the application seeking amendment. According to him, even inconsistent and contrary stand can be taken by the parties in respect of their pleadings. He relied on some judicial pronouncement. A reference is given of the judgment of the Supreme Court in the matter of Baldev Singh 7 and Ors. Vs. Manohar Singh and Anr. (2006 (5) All M.R. (S.C.) 107) According to him, The court has wide and unfettered power to allow the amendment. To emphasis, he points out placitum “A” and “G” of the said judgment for the purpose of commencement of the trial. However, in our view, present is the case of earlier pleading i.e before enforcement of amendment to Order VI Rule 17 and therefore, at this stage and in this case, we are not suppose to consider the proviso. He also took us to para 6 of this judgment, which has referred to earlier judgment of the Supreme Court reported in AIR 1922 Privy Council 249 which proposes that liberal approach of granting payer for amendment should be taken. Thereafter, he took us to para 12. 6. Mr. Sontakke Patil, also relied upon the judgment of learned Single Bench of this Court in the matter of Maganlal Harilal Doshi and Ors. Vs. Sarvadaman Mansukhlal Doshi and others reported in 2003 (1) Mh.L.J. 390. The Chamber Summons No. 1605 of 2001 in Suit No 1577 of 1988, was before the learned Single Bench of this court. We have considered the facts obtained in the case of Maganlal (supra). The another judgment relied upon by learned counsel Mr. Sontakke Patil is in the matter of Quality Polly Closures Vs Executive engineer, M.S.E.B. Satara reported in 2000 (4) Mh.L.J. 203. The learned Single Bench has held that the court is armed with wide power and it 8 can be exercised at any stage of the proceedings and not hyper technical approach but liberal approach should be the general rule. 7. Mr. Chavan, learned counsel for the respondents-plaintiffs submits that admission was given by the defendants in earlier written statement. This admission is sought to be withdrawn by the amendment, an application was filed on behalf of the defendant seeking amendment to the written statement. According to him, admission in pleading cannot be permitted to be withdrawn. He relied upon the judgment of the Supreme Court in the matter of Heeralal Vs. Kalyanmal and others reported in (1998) 1 SCC 278. It was suit filed in the year 1993. From the judgment of the Supreme court, we have considered factual matrix available in the matter of Heeralal. From the admission given in the pleading, which was sought to be withdrawn, said attempt was turned down by the trial Court. The application for amendment was dismissed. The first defendant in the matter carried the case in revision under Section 115 of C.R.P. Before the learned Single Judge of the High Court. Revision application was heard and it was ultimately allowed. In the said judgment, the Supreme court has observed that the order passed by the High Court under Section 115 of C.P.C., allowing withdrawal of earlier admission of the defendant Nos. 1 and 2 in their original written statement abut 5 properties out of the remaining 7 9 items of Schedule A of the plaint cannot be sustained. The Hon’ble Supreme Court has referred to its earlier judgment of three Judges Bench. After considering the earlier judgment, the facts obtained in the matter of Heeralal, the Supreme court has allowed the appeal partly. Para 13 for that purpose is relevant. We have considered the ratio of this judgment of the Supreme court. 8. Mr. Chavan, learned counsel while arguing the matter submitted before us that two orders were challenged before the learned Single Bench under Article 227 of the Constitution of India and in Letters Patent Appeal is not maintainable. According to him, the petition was under Article 227 of the Constitution of India and the Letters Patent Appeal is not maintainable. 9. Per contra, learned counsel Mr. Sontakke Patil submitted that it was petition under Article 226 of the Constitution of India before the learned Single Bench of this Court and L.P.A. is maintainable. Copy of writ petition is on record. It has been labelled as petition under Article 226 and 227 of the Constitution of India. We have considered the prayers made in the petition. 10. The copy of order passed by the trial court is on record (page 33). In para 5 of the order, the learned C.J.J.D. opined that proposed amendment is in 10 respect of deleting some portion in the written statement. In para 8, it has been observed that the defendants clearly wants to withdraw the admission given in para 8(D) of his written statement Exh.15. With these observations, the application filed by the defendant seeking amendment has been rejected. The application for production of documents has been allowed. We have also considered the reply filed by the defendant, copy of which is made available and part of the compilation page 28. From this reply, Mr. Sontakke Patil has pointed out that in fact no admission has been given in the first place and there is no question of withdrawing the amount. According to him, amendment sought is of only one word. Instead of word “amount” it was typed by defendant under pressure. For that purpose, he points out para 3 of the reply. According to him, learned trial court allowed this application Exh.71 without reasons. He submitted that this order passed by the learned trial court is of two lines and without reasons and has been set aside by the writ court in petition. While parting with this reply, we may notice that defendant has stated in the reply that “production of document filed by the plaintiff be rejected with costs. Rs.2000/- as compensatory costs to the defendant”. This has been also noticed by the learned Single Bench of this Court. The learned Single Bench of this Court while disposing of the writ petition challenging these two orders Exh.71 and 72 in para 7 has dealt with the reply filed by the defendant. 11 Learned Single Bench has opined that order passed by the trial court dated 29.9.2006 below Exh. 71, means that allowing the said application shall be subject to deposit of costs which are quantified at Rs.2000/- to be deposited by the respondents i.e. original plaintiff within a period of four weeks from that date, in the trial court. Learned Single Bench noticed that defendant was pressing for the costs of Rs.2000/-. That is how the learned Single Bench has disposed of the said writ petition. So far as Exh.72 is concerned, learned Single Bench has opined that even though liberal view while considering amendment application needs to be taken. The amendment sought was for withdrawal of admission and therefore, cannot be permitted. 11 We have given anxious consideration to the submissions made on behalf of the parties. We have examined the pleadings. In our view, order passed by the learned Single Bench of this Court, cannot be interfered with. In our opinion, petition filed before the learned Single Bench, obviously was under Article 227, since order below Exh.71 and 72 were subject matter of writ petition. Section 115 of C.P.C. has also suffered amendment recently. Accordingly, Section 115 was considered by this Court and other High Courts also. Special Leave Petitions were filed in the Supreme Court. While considering the scope of section 115 and amendment to C.P.C. the Supreme 12 Court has also considered the scope of petition and/or powers of the High Court under Article 227 of the Constitution of India. 12. Thus, in our view, this appeal is devoid of substance. Letters Patent Appeal and Civil application stand dismissed. No order as to costs. *****