gst 1 wp10241.09.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 10241 OF 2009. Sumita Pradipkumar Dixit... .... .... ..... Petitioner. V/s Smt.Pushpadevi G. Makharia & Ors. ... .... .... Respondents. Mr.Pravin Samdani, Sr.Counsel with Mr.Mayur Khandeparkar & Saps Rachure, i/by T.N.Tripathi & Co., Adv. For the petitioner. Mr.Swanand R. Ganoo with Mr.L.A.Rubens & Sujit S. Suryawanshi i/by M/s.Vigil Juris, Adv. For the respondents. Mr.P.S.Dani, Adv. (appointed) amicus curiae. CORAM: B.R. GAVAI, J. 29th March, 2011 ORAL JUDGMENT: Rule. Rule made returnable forthwith. By consent of parties taken up for hearing. The petitioner challenges the order dated 29.8.09 passed in RC Suit No. 187/99 vide which the applications filed by the present petitioner for amendment of written statement and counter claim below Exhs. 223 and 225 came to be rejected. 2. Respondent Nos. 1 to 4 have filed a suit against respondent Nos. 5 to 7 for possession of the suit premises. On 27.3.2000 respondent No.5 filed written statement contesting the claim of the plaintiff. On 7.4.2001 the respondent No. gst 2 wp10241.09.sxw 5 filed an affidavit and pursis submitting to the decree of evidence in favour of respondents 1 to 4. On 30.2.2001 the petitioner filed an application for joining herself as party-defendant to the said suit. Vide order dated 1.11.2001 learned trial Court rejected the said application. The petitioner being aggrieved thereby had approached this Court by Civil Revision Application No.24/2002 which was allowed by this Court vide order dated 26.1.2002. On being joined as party-defendant to the said suit the petitioner filed written statement and counter claim on 16.12.2002 inter alia seeking declaration that the petitioner was lawful tenant of the suit premises and in the alternate for declaration that she had become “irrevocable licensee” in respect of suit premises. On 30.3.2002 the respondent Nos.1 to 3 filed written statement to the counter claim of the petitioner. On 18.4.2009 petitioner filed an application for amendment to the written statement (below Ex.223) and for amendment to the counter claim (below Ex.225). Said application was resisted by respondents 1 to 4. By the impugned order dated 29.8.2009 the said application was rejected. Hence the present petition. 3. Heard Shri Samdani, learned senior counsel for the petitioner and Shri Ganu, learned counsel for respondents. Since an important question as to whether amended provisions of Order 6 Rule 17 as amended by 2002 Amendment to the Code of Civil Procedure (hereinafter referred to as the “Amendment Act 2002) are applicable to the pleadings filed before the date on which the said amendment came into effect or to the suit filed prior to the said gst 3 wp10241.09.sxw date is involved in the present matter, Shri Dani learned counsel was requested to act as amicus curiae to assist the Court. 4. Shri Samdani, learned senior counsel appearing on behalf of the petitioner submits that the amended provisions of CPC are not applicable to the suits filed before 1.7.2002 i.e. date on which the amendment to the CPC came in to effect. In this respect he relies on the judgments of the Apex Court reported in the case of State Bank of Hyderabad Vs. Town Municipal Council, (2007) 1 SCC 765 and Sumesh Singh Vs. Phoolan Devi & Ors., 2009 (12) SCC 689. Learned counsel further relying on the provisions of section 153 of CPC submitted that section 153 is a substantive provision which permits an amendment to be carried out at any stage of the proceedings and as such would not be governed by the provisions of Order 6 Rule 17 which according to learned counsel finds place in the Rules. Learned counsel further submits that in any case, the provisions of section 153 and order 6 Rule 17 will have to be construed harmoniously so as to avoid abstract construction. He submits that if the proposition that the amended provisions of CPC are not applicable only to pleadings filed before 1.7.2002 and not to the suit filed before the said date, an anomalous situation would arise in as much as the plaintiff who has filed his pleadings before 1.7.2002 would not be governed by the amended provisions of Order 6 Rule 17 of CPC and the defendant who has filed written statement after said date would be governed by the said provisions. Learned counsel in this respect relies upon a judgment of the Apex Court in the gst 4 wp10241.09.sxw case of Sonic Surgical Vs. National Insurance Co. Ltd. (2010) 1 SCC 135 and in the case of Reserve Bank of India Vs. Ment Company Ltd., (1987) 1 SCC 424. On merits learned counsel submits that in so far as the amendment to written statement is concerned the Courts are required to take more liberal view and therefore submits that in the facts of the case the learned trial Court ought to have allowed the amendment. Learned counsel in this respect relies on the judgment of the Apex Court in the case of -Usha Balashaben Swami & Ors. Vs. Kiran Apaso Swami & Ors., AIR 2007 SC 1663. 5. As against this Shri Ganoo learned counsel appearing on behalf of the respondents submits that perusal of the Amendment Act of 2002 would reveal that only the pleadings which are filed before commencement of section 16 of CPC Amendment Act, 1999 (hereinafter referred to as the “Amendment Act, 1999)and section 7 of the Amendment Act, 2002 would be saved from applicability of amended provisions of CPC. He submits that two learned Single Judges of this Court viz. S.B.Deshmukh, J. and S.S.Shinde, J. in the cases of Anil s/o Vishwanath Jadhav Vs. Pankiaj s/o Indrajeet Bassi, 2010 (2) Mh.L.J. 220 and Syed Akbar Syed Nooroddin Jahagirdar Vs. Syed Abdul Haq Syed Nooroddin Jahagirdar & Ors., 2008 (3) Bom. C.R. 860 have taken a view that amended provisions are not applicable only to the pleadings which are filed prior to amendment came in to force. He therefore submits that since written statement in the present case is admittedly filed after 1.7.2002 it would be governed by the amended provisions of CPC and as such no interference is gst 5 wp10241.09.sxw warranted with the order passed by the learned trial Court. The learned counsel relies on the judgment of Full Bench of Madras High Court in the case of M/s.Hi Sheet Industries Vs. Litelon Ltd. & Ors., AIR 2007 Mad. 78 (Full Bench) and also of learned Single Judge of the same Court in the case of Rethinam Vs. Syed A. Rahim (2005) 3 Mh.L.J. 94 taking similar view. The learned counsel further submits that since in the present case amendment is sought to be made after commencement of trial it would not be permissible unless condition specified in the proviso of Order 6 Rule 17 are satisfied. Reliance in this respect is placed on a judgment of the Apex Court in the case of Vidyabai & Ors. Vs. Padmalatha & Anr., AIR 2009 SC 1433 and judgment of the learned single Judge of this Court in the case of Badrinarayan Bansilal Somani Vs. Vinodkumar K. Shah, 2003 (2) Mh.L.J. 120. Learned counsel further submits that when a statute is capable of giving its meaning by literal interpretation, such an interpretation cannot be avoided only because it may result in harsh consequences. Reliance is placed on a judgment of the Apex Court in the case of Nasiruddin & Ors. Vs. Sita Ram Agarwal, (2003) 2 SCC 577. 6. Shri Dani, learned counsel appointed as amicus curiae, submits that if section 16 of Amendment Act, 2002 is read as whole and the clauses thereof are read in harmony with each other, it would reveal that the matters which have been saved by clauses (a) and (b) of sub-section 2 have been saved without prejudice to the generality of provisions of section 6 of General Clauses Act, gst 6 wp10241.09.sxw 1897. Learned amicus curiae submits that in view of section 6 of General Clauses Act upon repeal of any enactment unless intention appears to be otherwise, the repeal shall not affect any right, privilege, obligation or liability, acquired accrued or incurred under any enactment so repealed. Learned amicus curiae submits that rights of the parties are crystallized on the date of institution of the suit. In this respect learned amicus curiae has relied on the judgment of the Apex Court in the case of Garikapati Veeraya Vs. N. Subbiah Choudhry, AIR 1957 SC 540. He therefore submits that in view of provisions of sub- section (2) of section 16 of the Amendment Act, 2002 read with section 6 of the General Clauses Act, the suits which are filed prior to 1.7.2002 would be saved from the applicability of the amended provisions of Order 6 Rule 17 of CPC. He submits that even in the absence of clause (b) of sub-section (2) suits filed prior to date on which the amendment came into effect would be saved from applicability of amended provisions of Order 6 Rule 17. He submits however the Legislature, by inserting clause (b) has clarified the position by stating therein that amended provisions would not be applicable to the pleadings filed before the amendment of section 16 of CPC. Learned counsel further submits that two learned Single Judges of this Court in the cases of M. Sagar s/o Chainnayya Vs. Saud Akhtar Khan s/o late Abdul Hamid Khan, 2004 (2) ALL MR 384 (S.A.Bobde, J.) and Ujawala Athare (Patil) Vs. Asha Ravindra Paranjape, 2004 (2) Mh.L.J. 1126 (Dr.D.Y. Chandrachud, J.) while interpreting the provisions of amended Order 8 Rule 1 of CPC have taken a view that gst 7 wp10241.09.sxw though the words used in section 15(4) of the Amendment Act, 2002 provide that amended provisions of Order 8 shall not apply to written statement filed and presented before the commencement of Amendment Act, 2002, upon harmonious interpretation of the provisions the amended provisions would not apply only to the suits where written statement is filed prior to the date on which amendment has come into effect but also to the suits filed prior to the date on which the amendment has come into effect. Learned counsel therefore submits that applying the same principles, it will have to be held that though the word used in clause (b) of sub-section (2) of section 16 is `pleading’, it will have to be held that amended provisions of Order 6 Rule 17 would not be applicable to the suits filed prior to 1.7.2002. Learned counsel further submits that the view taken by Shinde J. and Deshmukh J. does not notice provisions of sub-Section (2) of section 16 of the Amendment Act, 2002 so also the judgments of the Apex Court in the cases of State Bank of Hyderabad and Sumesh Singh (supra) and will therefore have to be held as per incuriam. 7. The provisions of Order 6 Rule 17 have been amended by Amendment Act, 2002. The amended provisions now read thus: “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: gst 8 wp10241.09.sxw 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 mater before the commencement of trial.” Section 16 of the Amendment Act, 2002 deals with repeal and savings. Relevant clauses of said section read thus: “16.Repeal and savings.___ (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed. (2)Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897,__ (a) xxxx xxxx xxxxxxx xxxxxx xxxx xxxxxx. (b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil gst 9 wp10241.09.sxw Procedure (Amendment) Act, 1999 and section 7 of this Act; (c)xxxxx xxxxx xxxxx xxxxx xxxxx xxxxxx.” It would also be necessary to consider the provisions of section 6 of General Clauses Act, 1897 which reads thus: “6. Effect of repeal.___ Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appers, the repeal shall not__ (a) revive anything not in force existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing gst 10 wp10241.09.sxw Act or Regulation had not been passed.” 8. Sub-section (2) of section 16 of the Amendment Act, 2002 provides that notwithstanding that the provisions of said Act have come into force or repeal under sub-section (1) has taken effect and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 the amended provisions shall not apply in respect of any pleadings filed before commencement of section 16 of CPC (Amendment) Act, 1999 and section 7 of the Amendment Act, 2002. It can thus be clearly seen that what has been saved by clause (b) of sub-section (2) is without prejudice to the generality of provisions of section 6 of the General Clauses Act, 1897. The intention of the Legislature is thus clear. What has been saved under clause (b) of sub-section 2 in so far as provisions of Order 6 are concerned is without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897. It would thus clearly reveal that the provisions of section 6 of the General Clauses Act, would be relevant to determine as to whether amended provisions are not applicable only to the pleadings filed before the amendment came into effect or to a suit filed before the said date. 9. Section 6 and particularly clause (c) thereof would reveal that when an enactment is repealed, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. The Apex Court in the case of M/s.Ambalal Sarabhai Enterprises Ltd. V. M/s.Amrit Lal & Co., AIR 2001 SC 3580 has gst 11 wp10241.09.sxw held that in fact where a lis commences all rights and obligations of the parties get crystallized on that date. The Apex Court in the case of Garikapati Veeraya, cited supra, while considering the question as to when right of appeal accrues to a litigant has held that the said right exists as on and from the date of commencement of suit and although it may be actually exercised after the adverse judgment is pronounced, such right is to be governed by law prevailing on the date of institution of suit or proceedings and not by law that prevails on the date of its decision or on the date of filing of it. It has been further held that thus vested right of appeal can be taken away only by subsequent enactment if it so provided expressly or by necessary implication and not otherwise. It can thus be seen that the rights or liabilities of the parties would be governed as per the law existing on the date of institution of the suit. 10. The Apex Court while considering the purport of section 6 of the General Clauses Act, 1897 in the case of State of Punjab v. Mohar Singh, AIR 1955 SC 84 observed thus: “Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of gst 12 wp10241.09.sxw the Repealing Act and not already prosecuted to a final judgment so as to create vested right. To obviate such results a practice came into existence in England to insert a saving clause in the repealing stataute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on to dispense with the necessity of having to insert a saving clause on each occasion, S.38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the rpealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well known, is on the same lines as S. 38(2) of the Interpretation Act of England.” (emphasis supplied) The Apex Court again in the case of Ambalal Sarabhai Enterprises Ltd. Vs. Amritlal & Co. & Anr. (2001) 8 SCC 397 had an occasion to consider the scope of section 6 of the General Clauses Act, 1897 wherein it has observed thus: “25. As a general rule, in view of S.6, repeal of an stataute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words such repeal does not affect the pending gst 13 wp10241.09.sxw cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties gets crystalised on that date. The mandate of S.6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. We find Clause (c of S.6, refers the words “any right, privilege, obligation acquired or accrued” under the repealed statute would not be affected by the repealing statute. We may hasten to clarify here mere existence of a right not being `acquired’ or `accrued’, on the date of the repeal would not get protection of S.6 of the General Clauses Act. (emphasis supplied) After considering various judgments on the issue the Apex Court further observed thus: “34. Thus we find that Section 6 of the General Clauses Act covers a wider field and saves a wide range of proceedings referred to in its various clauses. We find two sets of cases, one where Section 6 of the General Clauses Act is applicable and the other where it is not applicable. 35. In cases where Section 6 is not applicable, the courts have to scrutinize and find whether a person under a repealed statute had any vested right. In case he had, then pending proceedings would be saved. However, in cases where Section 6 is applicable, it is not merely a vested right but all those covered under various clauses from (a) to (e) of gst 14 wp10241.09.sxw Section 6. We have already clarified that right and privilege under it is limited to that which is “acquired” and “accrued”. In such cases pending proceedings is to be continued as if the statute has not been repealed.” (emphasis supplied) It can thus clearly be seen that since sub-section (2) of section 16 specifically uses the words “and without prejudice to the generality of the provision of section 6 of the General Clauses Act, 1897”, not merely a vested right but all those covered under various clauses from (a) to (e) of section 6 of the said Act would be saved. It has been held that in such cases pending proceedings are to be continued as the statute had not been repealed. 11. Learned Single Judge of this Court (Bobde, J.) in the case of Sagar s/o Chainnayya (supra) had an occasion to consider the question as to whether in view of the words used in section 15(iv) of the Amendment Act, 2002 whether the amended provisions of Order 8 Rule 1 would be not applicable to a suit where a written statement was filed prior to the date on which the Amendment Act, 2002 came into effect or to a suit which is filed prior to that date. The learned Judge observed thus: “32. According to learned counsel, the effect of repeal and saving clauses is not merely that it saves written statements filed and presented before the commencement of Amendment Acts. It also, but by virtue of sub-section (2) above, which provides that the provisions of amending Act take effect “without prejudice to the generality of the provisions of gst 15 wp10241.09.sxw section 6 of the General Clauses Act, 1897”, saves pending suits from its application. It is therefore, necessary to take note of sub-section (2) of Section 32 of the Amendment Act, 1999 along with clause (1). Together, they read as follows: “(2) Notwithstanding that the provisions of this Act have came into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1879).” “(l) the provisions of rules 1 and 1-A of Order VIII of the First Schedule, as substituted or inserted by section 18 of this Act, shall not apply to a written statement filed and presented before the Court immediately before the commencement of section 18;” 33. On a true construction of the provision it appears that the only thing that is saved by the aforesaid clause is a written statement filed and presented before the Court before the commencement of the reenacted provision before 1.7.2002. This does not ipso fact mean that the amended provision applies to proceedings n which a written statement is not filed. It is clear from sub-sectin (2) reproduced above that the words in the repeal and saving clauses “without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897.” 34. It is therefore, necessary to see the consequence of the gst 16 wp10241.09.sxw provisions such as this, in V.T.Khanzode and others Vs. Reserve Bank of India and another reported in (1982) 2 Supreme Court Cases 7, the Supreme Court has observed as follows: “It is well-settled that where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict the width of the general power.” 35. Therefore, in my view though the provision specifically saves written statement already filed and presented