1 wp-8653-11 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8653 of 2011 Jotiram Shiva Patil & Ors. .. Petitioners Versus Dwarkabai Yashwant Mardane & Ors. .. Respondents Mr. Prashant S. Bhavake for the Petitioners Mr. Surel Shah for the Respondent Nos. 1 to 6 CORAM : R.M.SAVANT, J. DATE : 23rd NOVEMBER, 2011 P.C. : 1 Rule. With the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the Order dated 1-4-2011 passed by the Learned Principal District Judge, Kolhapur by which Order, the Application Exhibit 43 and 43A in Regular Civil Appeal No.126 of 2007 filed by the Original Defendant came to be allowed. 3 The brief facts necessary to be cited for adjudication of the above Petition are stated thus: The Petitioners herein are the original Plaintiffs in Special Civil Suit No.294 of 2002, filed by them for specific performance of the contract, for a direction that the Defendants be directed to execute a sale deed in respect of the suit property in their favour, and for a further declaration that the sale deed executed by the Defendant Nos.1 to 5 in favour of the 2 wp-8653-11 Defendant No.6 is not binding upon them. 4 The Respondents herein are the original Defendants who had filed the said applications Exhibit 43 and 43A. The parties went to trial and the said suit was dismissed by the Learned Civil Judge Senior Division, Kolhapur, by his Judgment and Order dated 6-2-2007. Against the said Judgment and Order passed in the said suit, the Plaintiffs preferred Regular Civil Appeal No.126 of 2007 in the District Court at Kolhapur. The said Appeal came to be admitted on 8-6-2007. It is at that stage, that it came to the notice of the Defendants that the written statement was signed by only the Defendant No.1 Dwarkabai and was verified by her only. The Defendants, therefore, moved the said application Exhibit 43 for permitting the other Defendants to sign the written statement and file the supporting affidavit in terms of Order 6 of the CPC and the Application Exhibit 43 A for correcting the verification clause. It was their case in the said applications that due to inadvertence, the Written statement was not signed and verified by the other Defendants. The said application was opposed by the Plaintiffs by filing a reply. It was the contentions of the Plaintiffs in the said reply that the written statement could not be amended at such belated stage and that if the written statement is allowed to be amended, the admission which is in favour of the Plaintiffs on account of the defect in the written statement, could be taken away. The Plaintiffs sought to rely upon the Judgments relating to the power of 3 wp-8653-11 the Court under Order 6 Rule 17 of the CPC. On the other hand the Defendants sought to rely upon the Judgment of the Apex Court reported in AIR 1969 SC 1267 in the matter of Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon and the Judgment of a Learned Single Judge of this Court reported in 2002 (Supp.) BomC.R. 8 in the matter of Om Prakash Dinodia Vs. Ashalata wd/o Late Dr. Anant. 5 The Trial Court considered the said applications Exhibit 43 and 43A and by holding that the rules of procedure are ultimately the handmaid of justice and have therefore, to be used to further the cause of justice and not to oppress it and considering the fact that the trial was conducted oblivious of the said fact culminating in the dismissal of the suit, found it fit to allow the said applications as indicated above. It is the said Order dated 1-4-2011, which is the subject matter of the above petition. 6 Heard, the Learned Counsel for the parties. 7 The Learned Counsel for the Petitioners would contend that in terms of Order 6 Rule 14 of the CPC, the parties are obligated to sign the pleadings and in view of the fact that all the Defendants have not signed the said written statement, the Trial Court has erred in allowing the said applications Exhibit 43 and 43A. The Learned Counsel would contend that the Defendants have not satisfied the due diligence test as laid down by the Catena of Judgments of the Apex Court as well as this Court. The 4 wp-8653-11 Learned Counsel would contend that there is not a whisper in the application as to why the amendment to the pleadings could not be carried out earlier. The Learned Counsel would further contend that by allowing the said applications Exhibit 43 and 43A, the Trial Court has virtually taken away a ground available to the Plaintiffs to assail the decree as in view of the said written statement not been signed by all the Defendants, the said written statement could not have been accepted as evidence by the Trial Court. 8 Per Contra, it is submitted by Shri Shah the Learned Counsel appearing for the Respondents that the reference to Order 6 Rule 17 of the CPC is a misnormer as the Defendants by way of the said Applications Exhibit 43 and 43A were in fact invoking the jurisdiction of the Appellate Court under Section 153 of the CPC. The Learned Counsel would contend that signing of the written statement by all the Defendants and correction of the verification clause, would not amount to amendment of the pleadings as according to him the pleadings are only those mentioned in Order 6 Rule 1 and Order 7 Rule 1 of the CPC. The verification clause according to the Learned Counsel can by no stretch of imagination be called as pleadings. Hence, the reliance of the Plaintiffs on the Judgment relating to jurisdiction of this Court under Order 6 Rule 17 of CPC is misplaced. The Learned Counsel for the Respondents placed reliance on the Judgment of the Apex court in the matter of Jai Jai Ram Manohar Lal 5 wp-8653-11 (supra), wherein the Apex court has held that the rules of procedure are intended to be handmaid to the administration of justice and a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The learned Counsel also placed reliance on the Judgment of the Learned Single Judge of this Court in the matter of Omprakash Dinodia (Supra). In the said case, it is held that the defect as regards not filing of the pleadings is curable. 9 Having heard the Learned Counsel for the parties, I have given my anxious consideration to the rival contentions of the parties. 10 At the outset, it is required to be noted that the parties proceeded to trial oblivious of the fact that the written statement was signed and verified only by the Defendant No.1. The perusal of the written statement discloses that it has been signed and verified by Dwarkabai who is the Defendant No.1, the suit for specific performance, has been dismissed and it is only at the time when the appeal filed by the Plaintiffs was kept for final hearing that the said defect came to light, resulting in the Defendants filing the said applications Exhibit 43 and 43A. In so far as, the said applications Exhibit 43 and 43A are concerned, by the said applications, the correction was sought to the effect of allowing other Defendants to sign the written statement and to sign the verification clause. The said application could be referable to section 153 of the CPC which reads thus: 6 wp-8653-11 “S.153. 1The Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.” 11 As can be seen, from the reading of the said provision, the concerned Court is ceased with the power to amend any defect or error or any proceeding in a suit and that all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. 12 Though the Trial Court has proceeded on the premise that the said applications Exhibit 43 and 43A have been filed invoking Order 6 Rule 17 of the CPC. In my view, the reference to the said provision is erroneous in view of Order 6 Rule 1 and Order 7 Rule 1 of the CPC.. The permission to sign the pleadings and to sign the verification clause can by no stretch of imagination be said to be amendment of pleadings. The signing of the pleadings and the verification can only be said to be for authenticating the said pleadings by their proponents. The Trial Court has, therefore, erred in adverting to Order 6 Rule 17 of the CPC. However, that would not make any material difference in view of the fact that the Court is sufficiently ceased with powers under Section 153 of the CPC to permit the correction of any defect or error in the proceedings so as to facilitate the determination of the real question before the Court. 7 wp-8653-11 13 The submissions of the Learned Counsel for the petitioners, in so far as, it proceeds on the basis that the amendments are allowed to be carried out without the Defendants satisfying the due diligence test would therefore, not stand to scrutiny for the reasons mentioned herein above. As indicated above, it is not as if the written statement was not signed by any of the Defendants or not verified. The written statement was admittedly signed by the Defendant No.1 and was also verified by her. However, due to inadvertence, the written statement was not signed by the other Defendants. The parties have proceeded to trial oblivious of the said fact and the trial concluded in the dismissal of the suit. The proceedings culminated in the decree of dismissal cannot be nullified on the basis that there was a defect in the filing of the proceedings as above. A useful reference could be made to the Judgment of the Learned Single Judge of this Court in the case of Om Prakash Dinodia (supra) wherein the Learned Single Judge (A.M.Khanvilkar, J.) in facts almost identical to the facts of the present case held that the said defect of the non signing of the plaint by the Plaintiff was curable and could be cured. Paragraph 5 of the said Judgment can be gainfully reproduced herein under: 5. Coming to the first point, undisputedly the plaint was not signed by the Plaintiffs when it was filed on 24.1.1975, but signed only by their Advocate. However, when this plea was raised by 8 wp-8653-11 the Petitioner for the first time before the Appellate Court, immediately thereafter the Plaintiffs filed application before the Appellate Court; and that Court granted permission to sign the plaint. That said Application was contested by the Petitioner, nevertheless the Appellate Court by its order dated 27th Sept., 1999 allowed the Plaintiffs to sign the plaint. The Appellate Court, therefore, thought it appropriate to permit the Plaintiffs to sign the Plaint. That order, undoubtedly, was not challenged by the Petitioner. However, once again the same plea was raised before the Appellate Court at the time of final hearing of the Appeal. The Appellate Court, in my view, rightly observed that since the order passed on 27th Sept., 1999 was allowed to become final, therefore, the same question cannot be repaginated at the time of final hearing of the Appeal. No fault can be found with the said reasoning. However, the argument before this Court is that is open to the Petitioner to challenge the order passed on 27th Sept. 1999 in the present writ petition and this Court will have to examine the correctness of the said order. However, on perusal of the reliefs claimed in the Writ Petition it would be seen that no relief for setting aside the order dated 27th Sept., 1999 has been specifically prayed. To get over this, the Counsel for the petitioner submits that in ground No. (d) of this petition the Petitioner has raised the point about the said defect in the plaint. In my view, this argument is one of desperation. If the Petitioner was serious enough in challenging the order passed on 27th Sept., 1999, he ought to have done with utmost diligence. It was open to the Petitioner to specifically challenge the said order in this petition, which has not been done. Moreover, on examining the said ground on which the Petitioner relies to contend that he could challenge the said order before this Court, it would be seen that there is no clear challenge to the reasons recorded by the Appellate Court in its order dated 27th Sept., 1999, but vague and general contention has been raised. In my view, the ground as articulated 9 wp-8653-11 would not be sufficient to question the correctness of the order dated 27th Sept., 1999. The Appellate Court has rightly discussed the ratio of the decisions to observe that provisions of Order 6 Rules 14 and 15 are merely procedural and such defects can be cured even at a latter stage of the proceedings. In this view of the matter, the first contention raised on behalf of the Petitioner, to my mind, is wholly misconceived and the same is, therefore, rejected.” 14 It is trite that in so far as, the rules of procedure are concerned, they are the hand maid of justice and have to be utilized for the furtherance of the cause of justice rather than to oppress it. A party cannot be refused relief merely because there was some error or mistake or negligence on its part as ultimately the substance has to be seen and not the form. A useful reference could be made to the Judgment of the Apex Court in in Jai Jai Ram Manohar Lal (supra). 15 Having considered the impugned order passed by the Trial Court dated 1-4-2011 and the reasons mentioned therein for allowing the said applications Exhibit 43 and 43A, in my view, there is no irregularity or any error of wrongful exercise of jurisdiction by the Trial Court in allowing the said Applications for this Court to interfere in its supervisory jurisdiction under Article 227 of the Constitution of India. The Writ Petition is accordingly dismissed. 16 Rule discharged with no order as to costs. (R.M.SAVANT, J.)