KBP 2226-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2226 OF 2009 Methodist Church in India ..Petitioner Vs. Bishop Dr.Dinesh K. Agarwal ..Respondent ......... Mr.M.P.Washi i/b.M/s.M.P.Washi and Associates, for petitioner. Mr.Uday Bobde i/b.Mr.K.R.Belosey, for respondent No.1. ......... CORAM : A.S.OKA, J.. DATE : 5 th August, 2009. JUDGMENT : 1] Heard learned counsel for the parties. It must be noted here that by order dated 22 nd July, 2009 this court directed that in view of order passed by the Apex Court, the petition will be finally heard and decided at the stage of admission. Accordingly, on 28 th July, 2009, the submissions of the learned counsel for the parties were heard and the petition was adjourned for judgment. 2] The first respondent is the original plaintiff and the present petitioner is the first defendant. The challenge in this petition is to the order dated 14 th November, 2008 passed by the learned trial judge on a chamber summons KBP 2226-09.sxw 2 taken out by the petitioner seeking permission to carry out the amendment to the written statement. 3] The first respondent has filed a suit for declaration that the resolution passed in the meeting held on 25 th March, 2007 of the executive council of the petitioner Methodist Church in India as well as the resolution passed at the special meeting of the Executive Council of the petitioner are illegal, ultra virus and bad in law. By the said resolutions the appointment of the first respondent as a Bishop of the petitioner was terminated. A prayer for perpetual injunction was made restraining defendants from preventing first respondent - plaintiff from acting as a Bishop. A written statement was filed to the said suit by the petitioner on 22 nd November, 2006. During the course of cross-examination of first respondent - plaintiff, the chamber summons for amendment was taken out by the petitioner. In the affidavit in support of the chamber summons it was stated that during the course of cross-examination of first respondent he admitted that there was a general conference session of the petitioner M.C.I. held at Kolkata. According to the case of petitioner, the question of dismissal of first respondent plaintiff was placed before the said general conference at Kolkata and the general conference recommended creation of fourth vacancy of Bishop in the state of Gujarat and Maharashtra. The said recommendation was made on the basis of the KBP 2226-09.sxw 3 termination of the services of the first respondent. The contention is that as said conference was held in May, 2007, reliance could not be placed on the proceeding of the said conference in the written statement which was filed earlier. It is contended in the affidavit in support that, when the question was asked to the plaintiff in the cross-examination as regards the decision taken in the conference at Kolkata, an objection was raised by the learned counsel for first respondent to the said question on the ground that what happened in the said conference has not been pleaded in the written statement. Therefore, the said question could not be asked. By the amendment, the petitioner is seeking to add two paragraphs which are based on recommendations of general conference of Methodist Church in India (petitioner) held at Kolkata during the period from 19 th May, 2007 to 27 th May, 2007. According to the case of the petitioner, the general conference recommended that as the service of first respondent was terminated, there is a vacancy of Bishop in Gujarat and Maharasntra and the said vacancy may be also filled in. By amendment it was sought to be contended that the resolution passed in the said conference at Kolkata amounts to approval by the general conference of the alleged termination of the first respondent. The amendment was objected to by the first respondent mainly on the ground that the trial had commenced on 17 th July, 2008 and the present chamber summons was belatedly taken out on 18 th October, 2008. A KBP 2226-09.sxw 4 reliance was placed on the amended Rule 17 of order VI of the Code of Civil Procedure, 1908 (herein after referred as the “said code). Reliance was also placed on order dated 16 th November, 2007 directing expeditious hearing of the suit. It was contended that the first respondent is not made aware about holding of any general conference or any resolution passed in the said conference. By the impugned order, the chamber summons was rejected mainly on the ground that there is no explanation from the petitioner for the delay from 27 th May, 2007 till 18 th October, 2008 when the chamber summons was filed. It was held that in absence of any explanation, in the light of amended Rule 17 of the Order VI of the said code, the amendment cannot be granted. 4] Learned counsel for the petitioner stated that during the cross- examination of first respondent plaintiff, the petitioner’s Advocate relying on the subsequent event of meeting held on 27 th May, 2007 asked certain questions. He pointed out that an objection was raised on behalf of the first respondent for putting the question on the basis of the subsequent event on the ground that the said subsequent event was not pleaded. Therefore, an occasion for filing the chamber summons arose. He submitted that in the affidavit in support of chamber summons, there was sufficient explanation for the alleged delay and in fact there was no delay. The learned counsel for KBP 2226-09.sxw 5 first respondent submitted that from May-2007 the petitioner was having knowledge of what transpired in the alleged meeting held at Kolkata. He submitted that the petitioner filed the chamber summons only after the cross- examination of the first respondent plaintiff was partly recorded. He placed reliance on the decision of the Apex Court in the case of Vidyabai and others Vs.Padmalatha and another [(2009) 2 SCC 409]. It is submitted that the Apex Court held that the Rule 17 of Order VI of the said Code is in the mandatory form and the jurisdiction of the court to allow an application for amendment is taken away unless conditions precedent are satisfied. It is pointed out that the Apex Court held that before allowing amendment, the court has to come to the conclusion that despite due diligence, the party could have have raised the matter before the commencement of trial. He pointed out that the Apex court held that even filing of an affidavit in lieu of evidence amounts to the commencement of trial. It is submitted that no interference is called for especially when in terms of the order of the Apex court, the trial court is under an obligation to conclude the trial expeditiously. 5] I have given careful consideration to the submissions. As pointed out earlier, the written statement was filed by the petitioner on 26 th November, 2006. It is not in dispute that the cross-examination of the first respondent commenced on 17 th July, 2008. In October, 2008, during the course of cross- KBP 2226-09.sxw 6 examination, a question was asked by the counsel for the petitioner to the first respondent on the proceedings of the conference of the Methodist Church in India held at Kolkata between 19 th May, 2007 to 27 th May, 2007. It is stated in the affidavit in support of the chamber summons that the first respondent plaintiff admitted that there was a general conference session of the Methodist Church in India held at Kolkata. At that stage, an objection was raised by the learned counsel appearing for the first respondent to the said question put to the first respondent on the ground that there was nothing stated in the written statement of the petitioner as regards what transpired in the said conference. Therefore, immediately on 18 th October, 2008 a chamber summons for amendment was taken out. It must be noted here that the challenge in the suit filed by first respondent was to the resolution dated 25 th March, 2006 by which there was a termination of the appointment of the first respondent – plaintiff as Bishop for the areas of Maharashtra and Gujarat. It will be necessary to refer to the amendment which was sought to be introduced to the chamber summons. Two paragraphs were sought to be added to the written statement. The first additional paragraph was sought to be incorporated for referring to what transpired in the general conference of Methodist Church in India held at Kolkata during the period 19 th May, 2007 to 27 th May, 2007. It is stated in the said paragraph that the general conference recommended that the fourth vacancy caused on account of termination of KBP 2226-09.sxw 7 first respondent may be filled in. The second paragraph was sought to be added for raising a contention that though approval of general conference was not required for termination of service of first respondent, the resolution passed in the said meeting held in May, 2007 amounts to approval by the general conference of the termination of first respondent. 6] It must be stated that the alleged event of general conference of Methodist Church in India passing the aforesaid resolution in the general conference held at Kolkata in May, 2007 is certainly relevant. In fact, looking to the controversy involved, the alleged resolutions passed at Kolkata will have to be considered while adjudicating the dispute involved in the suit. The event pleaded by the petitioner – defendant no.1 was a subsequent event which occurred in May, 2007 after written statement was filed by the petitioner. A Civil Court is bound to take notice of the subsequent events which are relevant to the controversy involved in the suit. As pointed out earlier, in the affidavit in support of the chamber summons, the petitioner has stated that the first respondent accepted in cross- examination that there was a general conference held at Kolkata in May 2007. If an objection for putting the questions to the first respondent on the said conference was not raised, there was no question of the petitioner coming out with an application for amendment. The questions on the aspect KBP 2226-09.sxw 8 of conference held at Kolkata ought to have been allowed. As stated earlier, the objection was admittedly raised in October, 2008 and in the same month i.e. on 18 th October, 2008 the chamber summons was taken out for amendment for incorporating the aforesaid subsequent events. Looking to the aforesaid reasons set out in the affidavit in support of the chamber summons it is obvious that there was enough explanation for filing said application/chamber summons in October, 2008. Therefore, this was a case where the condition precedent for allowing amendment of pleadings after commencement of trial was fully satisfied. All this has been completely glossed over by the learned Trial Judge. He has completely ignored the reasons set out in the affidavit filed in support of chamber summons for amendment. He has merely referred to the fact that the chamber summons was taken out on 18 th October, 2008 for placing on record the subsequent events which have taken place on 27 th May, 2007. He has ignored the reasons which compelled the petitioners to seek the amendment in October 2008. In the circumstances, this was the case where amendment ought to have been allowed. The petitioner defendant wants to rely upon subsequent event of resolution passed in the general conference held in May, 2007. He has been prevented from putting questions to first respondent plaintiff on the said resolution passed in the meeting on the ground that there are no pleadings. If the prayer for carrying out amendment to the written statement KBP 2226-09.sxw 9 is rejected, the petitioner will be prevented from relying on the subsequent event which is certainly relevant to the issue involved in the suit. 7] Hence, I pass the following order. (a) The impugned judgment and order dated 14 th November, 2008 is quashed and set aside. (b) Chamber Summons at Exhibit 22 taken out by the petitioner is made absolute. (c) Amendment be carried out within a period of four weeks from the date of production of an authenticated copy of this order before the trial court. (d) It will be open for the first respondent either to file further affidavit in lieu of examination in chief or to apply to the trial court for recording further examination-in-chief. (e) Writ Petition is allowed in the above terms with no order as to costs. ( A.S.OKA, J. )