1 (WP3451.11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3451 OF 2011 Garware-Wall Ropes Ltd. .... Petitioner. v/s Shashikant Bhalchandra Garware & Ors .... Respondents. Mr. A.A. Valsangkar i/b Mr. Pankaj Das for the Petitioner. Mr. Shardul Singh with Mr. Kamlesh Rajwani i/b Duttmenon Dunmarsett for the Respondents. CORAM: V. M. KANADE, J. DATE : 4th May, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondents. 2. Petitioner herein is aggrieved by the order passed by the trial court dated 13/01/2011 on an application filed by 2 (WP3451.11) the Respondents/Plaintiffs for amendment of the plaint. By the said order, the trial court was pleased to allow the said application for amendment and permitted the Plaintiffs to amend the pleadings in terms of 5(b), 6(a), 9(a) and 10(a) of the Schedule. 3. Petitioner herein is the original Defendant and the Respondents are original Plaintiffs. For the sake of convenience parties shall be referred to as “Plaintiffs” and “Defendant”. 4. Plaintiffs had filed a suit seeking possession of the suit premises and for payment of mesne profits under section 41 of the Presidency Small Causes Courts Act. Defendant filed their Written Statement. Issues were framed and court passed an order directing the Plaintiffs to file their affidavit in lieu of evidence. However, before the affidavit in lieu of evidence was filed, Plaintiffs preferred an application for amendment. In the said application, it was contended that the Plaintiffs may be permitted to raise the alternate plea denying the contention of the Defendant that the license in 3 (WP3451.11) respect of the suit premises was in the nature of irrevocable license and for consequential amendments. This application was opposed by the Defendant by filing their reply. The trial court, however, allowed the application for amendment. 5. The learned Counsel appearing on behalf of the Petitioner/Defendant submitted that by virtue of amendment to order VI Rule 17 by Code of Civil Procedure (Amendment) Act, 2002, S.7 (w.e.f.1-7-2002), a proviso was inserted in the said provision as a result of which an application for amendment could not be entertained by the court after commencement of the trial, unless it was established that despite due diligence, party could not apply for amendment before commencement of the trial. It was submitted that the trial court did not take this fact into consideration and, therefore, on this ground alone the order was liable to be set aside. Secondly, it was submitted that the Plaintiffs were very well aware of this fact about defence of the Defendant and this was clear from the notice of eviction which was given by the Plaintiffs in which it was specifically mentioned that the Defendant were claiming that they were irrevocable 4 (WP3451.11) licensees. It was submitted that, it was, therefore, open for the Plaintiffs to have taken this alternate plea when they filed the suit since they were aware about the defence which was likely to be taken by the Defendant. It was also submitted that the order directing the Plaintiffs to file their affidavit in lieu of evidence was passed in 2008 and the Plaintiffs had deliberately delayed filing of affidavit in lieu of evidence and, therefore, by virtue of the Court directing the Plaintiffs to file their evidence the trial had commenced. In support of the said submission, the the learned Counsel for the Petitioner placing reliance on the judgments of the Supreme Court in (i) Kailash vs. Nankhu and Others1, (ii) Agendraprasadji N. Pandey and another vs. Swami Keshavprakeshdasji N. and Others2 and in (iii) Vidyabai and Others vs. Padmalatha and another3 submitted that, therefore, it was not open for the trial court to consider the application for amendment after commencement of the trial in view of the proviso and on account of due diligence being not observed the application for amendment ought to have been rejected. On the other hand, the learned Counsel 1 (2005) 4 SCC 480 2 (2006) 12 SCC 1 3 (2009) 2 SCC 409 5 (WP3451.11) appearing on behalf of the Respondents/Plaintiffs relied upon the judgment of the Supreme Court in Revajeetu Builders and Developers vs. Narayanswamy and Sons and Others1 6. After having heard both the Counsel at length, in my view, it is not possible to interfere with the order passed by the trial court permitting the amendment of the Plaint on the application made by the Respondents/Plaintiffs for amendment raising the alternate plea after Written Statement was filed. 7. Before taking into consideration the rival submissions, it would be fruitful to take into consideration the provisions of Order VI Rule 17 in which a proviso was inserted by Code of Civil Procedure (Amendment) Act, 2002, S.7 (w.e.f.1-7-2002) for rule 17. Order VI Rule 17 reads as under:- “ORDER VI PLEADINGS GENERALLY 17. Amendment of pleadings:- 1 (2009) 10 SCC 84 6 (WP3451.11) 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 indicates that a proviso was inserted by virtue of the Code of Civil Procedure (Amendment) Act, 2002. On a plain reading of the said proviso, it is clear that the proviso has been incorporated to ensure that applications for amendment should not be entertained after commencement of the trial, unless the Court comes to the conclusion that in spite of due diligence 7 (WP3451.11) the party could not have raised the matter before the commencement of trial. It has to be noted that the proviso does not take away discretion of the Court in granting the application for amendment. The Court has to be satisfied in cases where application is made before commencement of trial that the amendment is necessary for the purpose of determining the real question in controversy between the parties and that the pleadings are amended in such a manner and on such terms as are just. The proviso also does not take away discretion of the court to carry out the amendment which is found in the main rule. The proviso, however, imposes duty on the court to examine whether the party could not have applied for amendment earlier in spite of due diligence and also to examine whether it is necessary to determine the real controversy and whether the said amendment is on such terms as are just. 8. The real controversy which has been raised in this case is : whether the application for amendment was made before commencement of the trial or thereafter? It has been strenuously urged by the learned Counsel appearing on 8 (WP3451.11) behalf of the Petitioner/Defendant that this application has been filed after commencement of the trial since the order was passed by the Court asking the Plaintiffs to file their affidavit in lieu of evidence. It is, therefore, urged that after the issues are framed and documents are filed and parties are directed to lead evidence, that would be a stage where the trial has commenced. On the other hand, the learned Counsel appearing on behalf of Respondents/Plaintiffs submitted that since the affidavit in lieu of evidence was not filed, trial had not commenced. 9. In Vidyabai1 (supra), a suit was filed on 16/12/2003 and the Written Statement was filed on 17/4/2004. Issues were framed and parties had filed their respective affidavits of evidence and dates had been fixed for cross-examination of the said witnesses and, in this context, the Apex Court observed that filing of the affidavit in lieu of examination in chief of the witness would amount to commencement of the trial. In this context, reliance was placed on the judgment of the Apex court in Union of India vs. Major-General Madan Lal 1 (2009) 2 SCC 409 9 (WP3451.11) Yadav1 wherein the terms “trial” and “commence” were taken into consideration. Similarly, reference was also made to the judgments in Kailash vs. Nankhu2 and in Agendraprasadji N. Pandey and another vs. Swami Keshavprakeshdasji N. and Others3. In Kailash (supra), the Apex Court has, at one stage, observed that in civil suit trial begins when the issues are framed and the case is set down for recording of evidence, whereas in election petition, proceedings would commence with the presentation of election petition. Reference was also made to the judgment in Agendraprasadji N. Pandey (supra) in which the purpose of introduction of the said proviso was taken into consideration. Reference was also made to the judgment in Baldev Singh vs. Manohar Singh4. In the said judgment the Apex Court also had taken into consideration what is the stage at which it could be said that the trial had commenced. 10. In my view, ratio of the judgments in Vidyabai5 (supra), Kailash (supra) and in Agendraprasadji N. Pandey (supra) 1 (1996) 4 SCC 127 2 (2005) 4 SCC 480 3 (2006) 12 SCC 1 4 (2006) 6 SCC 498 5 (2009) 2 SCC 409 10 (WP3451.11) would not apply to the facts of the present case. The Apex Court in Baldev Singh vs. Manohar Singh1 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 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 1 (2006) 6 SCC 498 11 (WP3451.11) 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 and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings.” The Apex Court, therefore, in Baldev Singh vs. Manohar Singh1 has observed that the term “commencement of trial” which is used in the proviso to Order VI Rule 17 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 and, thereafter, in the said judgment, the Apex Court observed that since the parties are yet to file their documents, application for amendment could not be rejected since proviso to Order VI 1 (2006) 6 SCC 498 12 (WP3451.11) Rule 17 confers wide and unfettered discretion in the Court to allow the amendment of the written statement at any stage of the proceedings. 11. In Revajeetu Builders and Developers vs. Narayanswamy and Sons and Others1, the Apex Court in para 63 of its judgment has laid down the factors which are to be taken into consideration while dealing with the applications for amendment. Para 63 of the said judgment reads as under:- “Factors to be taken into consideration while dealing with application for amendments 63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; 1 (2009) 10 SCC 84 13 (WP3451.11) (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” Similarly, in para 64 of the said judgment in Revajeetu 14 (WP3451.11) Builders and Developers1 (supra), the Apex Court has observed as under:- “64. The decision on an application made under order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.” 12. When applications are filed for amendment, it is not possible to lay down any strait jacket formula on the basis of which lower court can either amend or reject the application for amendment and the court has to take into consideration various factors as pointed out by the Apex Court in the said judgment in Revajeetu Builders and Developers2 (supra), 1 (2009) 10 SCC 84 2 (2009) 10 SCC 84 15 (WP3451.11) and, at the same time, the trial court should not entertain the application after commencement of the trial, unless it is satisfied that in spite of due diligence, it was not possible for party to apply for amendment. The amendments which are necessary for deciding the real controversy normally have to be entertained in order to avoid multiplicity of proceedings and to ensure that real controversy is determined by the Court. 13. In the present case, admittedly, affidavit in lieu of evidence has not been filed by the Plaintiffs. Plaintiffs have raised the alternate plea that the defence raised by the Defendant about irrevocable license is not correct and has made consequential amendments in view of the alternate plea which has been taken. The trial court has considered this aspect and has given cogent reasons why it felt hat it was necessary to amend the plaint. The trial court has observed that Plaintiffs were entitled to claim alternative relief and the proposed amendment was to the extent of facts. 16 (WP3451.11) 14. Under these circumstances, therefore, it is not necessary to interfere with the impugned order passed by the Small Causes Court. Writ Petition, therefore is dismissed. Time to file additional Written Statement is granted to the Defendant and the Defendant may do so within 8 weeks from today. (V.M. KANADE, J.) 17 (WP3451.11)