IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).NO. 23211 OF 2009(O) -------------------------------------- I.A. NO.2782 OF 2009 IN OS.56/2007 OF PRL.M.C.,KOZHIKODE-II .................... PETITIONER(S): ----------------------- 1. NELLOLI SAINABA BEEVI, W/O. MAMMAD KOYA, AGED 72 YEARS, NELLOLI HOUSE, P.O.FEROKE, KOZHIKODE. 2. ALIKKAM VEETTIL SHAHUL HAMEED, AGE 42 YEARS, S/O. ABDULLA KOYA, NELLOLI HOUSE P.O.FEROKE, KOZHIKODE. 3. PUTHIYA PURAYIL HFEESA, W/O. SHAHUL HAMEED, AGED 32 YEARS, NELLOLI HOUSE, P.O.FEROKE, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN SMT.BINDU GEORGE RESPONDENT(S): ------------------------- M/S.T.P.BRICKS AND POTTERIES, CHERUVANNUR.P.O., FEROKE, KOZHIKODE, A PARTNERSHIP FIRM, REP. BY ITS MANAGING PARTNER T.P.NOUSHAD, S/O. ABDURAHIMAN, AGED 42 YEARS, CHERUVANNOOR AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ------------------------------------ EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S. NO.56 OF 2007 ON THE FILE OF THE MUNSIFF-II, KOZHIKODE DATED 31.1.200. EXHIBIT P2 ACOPY OF THE COMMISSION REPORT DATED 15.2.2007. EXHIBIT P3 A COPY OF THE COMMISSION REPORT DATED 7.4.2007. EXHIBIT P4 A COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER DATED 2.6.2007. EXHIBIT P5 A COPY OF THE PETITION FILED BY THE PETITIONERS AS I.A. NO.2739 OF 2009 DATES 25.6.2009. EXHIBIT P6 A COPY OF THE APPLICATION FILED BY THE RESPONDENT DATED 1.7.2009. EXHIBIT P7 A COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P6 DATED 3.7.2009. EXHIBIT P8 A COPY OF THE ORDER IN I.A. NO.2782 OF 2009 IN O.S. NO.56 OF 2007 ON THE FILE OF THE MUNSIFF-II KOZHIKODE DATED 4.7.2009. RESPONDENT'S EXHIBITS: --------------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23211 of 2009 ==================================== Dated this the 15th day of June, 2010 J U D G M E N T Defendants in O.S. No.56 of 2007 of the court of learned Principal Munsiff-II, Kozhikode are the petitioners before me challenging Ext.P8, order dated 04.07.2009 allowing I.A. No.2782 of 2009 in that suit for amendment of plaint to incorporate a prayer for recovery of possession. That was a suit filed by respondent on 31.01.2007 for a decree for prohibitory injunction on the premise that they are in possession of the said property. The Advocate Commissioner inspected property and submitted reports on 15.02.2007 and 07.04.2007. Petitioners filed written statement on 02.06.2007 raising contentions including that respondents have no right of possession over the said property and that a major portion of the suit property belonged to and is in the possession of respondent. Case was included in the list for trial on 02.07.2007. On the previous day respondent filed I.A.No.2782 of 2009 for amendment of the plaint to incorporate a prayer for recovery of possession alleging that petitioners have trespassed into a portion of the suit property (C schedule in the plaint) at a time when respondent company remained closed. W.P(C) No.23211 of 2009 -: 2 :- Application was allowed by Ext.P8, order which is under challenge in this Writ Petition. Learned counsel for petitioners has taken me through various decisions of the Apex Court to show when trial commences to buttress his contention that application for amendment was preferred after the trial has commenced and hence respondent was bound to comply with the proviso to Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”). According to the learned counsel there is no whisper in the affidavit in support of the application for amendment as to compliance of the said proviso. Learned counsel for respondent would contend that trial as referred to in the proviso to Order VI Rule 17 of the Code commences only when recording of evidence actually started, in this case it had not happened and hence application is not hit by the proviso to Order VI Rule 17 of the Code. 2. The proviso to Order VI Rule 17 of the Code states that when an application for amendment is preferred after the trail has commenced the party seeking amendment has to show that in spite of due diligence he could not raise the matter before commencement of trial. In Kailash v. Nankhu (2005) 4 W.P(C) No.23211 of 2009 -: 3 :- SCC 480) in paragraph 13 while dealing with an election petition the Supreme Court observed that “in a civil suit the trail begins when issues are framed and the case set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial.” It was held that the said principle will not apply to trial of election petition. Another decision on the point is Ajendraprasadji N.Pandey v. Swami Keshavprakedasji N. (2006) 12 SCC 1) where in paragraph 57 referring to the decision in Kailash v. Nankju (supra) the issue was considered. It is stated after referring to the contention that trial commenced on settlement of issues that “either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination- in-chief as date of commencement of trial the matter will fall under proviso to Order 6 Rule 17 CPC. The defendant has therefore to prove that in spite of due diligence he could not have raised the matter before commencement of trial.” Yet another decision is Baldev Singh v. Manohar Singh (2006 [3] KLT 953 (SC) where in paragraph 17 it is stated that “that apart W.P(C) No.23211 of 2009 -: 4 :- 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 hearing of the suit, examination of witnesses, filing of documents and addressing of arguments”. Going by that decision trial commences on filing of documents after the issues are framed. In Sushil Kumar Jain v. Manoj Kumar (2009 [2] KLT SN 81 (Case No.81) SC) it is held that “commencement of trial as used in proviso to Order 6 Rule 17 of the Code of Civil Procedure 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”. 3. In response learned counsel for respondents has placed reliance on Baldev Singh v. Manohar Singh which I have adverted to. Trend of the decisions referred to above is in favour of the proposition that though the words 'commencement of trial' occurring in the proviso to Order VI Rule 17 of the Code have to be given a limited meaning for the purpose of the proviso, it can be stated that trial commences when after framing of issues documents are filed and examination of witnesses started. W.P(C) No.23211 of 2009 -: 5 :- 4. I shall proceed on the above basis whether in this case proviso to Order VI Rule of 17 of the Code applied and whether respondents have shown compliance of the said proviso. It is not disputed that case was included in the list for trial on 02.07.2009 well in advance. Order posting the case for trial was passed on 04.04.2009 as learned counsel for petitioners state. Petitioners produced their documents in the trial court pursuant to that order on 25.06.2009. Case was listed for recording of evidence on 02.07.2009 but application for amendment came on 01.07.2009 certainly after issues were framed and case was posted in the list for trial on 02.07.2009 and petitioners produced their documents on 25.06.2009. If that be so I am to hold that application for amendment was after the trial commenced even giving the limited interpretation of the said expression occurring in the proviso to Order VI Rule 17 of the Code. Therefore respondent was obliged to comply with that proviso. 5. I have gone through Ext.P6, application for amendment of the plaint. There it is stated that during the period of closure of respondent company petitioners trespassed and encroached upon a portion of the plaint schedule property and reduced that portion into their possession in respect of which W.P(C) No.23211 of 2009 -: 6 :- recovery of possession is sought for. But it is seen from the reports of Advocate Commissioner filed on 15.02.2007 and 07.04.2007, not to say about the contentions raised by the petitioners in the written statement itself that portion of the property was in the actual possession of respondent. On going through Ext.P6, application I find that respondent has not complied with the proviso to Order VI Rule 17 of the Code stating why it had not sought amendment of the plaint before trial commenced as aforestated. 6. However, I do not find reason to dismiss the application for the said reason. Fairness required that respondent is given an opportunity to comply with the proviso to Order VI Rule 17 of the Code if necessary by filing a supplementary affidavit. Of course if such an affidavit is filed needless to say that petitioners will get an opportunity to counter it. Having regard to all these aspects I am inclined to give respondent an opportunity to comply with the proviso to Order VI Rule 17 of the Code. Resultantly, Writ Petition is allowed. Exhibit P8, order on I.A. No.2782 of 2009 is set aside. That application is remitted to the court below for fresh disposal after giving respondent opportunity W.P(C) No.23211 of 2009 -: 7 :- to file supplementary affidavit and comply with the proviso to Order VI Rule 17 of the Code. Petitioners will get an opportunity to file counter if any such supplementary affidavit is filed by respondent. THOMAS P. JOSEPH, JUDGE. vsv