1 S.B. CIVIL WRIT PETITION NO.7652/2007. Sukh Lal Vs. Poonam Chand & Ors. Date of Order :: 11th April 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Deelip Kawadia, for the petitioner. Mr. P.R. Mehta, for the respondents. ... BY THE COURT: This writ petition is directed against the order dated 28.09.2007 as passed by the learned Civil Judge (Senior Division), Kushalgarh, District Banswara rejecting the application for amendment of the plaint as moved by the plaintiff-petitioner on 12.09.2007. The plaintiff-petitioner has filed a suit for perpetual injunction (C.O. No.2/2006) stating himself being in possession of a plot of land measuring 60' x 80' comprised in Araji No.127 at village Tadamangla, having been purchased by him under a registered sale deed dated 11.11.2003 from one Omji Gautam Raoji. The plaintiff has alleged unauthorised interference in and attempt to dispossess him from the land in question by the defendants; and has prayed for the relief of perpetual injunction that the defendants should not create any interference in the use and occupation of the land and raising of construction by him. The petitioner-plaintiff has also prayed 2 that if the defendants take over possession during the pendency of the suit, they be dispossessed and possession be restored to him (Plaint Annex.1). The defendants have denied the plaint allegations and have asserted, inter alia, that the land in question as referred in the plaint is of Araji No.129 in the khatedari of defendant No.1, Poonam Chand. It has also been asserted that Omji and others have attempted to get converted the land of Poonam Chand in Araji No.129 while representing it to be the land of Araji No.127; and that appropriate proceedings were pending in the competent court. It appears from the material placed on record that the written statement was filed by the defendants on 10.04.2006, some documents were filed by them on 04.05.2006, and then, the case file was sent to the Appellate Court (in the appeal relating to interim order) and was received back by 05.01.2007. The suit proceedings were adjourned on 05.01.2007 for admission/denial of the documents ; on 12.02.2007, the defendants filed documents and the matter was again adjourned for admission/denial; on 12.03.2007, the learned Presiding Officer was on leave; on 09.04.2007 and 27.04.2007, the counsel for the plaintiff-petitioner filed some documents and the matter was again adjourned for admission/denial; on 13.07.2007, the learned Presiding Officer was again on leave; then on 24.08.2007, counsel for the 3 plaintiff filed some more documents and issues were framed and the matter was posted for plaintiff's evidence on 12.09.2007. On 12.09.2007, by way of the application Annexure-3, the plaintiff-petitioner alleged that during pendency of the suit and in disobedience of the status quo order as made in the connected Civil Misc. Application No.1/2006, the defendants unauthorisedly took over possession of the property in dispute and were liable to be ejected therefrom. The petitioner, accordingly, prayed for incorporation of such plea in the plaint of his forcible dispossession by the defendants and for the relief of recovery of possession. The petitioner stated that the evidence has not started yet and before commencement of evidence, the application for amendment of plaint was being presented and earlier, the original file was summoned by the Appellate Court that has now been received back. The application was opposed by the defendants with the reply Annexure-4 that as per Order VI Rule 17 of the Code of Civil Procedure, a party cannot be allowed permission to amend the pleadings after commencement of the trial; that the plaintiff earlier moved an application complaining of disobedience on 13.02.2006 and did not state anything about forcible dispossession from the hutment; and that the referred hutment was situated at Araji No.129; that by allowing the 4 amendment, the nature of the suit would be altered; and that the plaintiff has not presented court fees on the relief of possession. The defendant also pointed out that the plaintiff has already made the prayer in the plaint that if during the pendency of the suit the defendants take over possession of the land in question, they be dispossessed and contended that the required amendment was, therefore, not even necessary. The learned Trial Court has proceeded to reject the application seeking amendment by the impugned order dated 28.09.2007 (Annex.5) with the observations that the incident in question is alleged to be of 12.02.2006 and the case file had been received from the Appellate Court on 05.01.2007 and, therefore, the submissions of the plaintiff were not correct. It has also been observed that the trial commences from framing of the issues; that in the present case issues were framed on 24.08.2007; and that there was no such case of the plaintiff that before 24.08.2007, he was unable to move such application for amendment despite due diligence. Assailing the order aforesaid learned counsel for the petitioner has contended that mere framing of issues on 24.08.2007 cannot be treated fatal to the application for amendment and has referred to the decision of the Hon'ble Supreme Court in the case of Baldev Singh & Ors. etc. Vs. Manohar Singh & Anr. etc. : 2007 (2) RLW 721. Learned 5 counsel submitted that the amendment relates to the events subsequent to filing of the suit and is intrinsically connected with the cause of action stated in the suit; that the petitioner can file a separate suit in relation to the amendment prayed for and on the relevant consideration of avoiding multiplicity of proceedings, the amendment ought to have been allowed. Learned counsel has also referred to the decision of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. : 2006 (1) WLC (SC) Civil 717. Learned counsel further submitted that no prejudice would be caused to the defendants by allowing the amendment and merely for delay, the amendment ought not to have been refused. Learned counsel has also referred to the decisions of the Hon'ble Supreme Court in the cases of Pankaja & Anr. Vs. Yellappa (D) by LRs & Ors. : 2004 (7) SRJ 305 and Sampat Kumar Vs. Ayyakannu & Anr. : 2002 WLC (SC) Civil 797. Learned counsel for the contesting respondents has opposed with the submissions that on 13.02.2006 the petitioner did file a petition alleging disobedience of the injunction issued and there was no reason that the amendment of pleadings could not have been prayed at that stage, if at all the plaintiff felt alteration of the situation at site during the pendency of the suit. Learned counsel emphasized 6 that the trial has commenced with framing of issues and then, it was for the petitioner to have taken specific averments in the application showing that the amendment could not have been prayed despite exercise of due diligence. Learned counsel pointed out that the averments as taken in the application are not correct on material particulars inasmuch as the case file had been received by the Trial Court by 05.01.2007 and in fact thereafter the plaintiff did file documents on 09.04.2007 and 27.04.2007 and then, issues were framed on 24.08.2007. Learned counsel submitted that the Trial Court has rightly rejected the application for amendment on relevant principles and the impugned order calls for no interference. Having given a thoughtful consideration to the rival submissions and having examined the material placed on record, this Court is of opinion that the impugned order cannot be sustained and the application for amendment deserves to be restored for re-consideration by the learned Trial Court. The expression “before commencement of trial” in the proviso to Rule 17 of Order VI of the Code of Civil Procedure is required to be understood in its context and cannot be applied in the manner as if immediately with signing of memo of issues, the trial is deemed to have commenced and as if the application filed for amendment of plaint immediately after framing of issues even before filing of affidavits of the 7 witnesses in evidence could also be treated to have been filed after commencement of trial. The Hon'ble Supreme Court has explained in the case of Baldev Singh (supra) thus: “17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the 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 hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, 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 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.” Even if in the technical sense the trial is deemed to have been commenced with framing of issues, the proviso to Rule 17 of Order VI of the Code of Civil Procedure is not of absolute bar against allowing amendment of pleadings. The provision is to the effect 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, 8 the party could not have raised the matter before commencement of the trial. Again, the requirement to consider if the party could not have raised the matter in spite of due diligence cannot be put to such a pedestal that refusal of amendment would be a rule and allowing would be an exception. The elements of “due diligence” are themselves required to be examined from a practical stand point and fundamentally keeping in view the fact that the rules of procedure are intended to facilitate and not to hinder the cause of justice. Profitable it shall be to recite the principles relating to the approach towards the rules of procedure as illuminated by the Hon'ble Supreme Court in the case of Sangram Singh Vs. Election Tribunal, Kotah & Anr. : AIR 1955 SC 425 followed and applied hitherto by the Courts that,- “16. Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. 17. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect 9 their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” In the present case, the learned Trial Court has merely referred to the date of framing of the issues, i.e., 24.08.2007; and has assumed the same to be fatal to the application for amendment because no cogent and convincing due diligence has been spelt out in the application. In the fact situation of the present case, it is difficult to countenance the proposition that the trial be deemed to have commenced because of framing of issues. The fact that the application for amendment was filed on the very next date after framing of issues and before hearing commenced by filing of any affidavit etc. cannot be lost sight of. The learned Trial Court has put much emphasis on the fact that the petitioner suggested reason for delay in the application that the concerning file was in the Appellate Court although the file had been received from the Appellate Court on 05.01.2007. Again, the matter ought to have been examined from a practical stand point and not for looking at the error here or mistake there on the part of the petitioner. 10 The averments sought to be incorporated relate to the incident of 12.02.2006. The suit was filed on 03.02.2006 and the petitioner alleged that after filing of the suit and violating the injunction order, the defendants encroached over the land in question and also took over possession of his hutment. The petitioner-plaintiff prayed for incorporation of such event, obviously being an event subsequent to the date of filing of the suit and stated that the evidence is yet to begin and that earlier the original case file was requisitioned by the learned Additional District Judge in Appeal No.08/2006 and after returning of the file, the application was being presented. It is noticed from the reply filed by the defendants that an application complaining of disobedience of injunction was in fact moved by the petitioner-plaintiff on 13.02.2006. It cannot be said in the overall circumstances of the case that the petitioner was not bona fide in seeking amendment or that the amendment was not necessary for complete and effectual determination of the real questions in controversy. It is noticed from the order sheets of the learned Trial court that from 26.08.2006 to 07.12.2006, the matter remained pending awaiting the case file from the Appellate Court. The matter was adjourned on 05.01.2007 though posted for admission/denial of the documents; on 12.02.2007, the defendants filed documents and the matter was adjourned for 11 admission/denial; on 12.03.2007, the learned Presiding Officer was on leave; on 09.04.2007 and 27.04.2007, the counsel for the plaintiff-petitioner filed the document; on 13.07.2007, the learned Presiding Officer was again on leave; then on 24.08.2007, counsel for the plaintiff filed documents and issues were framed and the matter was posted for plaintiff's evidence on 12.09.2007. On 12.09.2007 itself the present application for amendment was moved. All these facts and factors ought to have been taken into consideration while dealing with the application under Order VI Rule 17 of the Code of Civil Procedure. In the circumstances of the case, it appears appropriate to set aside the impugned order and to restore the application for amendment for re-consideration by the learned Trial Court in accordance with law. As a result of the aforesaid, this writ petition succeeds and is allowed to the extent indicated above; the impugned order dated 28.09.2007 (Annex. 5) is set aside and the application dated 12.09.2007 (Annex.3) stands restored for re-consideration and disposal in accordance with law by the learned Trial Court. In the circumstances of the case, the parties are left to bear their own costs of this writ petition. (DINESH MAHESHWARI), J. Mohan/