Ajendraprasadji N. Pande & Anr vs Swami Keshavprakeshdasji N. & Ors

JUDGMENT (Arising out of SLP (C) No. 12738/2006) Dr. AR.Lakshmanan, J.

Concise facts and events:

The said suit was subsequently withdrawn and the plaint was again presented in the Court of Civil Judge at Nadiad which was numbered as Special Civil Suit No. 156 of 2002. The respondents/plaintiffs filed application for amendment of the plaint of Special Civil Application No. 156 of 2002 and also produced further documents vide list Ex. 25. The trial Court granted amendment of the plaint and further dismissed the application of the appellants objecting the jurisdiction of the Court. The appellants preferred appeal to the High Court challenging the above order. The High Court admitted the appeal and finally dismissed the application for stay and directed the appeal to be placed for final hearing. On 31.01.2003, the new Acharya was appointed by the Committee constituted pursuant to the Resolution dated 15.05.2002. The appellants preferred special leave petition No. 3351 of 2003 before this Court challenging the order of the High Court. This Court modified the order of the High Court and requested Chief Justice of the Gujarat High Court to ensure that hearing and disposal of the appeal takes place as expeditiously as possible as according to this Court an important question was required to be decided in the matter. The High Court dismissed the appeal from Order No. 421 of 2002. SLP No. 1538 (Civil Appeal No. 3380) was preferred by the appellant No.1 before this Court against the above referred judgment of the High Court. The said appeal was decided and the matter was remanded back to the High Court, inter alia, observed that:

The High Court dismissed the appeal from order No. 421 of 2002 holding that the injunction is running since long against the appellants and that points which have been raised can be raised before the trial Court.

The appellants moved application for amendment on 24.11.2005 in the written submissions in Special Civil Suit No. 156 of 2002, application Ex.95 before the trial Court. This Court dismissed the special leave petition No. 26472 of 2005 summarily and directed the trial Court to proceed with the matter preferably on day-to-day basis. Civil Judge dismissed the amendment application of the appellants on the ground that the trial has commenced and the appellants were not due diligent in preferring the amendment application. The appellants preferred Special Civil Application No. 1380 of 2006 in the High Court against the order passed by the trial Court below in Special Civil Suit No. 156 of 2002. The High Court dismissed the Special Civil Application No. 1380 of 2006, inter alia, on the ground that the jurisdiction under Article 226 of the Constitution of India is limited. Against the said judgment, the appellants preferred this appeal by way of Special Leave Petition. We heard Mr. S.B.Vakil, learned senior counsel for the appellants and Mr. K. Parasaran, learned senior counsel for R1 and Mr. Ashok H. Desai, learned senior counsel for R2. Mr. S.B.Vakil, learned senior counsel took us through the pleadings, various earlier proceedings/orders passed by the trial Court, High Court and of this Court and made elaborate submissions with reference to the pleadings and rulings of this Court.

(i) Under Order VIII Rule 1, the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.

(ii) Under proviso to Rule 1, the defendant who fails to file the written statement within the said period of thirty days, shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

(iii) Under Order VI Rule 17, a defendant may at any stage of the proceedings be allowed to alter or amend the written statement.

17.11.2005 Time taken to produce affidavit of the respondent No.1 plaintiff No.1. Adjourned to 19.11.2005.

22.11.2005 The appellant No.2 defendant No.2 filed an application for adjournment and sought time, which was rejected by the trial Court.

24.11.2005 The appellants defendants in the suit filed application Exh.95 for amendment of the written statement.

02.01.2006 The plaintiffs made submissions, opposing the amendment application and for rejoinder matter was adjourned to 09.01.2006.

06.01.2006 The Special Leave Petition No. 26472 of 2005 and 334 of 2006 filed by the appellants herein, challenging the judgment and order dated 05.12.2005 passed by the High Court in Appeal from Order No.421 of 2002, pursuant to the remand order of this Court was dismissed. Directions issued to the trial Court for expeditious hearing, preferably on day-to- day basis.

09.01.2006 submissions in rejoinder by the appellants defendants in the application for amendment. 24.01.2006 Amendment application of the appellants defendants to amend the written statement rejected by the trial Court by an order of the said date in view of the proviso to Order VI Rule 17 of C.P.C.

In view of the transfer application having been filed before the District Court, the appellants filed application before the trial Court again for stay of the proceedings but the prayer for stay was rejected and the matter was adjourned to 17.3.2006.

We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex. 95. No facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Exh. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondents original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed.

For the foregoing discussions, we are of the opinion that the appeal deserves to be dismissed and the appellants are not entitled to any relief. However, we direct the trial Court to proceed with the trial on priority forthwith and on day-to-day basis and dispose of the same on merits. No costs.