The court can grant leave to the plaintiff to file documents, not filed with the plaint: Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 13th August 2021 Decided on: 18th August 2021 W.P.(C) 8429 2021 & CM APPL. 26090 2021 SH ARMAN SINDHU Petitioner UNION OF INDIA & ORS. Through: Mr. Sanjay Sharawat Respondent Through: Mr. Farman Ali Senior Panel Counsel with Mr. Akshat Singh GP & Mr. Athar Raza Farooquei Advocates for R Mr. T.Singhdev Ms.Michelle B.Das Mr. Abhijit Chakravarty Ms. Sumangla Swami Advocates for R 2 NMC. Mr. Kirtiman Singh Advocate for R 3 NBE. HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT The petitioner is a doctor. He has completed the MBBS course from Rohilkhand Medical College Bareilly Uttar Pradesh and wishes to pursue a post graduate degree. The grievance with which he has approached the Court is that the respondents have fixed 30.09.2021 as the last date for completion of the compulsory one year rotational W.P.(C) 8429 2021 internship to enable a candidate to participate in the National Eligibility cum Entrance Test [hereinafter “NEET PG”] examination to be held on 11.09.2021. The petitioner will complete his internship only on 25.10.2021 and therefore seeks a direction upon the respondents to extend the date of completion of internship from 30.09.2021 to 31.10.2021. 2. Mr. Sanjay Sharawat learned counsel for the petitioner submitted that this year due to circumstances arising out of the Coronavirus pandemic the NEET PG examination which is normally held in the month of January has been postponed to 11.09.2021. According to him the schedule laid down by the respondents is entirely consistent with completion of the internship by 31.10.2021 or even later. He submits that such a modification would not disturb the proposed schedule and would enure to the benefit of several candidates whose internship will not be completed by 30.09.2021 but soon after. In support of this contention Mr. Sharawat drew my attention to the Medical Council of India Postgraduate Medical Education Regulations 2000 wherein the schedule for completion of the admission process for post graduate medical courses has been laid down. This schedule provides that the entrance examination be conducted by 10th January and result be declared by the end of January. Counselling is to be conducted in three rounds between 12th March and 8th May with 31st May being the last date of joining. In conjunction with this schedule Mr. Sharawat submitted that the last date for completion of internship for the purposes of W.P.(C) 8429 2021 31.03.2021. eligibility for writing the NEET PG examination is fixed as In the wake of the Coronavirus pandemic by a notification dated 07.04.2020 the Medical Council of India now the National Medical Commission[hereinafter “NMC”] extended the last date for completion of internship to 30.04.2021. By a notice dated 23.02.2021 the National Board of Examinations[respondent no 3 herein] fixed the NEET PG examination for 18.04.2021 and the results were to be declared on 31.05.2021. At this time the NBE also issued an examination information bulletin in which it was provided that the last date for completion of internship was extended to 30.06.2021. Due to the intervening outbreak of the second wave of COVID 19 pandemic in the country the examination was not held on 18.04.2021. The Ministry of Health and Family Welfare Government of India issued a letter dated 03.05.2021 to the State Governments stating that the NEET PG examination was being postponed and would not be held prior to 31.08.2021. The aforesaid letter also called upon the States to utilize prospective NEET PG candidates in the COVID 19 workforce. According to the petitioner he has also been serving in COVID 19 related duties since April 2021. The NEET PG examination has now been scheduled for 11.09.2021 by a notice dated 13.07.2021 issued by the NBE. By a further notice dated 06.08.2021 the NBE has decided to open a second phase for registration of candidates between 16.08.2021 to W.P.(C) 8429 2021 to 30.09.2021. 20.08.2021 and to extend the cut off date for completion of internship It is in these circumstances that the petitioner has filed this writ petition for the following reliefs: to extend “[a] Issue a writ of mandamus and direct the date of completion of internship from 30.09.2021 to 31.10.2021 for the purpose of NEET PG 2021 Examination scheduled to take place on 11.09.2021 and b] Consequently issue a writ of mandamus and direct the Respondents to permit the Petitioner to submit his application to enable him to appear in the NEET PG 2021 Examination scheduled to take place on 11.09.2021 with all consequential benefits depending upon outcome of result of said exam and c] Pass any other and further order(s) as may be deemed fit.” 9. Mr. Farman Ali Mr. T. Singhdev and Mr. Kirtiman Singh learned counsel entered appearance on advance notice on behalf of the Union of India the NMC and the NBE respectively. 10. Mr. Singhdev and Mr. Singh submitted that the writ court ought not to interfere with the cut off date fixed by the examination conducting authorities which has been fixed keeping all the relevant factors in mind. They submit that the petitioner would in the normal course not have been eligible to appear in the NEET PG examination in 2021 on account of the fact that he would not have completed the internship within the normal eligibility date of 31.03.2021. As far as the extended schedule for this year is concerned his internship has been delayed due to the fact as stated in the writ petition that he was W.P.(C) 8429 2021 unable to take one of his four final year papers in March 2020 for shortage of attendance. Learned counsel point out that if he had taken all the papers in March 2020 his internship would have concluded before the stipulated date of 30.09.2021 and he would have been permitted to take the NEET PG 2021. 11. Mr. Singh further submitted that the very issue raised in this writ petition has been decided by the Madras High Court in GA Vishwajeet vs. Union of India and Others1 against the petitioner. Mr. Singh also cited the judgment of a coordinate bench of this Court in Association of MD Physicians vs. National Board of Examinations & Ors.2 in support of his contention that these are matters beyond the jurisdiction of the writ court and ought to be left to the discretion of the examination conducting authority. He submitted relying upon the Supreme Court judgment in Hirandra Kumar vs. High Court of Judicature at Allahabad and Anr.3 that some apparent arbitrariness in the cut off date is inherent to the fixation of cut offs and does not ordinarily render the date fixed unconstitutional or ultra vires unless it is shown to be manifestly unreasonable. 12. Mr. Singhdev submitted that the issue raised in the present petition has been considered by this Court albeit for a prior year in the decision of a learned Single Judge in Ojasvini Agrawal vs. Union of India4 which was also affirmed by the Division Bench5. Against the 1 W.P.16526 2021 decided on 09.08.2021 2 W.P.5908 2021 decided on 11.06.2021 3 2019 SCC OnLine SC 2541343 2018 decided on 29.01.2019] 4 W.P.3054 2020 decided on 13.05.2020 5 Vide judgment dated 27.05.2020 in LPA 147 2020 W.P.(C) 8429 2021 aforesaid decision the Supreme Court declined Special Leave to Appeal6. 13. Mr. Sharawat sought to counter these judgments by reference to two authorities one of the Supreme Court and one of the Division Bench of the Himachal Pradesh High Court. The judgment of the Supreme Court in M s. Shiv Shankar Dal Mills and Others vs. State of Haryana and Others7 although the circumstances in which it arose were admittedly different was cited to remind this Court of the observation of Krishna Iyer J. in paragraph 4: “…..Situations without precedent demand remedies without precedent.” 14. The Division Bench of the Himachal Pradesh High Court in Raju Thakur vs. State Election Commission and Others8 dealt with an order postponing the elections to the Shimla Municipal Corporation. Paragraph 57 of the judgment was placed by Mr. Sharawat: “57. It is more than settled that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. Situations without precedent demand remedies without precedent. The extra ordinary situation may call for extra ordinary response and situational demands.” 15. On the strength of these authorities Mr. Sharawat urged that in the context of the revised schedule for the examination notified by the respondents themselves the Court’s powers are sufficient to direct an extension of the cut off date. He submitted that the present case in fact reveals such arbitrariness in the fixation of the cut off date as 6 Order dated 22.06.2020 in Special Leave to AppealNo. 7549 2020 72 SCC 437 8 AIR 2017369W.P.(C) 8429 2021 would justify the interference of the writ court even in terms of the judgments cited by the respondents. According to Mr. Sharawat the extension of the eligibility date for completion of internship from 30.09.2021 to 31.10.2021 would prejudice no one and would not require any modification of the schedule provided. He submitted that the judgment in Ojasvini Agrawal9 has been rendered in the context of the regulatory schedule under the PGMER which in any event has been given a go by. As far as the judgment of the Madras High Court in GA Vishwajeet10 is concerned Mr. Sharawat urged that the contentions canvased in this Court do not appear to have been placed before the Madras High Court. 16. Having heard learned counsels for the parties despite some sympathy for the predicament in which the petitioner finds himself I am of the view that relief cannot be granted in this writ petition. The respondents have already extended the cut off date for completion of the internship keeping in mind the COVID 19 pandemic and consequent delay in holding the NEET PG examination. The writ court cannot take upon itself the task of administering the examination and fixation of the schedule. As held in the decisions cited by the respondents there is a degree of inherent randomness in the fixation of a cut off date which may in a given case cause hardship to a candidate or a group of candidates. That per se does not lead to the conclusion that the fixation itself is arbitrary. The relief sought by the petitioner would lead to an uncertain and cumbersome situation as 9 Supra10 SupraW.P.(C) 8429 2021 there will always be some candidates who miss the cut off by a whisker. If this Court were to accede to the petitioner’s contentions the grievances of those whose internships will be completed soon after 31.10.2021 would then come to the fore. The impermissibility of such interference with academic assessments has been emphasised in the Division Bench decisions of this Court in Dr. Rajat Duhan and Others vs. All India Institute of Medical Sciences and Others11 and National Board of Examinations vs. Dr. Rajani Sinha and Others12. 17. The judgment of the coordinate bench in Ojasvini Agrawal13 dealt with a similar situation with regard to the NEET PG 2020 wherein it was held as follows: “22. I may refer with advantage in this context to the judgement of the Supreme Court in Dolly Chhanda v. Chairman JEE1 in which a bench of three Hon‟ble Judges of the Supreme Court underscored the distinction between possession of requisite qualifications and submission of proof of possession of It has been to secure admission. qualifications categorically held in the said decision that in regard to possession of requisite eligibility qualifications by the cut off date fixed in that regard there can be no relaxation. Once however a candidate possesses the requisite qualifications by the stipulated cut off date depending on individual facts and circumstances it might be possible to relax the date by which the candidate is to submit proof of possession of such qualification. In the present case 31st March 2020 stands expressly stipulated as the cut off date by which any candidate who seeks to obtain admission to a PG medical course consequent to the NEET PG 2020 11 2019 SCC OnLine Del 11437paragraph 8 12 2021 SCC OnLine Del 2719paragraph 14 13 SupraW.P.(C) 8429 2021 examination is required to complete her or his compulsory internship. There can therefore be no relaxation in this regard least of all by a writ court. 25. The alternative prayer B in the writ petition which seeks extension of the period of completion of one year internship by one month to 30th April 2020 qua the petitioner “so that the petitioner was able to gain admission this year” too requires merely to be urged to be rejected. The duty of this Court while exercising jurisdiction under Article 226 of the Constitution of India is to administer the law without fear or favour and not to ensure that the petitioners before it secure the reliefs they seek irrespective of the law. Ubi jus as the time worn adage goes ibi remedium. The right has therefore to precede the remedy. Sans an enforceable legal right there can be no remedy in law. The provisions in the Bulletin issued by the NBE governing the NEET PG 2020 Examination as extracted hereinabove reveal repeated emphasis to the extent that the Bulletin highlights the said clauses on the cut off date of 31st March 2020 for completion of compulsory one year internship by MBBS candidates. This Court in exercise of its writ jurisdiction does not deem it appropriate to tinker therewith or to direct that in the case of the petitioner the said date should not be treated as sacrosanct. Charity to one in the teeth of the law results in injustice to the multitude.”14 18. The Division Bench affirmed the judgment of the learned Single Judge with the following observations: “13. Completion of internship before 31st March 2020 is therefore an essential qualification. There is no power to relax the essential qualification. This Court while exercising the jurisdiction under Article 226 of the the essential Constitution of India cannot alter 14 Emphasis supplied. W.P.(C) 8429 2021 qualifications prescribed in the Information Bulletin. The argument advanced by Mr.Kachwaha learned counsel that students who have completed their internship before commencement of the PG course should also be admitted cannot be accepted. One more aspect which has to be borne in mind is that several candidates who did not complete their internship before 31st March 2020 would not have participated in the counseling process for the reason that they were aware of the fact that they did not possess the essential qualifications as prescribed. Any permission granted to the appellant to secure admission in the PG course will amount to changing the rules of the game midstream which is impermissible and cannot be done by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. 14. It is also relevant to note that the appellant has not chosen to challenge the time limits prescribed and fixed in the Information Bulletin. In any event she has not made out any case to demonstrate that the procedure prescribed in the Information Bulletin is violative of Article 14 of the Constitution of India and suffers from the vice of arbitrariness. Knowing that she was ineligible to get admission in terms of the relevant Rules and Regulations the appellant still proceeded to take part in the counseling conducted for seats reserved under All India quota and also in the counselling conducted by the State of Uttar Pradesh for filling up the seats which are reserved for State quota.”15 As noted above the Supreme Court declined to interfere with the said judgment of the Division Bench.16 19. Although Mr. Sharawat is right in saying that the judgment in Ojasvini Agrawal17 was rendered in the context of the regulatory regime and not COVID 19 induced extensions the observations of the 15 Emphasis supplied. 16 Supra17 SupraW.P.(C) 8429 2021 Court regarding the limitations on exercise of the writ jurisdiction would equally apply. In this context Mr. Sharawat reminded the Court of the plentitude of its powers under Article 226 of the Constitution. However there are well developed limitations within which the writ court exercises its discretionary jurisdiction. Mr. Sharawat’s reliance upon the observations of Krishna Iyer J. in M s. Shiv Shankar Dal Mills18 and the Himachal Pradesh High Court in Raju Thakur19 cannot come to his aid. While the Coronavirus pandemic may well be without precedent the question of whether the writ court can interfere with cut off dates in academic matters is not. Indeed the very question raised in the present petition has been considered and answered in the binding decision of the Division Bench in Ojasvini Agrawal20. In this context I may also refer to the judgment of the Madras High Court in GA Vishwajeet21 which deals with the very same examination which is in issue in this petition viz. NEET PG 2021. The petitioner before the Madras High Court will complete his internship by 04.10.2021 he misses the deadline by five days as compared to 25 days for the present petitioner. The Court noted as follows: “5. The learned counsel for the petitioner submitted that the pandemic situation has brought about a very extra ordinary scenario where the students are already suffering and there is a delay in the completion of the internship for the petitioner only due to this situation. The learned counsel submitted that the respondents must take 18 Supra19 Supra20 Supra21 SupraW.P.(C) 8429 2021 into consideration the suffering of the students and one more extension can be given for the completion of the CRRI Internship. The learned counsel submitted that even though the petitioner cannot claim this as a matter of right it is always open to the respondents to take into consideration the present situation and sympathetically consider the request made by the petitioner and similarly placed students. 6. This Court is sympathetic to the passionate claim that has been made by the petitioner seeking for the extension of the cut off date for completion of the internship. However sympathy by itself cannot be a ground for issuing any positive directions more particularly when it comes to education. The cut off dates are not fixed based on individual claims made and the respondents will have to take into consideration a wide range of options and take a decision. The respondents had infact taken into consideration the pandemic situation and had extended the time for the completion of the internship from 30.06.2021 up to 30.09.2021. The learned counsel appearing on behalf of the 2nd respondent has made it clear that there is no further scope for extension of the cut off date beyond 30.09.2021. 7. It will be very difficult for the Courts to interfere into every decision that is taken on the Administrative side and fixing of a cut off date is completely out of the purview of a writ petition filed under article 226 of Constitution of India. The petitioner is trying to project his individual grievance and is seeking for the extension of the cut off date. However if such a claim is entertained it will open flood gates and every student who was not able to complete the internship on or before 30.09.2021 will approach this Court seeking for a similar direction and it will only end up in chaos. Such directions issued by this Court will directly impact the further process of the respondents 2 and 3 in completing the admission for the PG courses. Therefore even though this Court has considered the claim made by the W.P.(C) 8429 2021 petitioner sympathetically it will be too difficult for this Court to direct the respondents to extend the cut off date. 8. In view of the above discussion this Court is not in a position to grant the relief as sought for by the petitioner and accordingly this writ petition stands dismissed. No costs. Consequently the connected miscellaneous petitions are closed.” I am in respectful agreement with the view taken by the Madras High Court which is also consistent with the binding precedents of 22. For these reasons the writ petition alongwith the pending application is dismissed. There will be no orders as to costs. this Court. PRATEEK JALAN J. AUGUST 18 2021 „pv‟ W.P.(C) 8429 2021 

Summary: The provisions of Order XI Rule 1(1)(c)(ii) CPC, permits the plaintiff to file documents in answer to the case set up by the defendant subsequent to the filing of the plaint. This was held by Hon’ble Justice Asha Menon in the case of Valo Automotive Pvt. Ltd. Vs. Sprint Cars Pvt. Ltd. and Ors. on the 18th of August, 2021 before the Hon’ble High Court of Delhi. The brief facts of the case are, The petitioner/plaintiff had filed a suit bearing CS No.1299/2018 against Sprint Cars Pvt. Ltd., for the recovery of Rs.31,65,271/- along with the interest. The petitioner claims that certain documents and statement of accounts were already placed by it on the record. Summons were issued to the respondents/defendants and they filed their first appearance on 18th October, 2018. They took time to file written statement. In the meantime, on 27th November, 2018, the court referred the matter to the Mediation Centre, Saket Court, for attempting an amicable settlement between the parties, which however, failed. The suit then continued in the court and on 21st December, 2018, the respondents filed their written statement. The case was then fixed for filing of replication. On 11th March, 2019, the petitioner filed the compilation of rejoinder affidavit to the written statement along with an application under Order XII Rule 6 read with Order VIII Rules 3, 4 &amp; 5 CPC for judgment on admission. An application under Order VI Rule 17 CPC was also filed for amending the plaint. The application under Order VII Rule 14 CPC was filed for bringing on record documents, such as, further invoices, to substantiate the amendment sought, which was for enhancing the suit claim from Rs.31,65,271/- to Rs.39,03,396/-. There was no change brought to the remaining part of the plaint. By the impugned order, the learned Trial Court rejected the application for amendment observing that since the amendment would be resulting in allowing the claim, which was relinquished by the plaintiff at the time of filing of the suit, it could not be allowed. The present petition has been filed being aggrieved by the order dated 15th March, 2021, whereby, its applications under Order VI Rule 17 and under Order VII Rule 14 of Code of Civil Procedure, 1908 for amendment of the plaint and for placing on record the additional documents respectively, were dismissed. The counsel for the petitioner submitted that, the learned Trial Court had misdirected itself in holding that the amendments were belated and that the petitioner had given up the claim that it was belatedly seeking to incorporate in the plaint. The learned counsel submitted that there was no material change to the nature of the suit, as the only amendment that was sought, was the enhancement of the total sum of the claim from Rs.31,65,271/- to Rs.39,03,396/-. It was further submitted that the amendment had been sought at the earliest, as time had been spent, not due to the fault of the petitioner, but, as the matter had been pending before the Mediation Centre. The counsel for the respondents submitted that, the orders of the learned District Judge, Commercial Court, was in accordance with law and no ground was made out for allowing the amendment. It was submitted that the suit had originally been filed for Rs.31,65,271/-. The bills and invoices now sought to be placed on the file were available to the petitioner even at the time of filing of the suit. It was submitted that having all the documents with them, the petitioner nevertheless, chose to file the suit for a lesser amount. In these circumstances, the learned Commercial Court, had rightly concluded that by filing a suit for a lesser amount, the petitioner had given up the claim for the remaining amount. 
The learned judge heard the submissions of both the parties and observed that, Order VI Rule 17 CPC permits the court to consider and allow amendments to pleadings, as may be necessary, for the purpose of determining the real question in controversy between the parties. Where the application is moved after the trial has commenced, even then the court may allow amendments, on being satisfied that the averments sought to be introduced by way of amendments were not included in the pleadings at the initial stage despite due diligence.  The petition was allowed by holding, “In the present case, not only has the trial yet to commence, the suit is at a very preliminary stage. The learned Commercial Court had granted to the petitioner/plaintiff an opportunity to file the replication. That is when the liberty to file documents and amendments were sought. Moreover, the amendment is not seeking to change the nature of the suit, which remains one for recovery. The petitioner/plaintiff cannot be denied an opportunity to meet the claim of the respondents/defendants raised in the written statement that there were no invoices or bills raised. In order to allow the court to determine fully the dispute between the parties, it is the considered view of this Court that the amendments are necessary. Effective adjudication of the controversy and avoidance of multiplicity of judicial proceedings are factors that have to be considered. The learned Trial Court has referred to the provisions of Order XI Rule 5 CPC, as applicable to the commercial disputes. But, it has overlooked the provisions of Order XI Rule 1(1)(c)(ii) CPC, which permits the plaintiff to file documents in answer to the case set up by the defendant subsequent to the filing of the plaint. The precise case of the petitioner/plaintiff is that when the respondents/respondents denied that invoices were ever raised, the application was moved to bring the invoices on record. Under Order XI Rule 5 CPC, the court can grant leave to the plaintiff to file documents, not filed with the plaint. The learned Commercial Court erred in over-looking these provisions of the CPC.”
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