Vidyabai & Ors. Vs.
Padmalatha & ANR.  INSC 2163 (12 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7251 OF 2008 [Arising
out of SLP (Civil) No. 4740 of 2008] Vidyabai & Ors. ...Appellants Versus
Padmalatha & Anr. . ...Respondents
S.B. SINHA, J :
pleadings can be directed to be amended after the hearing of a case begins is
the question involved in this appeal which arises out of a judgment and order
dated 24.10.2007 passed by the High Court of Karnataka at Bangalore in Writ
Petition No. 14013 of 2007.
or about 16.12.2003, the plaintiffs - appellants filed a suit for specific
performance of an agreement of sale. According to the plaintiffs, one Prashant
Sooji (since deceased) executed an agreement of sale on 15.01.2001 in respect
of the suit property for a sum of Rs. 21 lakhs.
Respondents are the predecessors in interest of the said Prashant Sooji.
A written statement
was filed on 17.04.2004. An application for amendment of the written statement
was filed on 8.11.2006. In between the period 17.04.2004 and 8.11.2006,
however, indisputably issues were framed and parties filed their respective
affidavits by way of evidence. Dates had been fixed for cross-examination of
the said witnesses.
On or about
8.11.2006, an application had been filed under Order VI Rule 17 of the Code of
Civil Procedure (for short "the Code"), which was marked as IA 9 of
2006, seeking amendment to the written statement. On the same day, another
application, which was marked as IA 10 of 2006, had also been filed purported
to be under Order VIII Rule 1A of the Code for production of additional
3 By reason of an
order dated 18.07.2007, the learned Principal Civil Judge (Sr. Dn.) Hubli
dismissed the said applications holding that an entirely new case is sought to
be made out. The contention that they had no knowledge of the facts stated
therein and the respondents could not gather the materials and information
necessary for drafting proper written statement earlier was rejected, stating:
this contention cannot be accepted.
Because according to
proposed amendment sought by defendants at para 3(a) will is dated 18.3.94.
Therefore, naturally same
would have been in the knowledge of defendants right from the date and moreover
when they say that mother-in-law of defendant No. 1 is also necessary party and
she is also got right and interest in the suit property and that she is alive,
then through her defendants would have known about will right from beginning
and hence it cannot be said that defendant No. 1 required time to gather
information regarding will and further as details of will would have been
within the knowledge of defendants and/ or could have been given by
mother-in-law of defendant No. 1 i.e. Subhadrabai, then it was not necessary
for defendant No. 1 to have any social activities or have knowledge of business
to know about the will and hence proposed amendment regarding will cannot said
to be not within the knowledge of defendants at the time of filing of written
statement. Further regarding husband of defendant No. 1 being addicted to bad
vices like womanizing, drinking etc again this would have been within the
personal knowledge of defendant No. 1 as she is wife of 4 deceased Prashant
against whom whose allegations are made and this would have been in here
knowledge right from the beginning and to have said knowledge again she need
not have any knowledge of business or social activities and thus she also did
not require any time to gather that the information which are well within her
writ petition was filed thereagainst. By reason of the impugned judgment, the
High Court noticed the defence of the appellants in the following terms:
"There is no
retracting of statement made in written statement already filed by the
It, however, took
into consideration the fact that the said IAs were filed after the affidavit of
evidence had been filed by the plaintiffs - appellants. Despite noticing the
proviso appended to Order VI, Rule 17 of the Code, it was held;
Order 6 Rule 17, an amendment application can be filed at any stage of the
proceeding. Filing of affidavit by way of evidence itself is not a good ground
to reject the application filed seeking amendment of written statement. It is
not out of place to mention that the parties must 5 be allowed to plea. Such a
valuable right cannot be curtailed in the absence of good ground."
I.A. 10 was also
directed to be allowed.
S.K. Kulkarni, learned counsel appearing on behalf of the appellants, would
submit that in view of the proviso appended to Order VI Rule 17 of the Code,
the High Court committed a serious illegality in passing the impugned judgment.
Kiran Suri, learned counsel appearing on behalf of the respondents, on the
other hand, would contend that the proviso appended to Order VI Rule 17 of the
Code is not attracted in the instant case as by reason of the amendment to the
written statement, no new case has been made out.
It was submitted that
`leave' to amend the written statement was filed for the purpose of elaborating
the defence which had already been taken by the defendants and in that view of
the matter, this Court should not exercise its jurisdiction under Article 136
of the Constitution of India particularly when it is well-known that an
application for amendment of written statement should be dealt with liberally.
reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the
Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which
reads as under:
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, the
party could not have raised the matter before the commencement of trial."
It is couched in a
mandatory form. The court's jurisdiction to allow such an application is taken
away unless the conditions precedent therefor are satisfied, viz., it must come
to a conclusion that in spite of due diligence the parties could not have
raised the matter before the commencement of the trial.
the order passed by the learned Trial Judge, it is evident that the respondents
had not been able to fulfill the said pre-condition.
therefore, which arises for consideration is as to whether the trial had
commenced or not. In our opinion, it did. The date on which the issues are
framed is the date of first hearing. Provisions of the 7 Code of Civil
Procedure envisage taking of various steps at different stages of the
proceeding. Filing of an affidavit in lieu of examination in chief of the
witness, in our opinion, would amount to `commencement of proceeding'.
in a different context, a Three-Judge Bench of this Court in Union of India and
Others v. Major General Madan Lal Yadav (Retd.) [(1996) 4 SCC 127] took note of
the dictionary meaning of the terms "trial" and "commence"
19. It would,
therefore, be clear that trial means act of proving or judicial examination or
determination of the issues including its own jurisdiction or authority in
accordance with law or adjudging guilt or innocence of the accused including
all steps necessary thereto. The trial commences with the performance of the
first act or steps necessary or essential to proceed with the trial.
The High Court, as
noticed hereinbefore, opined that filing of an affidavit itself would not mean
that the trial has commenced.
XVIII, Rule 4(1) of the Code reads as under:
8 "4. Recording
of evidence (1) In every case, the examination-in-chief of a witness shall be
on affidavit and copies thereof shall be supplied to the opposite party by the
party who calls him for evidence:
Provided that where
documents are filed and the parties rely upon the documents, the proof and
admissibility of such documents which are filed along with affidavit shall be
subject to the orders of the Court."
aspect of the matter has been considered by this Court in Ameer Trading Corpn.
Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702] in the following
examination of a witness would include evidence-in-chief, cross-examination or
re- examination. Rule 4 of Order 18 speaks of examination-in-chief. The
unamended rule provided for the manner in which "evidence" is to be
taken. Such examination-in-chief of a witness in every case shall be on
aforementioned provision has been made to curtail the time taken by the court
in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code
of Civil Procedure provides for cross-examination and re-examination of a
witness which shall be taken by the court or the Commissioner appointed by
9 In Kailash v.
Nanhku [(2005) 4 SCC 480], this Court held:
"13. At this
point the question arises: when does the trial of an election petition commence
or what is the meaning to be assigned to the word "trial" in the
context of an election petition? In a civil suit, the trial begins when issues
are framed and the case is 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. As held by this Court in several
decided cases, this general rule is not applicable to the trial of election
petitions as in the case of election petitions, all the proceedings commencing
with the presentation of the election petition and up to the date of decision
therein are included within the meaning of the word "trial"."
We may notice that in
Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. and Others
[(2006) 12 SCC 1], this Court noticed the decision of this Court in Kailash
(supra) to hold:
"35. By Act 46
of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly
omitted so that an amendment itself was not permissible, although sometimes
effort was made to rely on Section 148 for extension of time for any purpose.
36. Ultimately, to
strike a balance the legislature applied its mind and reintroduced Rule 17 by
Act 10 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in
the first part which said that the court may at any stage permit amendment as
described therein. But it also had a total bar introduced by a proviso which
prevented any application for amendment to be allowed after the trial had
commenced unless the court came to the conclusion that in spite of due
diligence the party could not have raised the matter before the commencement of
the trial. It is this proviso which falls for consideration."
This Court also
noticed Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] to hold:
"41. We have
carefully considered the submissions made by the respective Senior Counsel
appearing for the respective parties. We have also carefully perused the
pleadings, annexures, various orders passed by the courts below, the High Court
and of this Court. In the counter-affidavit filed by Respondent 1, various
dates of hearing with reference to the proceedings taken before the Court has
been elaborately spelt out which in our opinion, would show that the appellant
is precluded by the proviso to rule in question from seeking relief by asking
for amendment of his pleadings.
42. It is to be noted
that the provisions of Order 6 Rule 17 CPC have been substantially amended by
the CPC (Amendment) Act, 2002.
43. Under the proviso
no application for amendment shall be allowed after the trial has commenced,
unless in spite of due diligence, the 11 matter could not be raised before the
commencement of trial. It is submitted, that after the trial of the case has
commenced, no application of pleading shall be allowed unless the above
requirement is satisfied. The amended Order 6 Rule 17 was due to the
recommendation of the Law Commission since Order (sic Rule) 17, as it existed
prior to the amendment, was invoked by parties interested in delaying the
trial. That to shorten the litigation and speed up disposal of suits, amendment
was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked
much controversy/hesitation all over the country and also leading to boycott of
courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002,
provision has been restored by recognising the power of the court to grant
amendment, however, with certain limitation which is contained in the new
proviso added to the rule. The details furnished below will go to show as to
how the facts of the present case show that the matters which are sought to be
raised by way of amendment by the appellants were well within their knowledge
on their court case, and manifests the absence of due diligence on the part of
the appellants disentitling them to relief."
The ratio in Kailash
(supra) was reiterated stating that the trial is deemed to commence when the
issues are settled and the case is set down for recording of evidence.
however, has been placed by Ms. Suri on Baldev Singh and Others v. Manohar
Singh and Another [(2006) 6 SCC 498], wherein it was opined:
"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
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 to the court to allow an amendment of the
written statement at any stage of the proceedings.
It is not an
authority for the proposition that the trial would not deemed to have commenced
on the date of first hearing. In that case, as 13 noticed hereinbefore, the
documents were yet to be filed and, therefore, it was held that the trial did
has also been placed by Ms. Suri on Pradeep Singhvi and Another v. Heero
Dhankani and Others [(2004) 13 SCC 432]. Therein, the suit was filed in the
year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code
of Civil Procedure had no application.
Reliance has also
been placed by Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K. Modi and
Others [(2006) 4 SCC 385]. No doubt, as has been held by this Court therein
that the court should allow amendments that would be necessary to determine the
real question of the controversy between the parties but the same indisputably
would be subject to the condition that no prejudice is caused to the other
is the primal duty of the court to decide as to whether such an amendment is
necessary to decide the real dispute between the parties. Only if such a
condition is fulfilled, the amendment is to be allowed. However, proviso
appended to Order VI, Rule 17 of the Code restricts the power of the court. It
puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a
case of this nature is limited.
Thus, unless the
jurisdictional fact, as envisaged therein, is found to be existing, the court
will have no jurisdiction at all to allow the amendment of the plaint.
Salem Advocate Bar Assn (supra), this Court has upheld the validity of the said
proviso. In any event, the constitutionality of the said provision is not in
question before us nor we in this appeal are required to go into the said
the judgment of the High Court does not satisfy the test of judicial review. It
has not been found that the learned Trial Judge exceeded its jurisdiction in
passing the order impugned before it. It has also not been found that any error
of law has been committed by it.
The High Court did
not deal with the contentions raised before it. It has not applied its mind on
the jurisdictional issue. The impugned judgment, therefore, cannot be
sustained, which is set aside accordingly.
we may observe that the question as to whether the documents should have been
called for or not by the court without there being the amended written
statement before it may be considered afresh.
appeal is allowed. However, in the facts and circumstances of the case, there
shall be no order as to costs.