N. Pande & Anr Vs. Swami Keshavprakeshdasji N. & Ors  Insc 929 (8 December 2006)
Ar. Lakshmanan & Altamas Kabir
out of SLP (C) No. 12738/2006) Dr. AR.Lakshmanan, J.
above appeal is directed against the final judgment and order dated 09.03.2006
passed by the Gujarat High Court rejecting the Special Civil Application No.
1380 of 2006 discharging the Rule issued thereon and vacating interim relief
and rejecting the Civil Application No. 2213 of 2006 for interim relief. By the
said special civil application, the appellants challenged the order dated
24.01.2006 of the Second Additional Senior Judge, Nadiad rejecting their
application Exh. 95 in Special Civil Suit No. 156 of 2002 for leave to amend
their written statement on the ground that the appellants had not been able to
show in context or the proviso to Order VI Rule 17 of CPC that before the
commencement of the trial, the appellants should not have raised the matter in
spite of due diligence.
facts and events:
respondents filed Civil Suit No. 144 of 2002 in the Court of Civil Judge at Bhavnagar
against the present appellants, inter alia, seeking a declaration that in view
of the Resolution passed in the meeting held on 11.05.2002, Defendant No.1
(appellant No.1 herein) having ceased to be the Acharya of the Vadtal Gaadi, is
not entitled, by himself or through defendant No.2 (Present appellant No.2) or
supporters from enjoying any of the privileges or rights in respect of Vadtal Gaadi
and at any of the principal temples or Hari temples including the temples
falling under the Vadtal Gaadi at Vadtal, Gadhada and Junagadh as well as
within any of the Trust property and to further declare that the
appellants/defendants have no right to nominate their successors as Acharya of
the Gaadi. In the above-referred Suit, the appellant submitted an application
contending that the Court at Bhavnagar has
said application was dismissed by the Civil Court. The appellants preferred civil revision application in the
High Court challenging the jurisdiction of the Bhavnagar Court. To resolve the dispute between the parties, more
particularly between the Board and Acharya, Hon'ble Mr. Justice S.D.Dave
(retired) was appointed as Arbitrator/Conciliator, whose appointment was
accepted by all the parties. The High Court of Gujarat disposed of the Appeal
from Order No. 284 of 2002 and Civil Revision Application No. 650 of 2002 and
vacated the stay of the order dated 02.07.2002 of the trial Court.
the respondents herein withdrew the Civil Suit No. 144 of 2002 from Bhavnagar Court and the said suit was presented in
the Court of Civil Judge, Ahmedabad (Rural), where it was numbered as Special
Civil Suit No. 190 of 2002.
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
respondents/plaintiffs filed application for amendment of the plaint of Special
Civil Application No. 156 of 2002 and also produced further documents vide list
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:
dispute centers around the question as to whether the removal of Ajendraprasad Narejdraprasad
Pandey from the post of Acharya on the basis of a purported Resolution dated
11.5.2000 passed by a body calling itself as Satsang Mahasabha was valid.
Intimately linked to this issue is the legality of the action taken to istall Rakeshprasadji
Mahendraprasadji".." it is to be noted that legality of the
appointment of Rakeshprasadji as Acharya was questioned.
noted above, the basis revolves around the question of legality of the decision
taken to remove Ajendraprasadji and legality of appointment of Rakeshprasadji".."it
is needless to note that while deciding the issue of injunction, the Courts
have to consider three cumulative factors, viz. prima facie case, balance of
convenience and irreparable loss. Definite findings are to be given on these
aspects, on a prima facie basis." 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
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
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.
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
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
is inconsistency between the original written statement and the proposed
to Mr. S.B. Vakil, in the written statement there is a denial that defendant
No.1 wanted to handover his seat or office to defendant No.2, his son. The
insertion proposed in draft amendments is that defendant No.2 was appointed in
1984 as the successor of defendant No.1. The two read together mean that though
defendant No.1 had in 1984 appointed defendant No.2 as his successor, defendant
No.1 had no intention at present to handover the seat/office to defendant No.2.
VI Rule 17 CPC:
senior counsel submitted that the proviso enacts an embargo/bar against
granting leave to defend after the commencement of trial i.e. a stage of trial
rather than delay or procrastination on the part of the party seeking leave to
amend. In a given case, according to the learned senior counsel, the stage may
reach quietly without loss of time or delay. There is one express
qualification, namely, that the party seeking leave to amend could not have in
spite of due diligence raised the matter before the commencement of trial.
to him, Order VI Rule 17 sans the proviso has two important features, namely,
that the Court can impose such terms as may be just and that all such
amendments shall be made as may be necessary for determining the real questions
in controversy between the parties.
also invited our attention to Order VI Rule 17 prior to insertion of proviso
and also relied on B.K. Narayana Pillai vs. Parameswaran Pillai and Another,
(2000) 1 SCC 712 wherein this Court held that delay on its own, untouched by
fraud is not a ground for rejecting the application for amendment opposite
party to be compensated by costs.
placed reliance on Baldev Singh and Ors. vs. Manohar Singh and Another, (2006)
6 SCC 498 for the proposition that Courts are inclined to be more liberal in
allowing amendment of written statement than of plaint and, therefore,
amendment cannot be disallowed. According to him, Order VI Rule 17 including
the proviso is a procedural provision relating to amendment of plaint or
written statement and the limitations in respect thereof and, therefore, the
same should be interpreted to advance and not retard or defeat justice. He
relied on Salem Advocate Bar Association, T.N. vs. Union of India, (2005) 6 SCC
344 and 365 at para 26 (3 Judges) that the object of proviso is to prevent
frivolous applications which are filed to delay the trial.
reliance on Kailash vs. Nanhku and Others, (2005) 4 SCC 480, 495 para 28, Mr. Vakil
submitted that all the rules and procedures are hand maids of justice and the
language employed by the draftsmen of procedural law may be liberal or
stringent, but the fact remains that the object of prescribing procedure is to
advance the cause of justice.
further, learned counsel submitted unless compelled by express and specific
language of the statute, the provisions of C.P.C. or any other procedural
enactment ought not to be construed in a manner which would make the court
helpless to meet extraordinary situations in the ends of justice. If the
proviso is interpreted as providing an absolute bar or embargo, ends and
interests of justice are likely to suffer. O.6.R.17 would apply not only to
suit, but also to all proceedings in any court of civil jurisdiction by virtue
of scetion141 of the C.P.C.
question of amendment of pleadings can raise in a representative suit,
admiralty suit, matrimonial proceedings, proceedings involving fundamental
rights under the constitution of India and proceedings involving high Public Interest. If the embargo or bar
against amendment were to be absolute with sole qualification specified in the
proviso, considerable injustice would occur, based solely on the conduct of the
party seeking amendment, even to other persons. It would also lead to a strange
result that a party who could not have raised the matter with due diligence
before the commencement of trial is not hit by the embargo, but a party which
in fact raised the matter in the suit or proceeding, albeit not by way of written
statement, would be hit by the bar.
the proviso is required to be interpreted not mechanically or literally, but
purposively. Keeping the purposes of O.6.R.17 in tact, the proviso intends to
serve the purpose of keeping out matters from pleadings which could have with
due diligence been pleaded, but in fact not pleaded.
the purpose could not have been hyper-technical to bar amendment when matter
sought to be raised was in fact raised, though not in form of written
statement. Therefore for purposive interpretation, the proviso can be read as
that no application for amendment shall be allowed after the trial has
commenced unless the court comes to the conclusion that the party has raised or
in spite of due diligence could not have raised the matter in the suit or
proceeding before the commencement of trial".
proviso is directory and not mandatory and calls for substantial and not rigid
submitted that merely because a provision of law is couched in a negative
language implying mandatory character, the same is not without exceptions. The
Courts may keeping in view the entire context in which the provision came to be
enacted, held the same to be directory [As held in Kailash vs. Nankhu & Ors.
to him, the rigid interpretation of the proviso can lead to manifest injustice
and that the word 'shall' in the proviso should be interpreted to mean 'may'.
According to Mr. Vakil, in this case, there is substantial compliance with the
purpose underlying the proviso viz. that matter sought to be urged by proposed
amendments have been raised in the suit before the commencement of trial and
is/are not new matters raised for the first time by way of amendment of the
facts of the present case, it is not disputed that the contention in proposed
amendment were already raised in the proceeding at the earlier point of time as
well as before this Court. The civil application for production of documents as
additional evidence was also preferred in Appeal from Order No. 421 of 2002 and
the said civil application was dismissed by the High Court in a common judgment
in Appeal from Order No. 421/02 and it was observed that the present applicant
would be at liberty to raise all the contentions before the trial court in
accordance with law. Interpretation of the proviso should be purposive and not
literal or mechanical.
submitted that the observations of this Court that in ordinary litigation trial
commences when the issues are framed and the suit is placed for hearing is a
passing observation as held in Kailash vs. Nankhu & Ors. (supra).
same would not constitute any precedence as observed by this Court in Smt. Saiyada
Mossarrat vs. Hindustan Steel Ltd., Bhilai Steel Plant, Bhilai (M.P.) and Ors.,
AIR 1989 SC 406.
further, learned senior counsel submitted that filing of the affidavit in place
of examination-in-chief of a witness is akin to production of evidence under
Order VII Rules 14 and 17, Order XI Rule 14, Order XI, Rule 8 (affidavit
answering interrogators) and Order XII Rule 2, Order XI, Rule 22 makes it clear
that filing of interrogatories is not part of a trial. Filing of affidavit of
examination-in-chief does not involve any participation of the other party to
the suit or of the Court or its agency and it stands on the same footing as
documents to be filed by a party unilaterally. Filing of documents by a party
unilaterally is not recording of evidence, much less by Court. Such affidavit
may include irrelevant and inadmissible evidence. In fact the proviso to Order
18 Rule 5(1) expressly provides that the proof and admissibility of documents
filed with such affidavit shall be subject to the orders of the Court. Order 18
Rule 4(2) provides that the evidence (cross-examination and re-examination) of
the witness, whose evidence (examination-in-chief) by affidavit has been
furnished to the Court shall be taken either by the Court or the Commissioner
appointed by it. Order 18 Rule 4(2) mentions furnishing of evidence
(examination-in-chief) by affidavit and not recording of evidence by Court.
Therefore, filing of affidavit of examination-in-chief is not commencement of
trial and that trial would commence only when the Court rules on the proof and
admissibility of evidence in the affidavit of examination-in-chief of documents
produced or takes evidence by cross-examination of any witness in presence of
both the parties and the Court or its agency.
to him, the issues were framed on 28.09.2005 and application for re-casting
issues was rejected on 21.10.2005 and the respondent/plaintiffs filed affidavit
in examination-in-chief of plaintiffs' witness No.1 on 21.11.2005.
application Ex.95 for leave to amend the written statement was filed on
24.11.2005 and at this stage the Court had not relied on the proof or
admissibility of any document as contemplated by the proviso to Order 18 Rule 4
(1) or taken the evidence (cross examination) and re-examination of P.W. No. 1
as contemplated by Order 18 Rule 14 (2). Therefore, he submitted that the
application Ex.5 has not been filed after the commencement of the trial. It was
further submitted that the contention of the applicant that for the first time
that simple copy was made available only on 19.11.2005 was not denied by the
respondent and the present application Ex. 95 moved on 24.11.2005. Under the
circumstances as the applicant has already raised this point before the High
Court as well before this Court and as the High Court directed to raise the
points before the trial Court, the applicant was diligent in filing the
application Exh.95 and it cannot be said that there was no due diligence on the
part of the applicant.
his arguments, learned senior counsel appearing for the appellant submitted
proviso to Order VI Rule 17 of the CPC is directory and not mandatory;
The phrase commencement of trial in the said proviso is not synonymous with
framing of the issues. The trial does not commence unless and until the suit is
set down for recording of evidence.
of affidavit of the plaintiff's first witness by way of his
examination-in-chief is not recording of evidence;
the matter in the said proviso means raising the matter in any proceeding in
the suit and not necessarily in the amendment application;
appellants have raised the matter covered by the proposed amendment before the
commencement of trial;
appellants could not have in spite of due diligence raised the matter before
the commencement of trial.
Court would allow the proposed amendment under Article 142 of the Constitution
of India as necessary for doing complete justice between the parties.
Parasaran, learned senior counsel submitted that the amendment application
under Order VI Rule 17 is signed by the advocate purporting to represent
defendant Nos. 1 and 2 (the appellants). The signature is only by one counsel
who appears for defendant No. 1 and not by counsel for defendant No. 2. Below the
declaration there does not appear the signature of the parties. The affidavit
in support of the application is at page 581. In the copy served, it is signed
'illegible Deponent'. The contention before the trial court on behalf of the
plaintiff, inter alia, was as follows:
the present application filed by the defendant only with a view to delaying the
judicial process and it is filed without bonafide intention and therefore,
liable to be rejected. In para 15, it is stated that in the written reply
against the suit application, the defendant No. 1 was aware about the present
application containing amendment/changes. The defendant No. 2 cannot carry out
amendment in the affidavit filed by the defendant No. 1 in reply of suit
application. As per the charge sheet produced before the court, the defendant
No. 1 is absconding. Thus, in the present application, the prayer is not made
by the appropriate party and therefore, it is liable to be rejected." The
finding of the trial Court is at page 608 of Vol.III:- "As per the say of Shri
Patel the judicial proceedings of the present case started on 28.09.2005 and in
that connection present application was filed on 24.11.2005.
the defendant No. 1 should satisfy the Court that he was aware about the
present application. I have no reason to disbelieve the same." The above
submission assumes significance for the reason that first defendant is a
proclaimed offender. The proclamation has been issued under Section 82 of Cr.P.C.
for the alleged commission of certain offences. He has not yet surrendered to
the Court. In page 4 of the counter affidavit, it is stated as under:
petitioner No. 1 is still absconding and has been declared as a proclaimed
offender under Section 82 of the Criminal Procedure Code." However, he
appeared in the contempt proceedings on 03.10.2005 and 05.10.2005.
above facts, the submissions are as follows:
There is no valid application for amendment by the first defendant.
Defendant No.1 in the written statement in para 21 has averred as follows:
fact that the defendant No.1 Acharya wants to hand over the seat to his son is
false and imaginative." In the additional written statement which is not
subscribed to by defendant No.1, but subscribed to by defendant No.2, is as
fact, the appointment of defendant No.2 was made in the year 1984 as a proposed
Acharya of Vadtal seat' which was, at the relevant time, acclaimed and approved
by all the sects and since then defendant No.2 has been working as proposed Acharya"
Mr. K. Parasaran submitted that the appellants defendant Nos. 1 and 2 are not
entitled to set up such conflicting cases. It would embarrass the trial as the
respondent/plaintiff would be in a predicament as to which of the two cases he has
to meet and, therefore, he submitted that the amendment prayed for changes the
very complexion of the defence. It is further submitted that Defendant No.1 had
to appear in person in the contempt proceedings. He appeared before court and
received the sentence. However, he continues to be an absconder in the criminal
proceedings in which there is an allegation of alleged commission of offence.
He still continues to be an absconder. He does not, respect the rule of law and
a person who does not respect the rule of law cannot seek protection of rule of
law and pray for relief of amending written statement. In any event, this Court
under Article 136 may not exercise its discretionary jurisdiction in favour of
learned senior counsel submitted that the period during which written statement
can be filed are two. Similarly there are two periods during which amendment of
a pleading may be sought.
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.
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
Under Order VI Rule 17, a defendant may at any stage of the proceedings be
allowed to alter or amend the written statement.
Under proviso to Order 6 Rule 17, 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.
VI Rule 17 main part uses the phrase 'the court may at any stage". The
proviso uses the phrase "no application for amendment shall be
submission of the learned senior counsel is that when in the same section of an
Act the word may is used in one place and shall in another place, may will have
to be interpreted as may and shall will have to be interpreted as shall. In
such instances, may should not be interpreted as shall and shall should not be
interpreted as may. The following rulings were relied on by the learned counsel
for the above proposition:-
Commissioner vs. Burhanpur Tapti Mills (1964(7) SCR 484 at 488)
Kewalji Govani vs. State of Maharashtra
(1967(3) SCR 415 at 420)
T.R. Sahrma vs. Prithvi Singh and another (1976(2) SCR 716 at 721)
Rice Mills vs. State of U.P (1998 (6) SCC 590 at 594)
Chairman, Canara Bank vs. M.S. Jaera (AIR 1992 SC 1341 at 1346) He further
submitted that the proviso to order 6 rule 17 enacts an embargo, it vests
jurisdiction in the Court for permitting amendment of the pleadings even after
the trial has commenced. But this is subject to the condition that "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." If the word
'shall' in the proviso is construed as 'may' and not 'shall', the explanation
carved out of permitting the party to amend or alter the pleadings only if he
proves that in spite of due diligence he could not have raised the matter and
would be unnecessarily rendered redundant.
H. Desai, learned senior counsel for respondent No.2 also made elaborate
submissions and also relied on various rulings in support of his contentions.
He has also taken us through the pleadings and other records. He also invited
our attention to the proviso to Order VI Rule 17 as it existed before 1999.
6 Rule 17 "R.17. Amendment of pleadings. The Court may at any stage of
the proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments shall be made
as may be necessary for the purpose of determining the real questions in
controversy between the parties." The provision was omitted by the CIVIL
PROCEDURE CODE (AMENDMENT ACT) 1999
16 of the Amendment Act reads as follows:
Amendment of Order VI. In the First Schedule, in Order VI. ..
Rules 17 and 18 shall be omitted." The Provision as it exists now after the
CIVIL PROCEDURE CODE (AMENDMENT ACT), 2002
VI Rule 17.
Amendment of Pleadings. The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made as may be necessary for
the purpose of determining the real question in controversy between the
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, the party could not have raised the matter before the commencement
of trial." It is seen that before the amendment of Order 6 Rule 17 by the
Act 46 of 1999, the Court has taken a very wide view of the power to amend the
pleadings including even the plaint as could be seen from H.J. Leach vs. Jardine
Skinner, 1957 SCR 438 at 450 and Gurdial Singh vs. Raj Kumar Aneja, AIR 2002 SC
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.
to strike a balance the Legislature applied its mind and re-introduced Rule 17
by Act 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.
was placed on the judgment of this Court in Salem Bar Association case (supra).
In this case, this Court dealt with Order 6 Rule 17 at para 26. Chief Justice
Y.K. Sabharwal speaking for the Bench observed as under:
6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act, 46
of 1999, this provision was deleted. It has again been restored by Amendment
Act 22 of 2002 but with an added proviso to prevent application for amendment
being 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. The proviso, to some extent, curtails
absolute discretion to allow amendment at any stage. Now, if application is
filed after commencement of trial, it has to be shown that in spite of due
diligence, such amendment could not have been sought earlier.
object is to prevent frivolous applications which are filed to delay the trial.
There is no illegality in the provision." In the present case, the
position is that the suit was filed on 06.09.2002 and the written statement was
filed on 27.09.2002 and an application under Order VII Rule 11 was filed on
this context, we may also usefully refer to order passed by this Court on
13.05.2005 in a matter arising in the same suit. This Court directed that the
suit must be completed by 30.11.2005.
Desai also submitted that the issues were framed on 28.09.2005 and on
21.11.2005 the respondents filed an affidavit of examination in chief and it is
after the trial had commenced that appellant No.2 moved an application on
24.11.2005 seeking leave to amend the written statement.
to him, there is absence of due diligence on the part of the appellants.
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 No.1, various
dates of hearing and 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.
to be noted that the provisions of Order VI Rule 17 CPC have been substantially
amended by the CPC (Amendment) Act, 2002.
the proviso no application for amendment shall be allowed after the trial has
commenced, unless inspite of due diligence, the 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 VI Rule 17 was due to the
recommendation of the Law Commission since Order 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 Civil Procedure Code (Amendment} Act, 2002, provision
has been restored by recognizing 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.
following dates would show that the appellant is precluded by the proviso to
the Rule in question from seeking relief by asking for amendment of his
pleadings. Though several dates have been mentioned right from the date of
presentation of the plaint on 06.09.2002, we confine ourselves only to the
relevant dates from 18.10.2005.
Appellants defendants produced list of witnesses at Exh.63. 21.10.2005
Application of the plaintiffs at Exh. 59 and that of the defendants at Exh. 63
respectively filed, seeking amendment to the issues rejected by the trial
Court. Suit posted for recording of evidence on 24.10.2005. (The said order was
not challenged by the appellants} 24.10.2005 Respondents plaintiffs applied
to 26.10.2005 26.10.2005 Respondents plaintiffs applied for time.
Suit posted for recording of evidence of the respondents plaintiffs on
Time applied for by the respondents plaintiffs for production of examination
in chief of the respondents plaintiffs. Adjourned to 29.10.2005.
Adjourned at the request of the respondents plaintiffs to 17.11.2005.
Time taken to produce affidavit of the respondent No.1 plaintiff No.1. Adjourned
Adjourned to enable the respondents plaintiffs to produce examination in chief
on affidavit. Adjourned to 21.11.2005.
That in view of the amended provisions of the code, the deposition of
respondent No.1 i.e. plaintiff No.1 filed in Court on affidavit.
Recording of evidence has thus begun.
appellant No.1 defendant No.1 sought time to cross examine the plaintiff No.1.
appellant No.2 defendant No.2 filed application, inter alia directing the
plaintiffs to supply documents.
The appellant No.2 defendant No.2 filed an application for adjournment and
sought time, which was rejected by the trial Court.
The appellants defendants in the suit filed application Exh.95 for amendment of
the written statement.
is in the said application facts and grounds which were within the knowledge of
the appellants and which were raised in earlier proceedings now were being
raised; and also new and inconsistent pleas for the first time are sought to be
raised by the appellants.
Reply to the application for written statement was filed by the plaintiffs respondents
at Exh. 97. The appellants defendants requested for time for filing the
The appellants defendants filed rejoinder.
The hearing of the amendment application commenced and since the Court time was
over, the matter was adjourned to 09.12.2005.
That as the learned Presiding Judge of the trial Court was on leave, therefore,
the matter was adjourned to 14.12.2005.
The plaintiffs' Advocate made submission opposing the amendment application.
The matter was thereafter adjourned to 17.12.2005.
By an administrative order, the matter was transferred to another Court.
The learned Presiding Judge was on leave.
The defendants' Advocate argued the amendment application.
The plaintiffs made submissions, opposing the amendment application and for
rejoinder matter was adjourned to 09.01.2006.
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.
submissions in rejoinder by the appellants defendants in the application for
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.
13.3.2006, Shri K.P.Swami, respondent No.1 offered in the witness box for
cross-examination, however, he was not cross-examined and the application of
appellant No.1 for 15 days' adjournment was rejected. Hence, the right to
cross- examination was closed and the matter was adjourned to 16.3.2006.
16.3.2006, Deposition on affidavit of witness No.2 was filed as Ex. 135 i.e.
examination-in-chief and deposition of witness No.3, Patel Vasanthbhai was
filed in Court as Exh. 136. Application of the appellants for permission to
cross- examine witness No.1 and the right to cross examination was reopened by
the Court. Another application of the appellants i.e. Exh. 140, to grant stay
till 28th March, 2006 was rejected.
other different application were filed by the appellants (Exh.141,142 &
the appellants-respondents filed Civil Misc. application No. 43 of 2006 before
the District Judge, Nadiad under Section 24 of the C.P.C. Notice was issued but
no stay was granted.
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
17.3.2006, the appellants moved another application for stay of the proceedings
of the trial Court in transfer petition before the District Court. The District
Court granted ex parte stay of further proceedings and the matter was
27.3.2006, the respondents sought time to file reply which was filed on 15.4.2006.
28.03,2006, the appellants filed the transfer case before this Court under
Section 25 of the CPC.
29.04.2006, the appellants filed an application for revoking the stay of
after a number of adjournments, the evidence of 3rd witnesses, namely,
plaintiff No.1 as well as 2 and other witnesses on behalf
respondents/plaintiffs were completed.
opinion, the facts above-mentioned would also go to show that the appellants
are lacking in bona fide in filing this special leave petition before this
Court. It is also to be noticed that the High Court has recorded relevant
points in its elaborate judgment dated 05.10.2005 and have been dealt with
despite the opposition of the contesting respondents that these pleas were not
taken in the written statement. Under these circumstances, non-seeking of
appropriate amendment at appropriate stage in the manner envisaged by law has dis-
entitled the appellants to any relief. The amendment, in our view, also seeks
to introduce a totally new and inconsistent case.
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
argument was advanced by Mr. Parasaran that affidavit filed under Order 18 Rule
4 constitutes Examination- in-Chief. The marginal note of order 18 rule 4 reads
recording of evidence. The submission is that after the amendments made in 1999
and 2002 filing of an affidavit which is treated as examination in chief falls
within the amendment of phrase recording of evidence.
submitted that the date of settlement of issues is the date of commencement of
trial. [Kailash vs. Nankhu & Ors. (supra)] 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 the commencement of trial. We have already referred to
the dates and events very elaborately mentioned in the counter affidavit which
proves lack of due diligence on the part of the defendant Nos. 1 and 2
judgment of the High Court recording concession by counsel for the defendant
However, when one examines the facts of the case, and applies that the conduct
of the defendants goes to show that the exercise, namely, filing of application
Exh. 95, is directly in conflict with the object of the amendment, i.e. to
adopt a dilatory tactic. It is admitted by learned senior Advocate appearing on
behalf of the defendants that all the issues raised by way of proposed
amendment in the written statement were taken before this Court in the Appeal
from Order filed by the present defendant in the Civil Appeal filed before the
Apex Court, in the Appeal From Order in the second round before this Court and
again in a special leave petition filed before the Apex Court in the second
the defendants can not plead absence of knowledge after exercise of due
diligence. If this be the position the approach adopted by the trial Court can
not be stated to suffer from any infirmity so as to call for intervention at
the hands of this Court in a petition under Article 227 of the Constitution of
India." In the instant case, the appeal was filed in the second round on
09.10.2002 as could be seen from the dates and events mentioned in the counter
affidavit. Special Leave Petition in this Court was filed on 07.07.2004.
Additional written statement has been filed on 24.11.2005. Delay in filing the
additional written statement from 09.10.2002 to 24.11.2005. From 09.10.2002,
the matters sought to be introduced by defendant by way of additional written
statement was known to defendant/appellant. The application in respect of
additional written statement does not make an unequivocal averment as to due
diligence. The averment only reads as follows:- "Under the circumstances,
the facts which were submitted in the said Appeal from Order before the High Court
and the facts which are now being submitted in the present application could
not be submitted before this Court inspite of utmost care taken by the
defendants." The above averment, in our opinion, does not satisfy the
requirement of Order VI Rule 17 without giving the particulars which would
satisfy the requirement of law that the matters now sought to be introduced by
the amendment could not have been raised earlier in respect of due diligence.
As held by this Court in Kailash vs. Nankhu & Ors. (supra), the trial is
deemed to commence when the issues are settled and the case is set down for
recording of evidence.
also usefully refer to the judgment of this Court in Baldev Singh and Others
vs. Manohar Singh and Another, (2006) 9 SCC page 498 for the same proposition.
A perusal of the proposed amendment would show that it contains numerous
averments. So far as the averments in the proposed amendments are concerned, at
page 12 of the order in para 22, the appellants admit that all the issues
raised by way of proposed amendment in the written statement were taken before
this Court in the appeal from order filed by the present defendants in the
civil appeal filed before this Court and again in the special leave petition
filed subsequent. As rightly pointed out by learned senior counsel in any
section should not be so interpreted that part of it becomes otiose and
meaningless and very often a proviso itself is read as a substantive provision
it has to be given full effect.
sad and unfortunate that the Swamijis/Sanyasis/ members of the Sangh seem to
have paid their attention more to litigation than to the propagation of the
teachings of Swami Narayan. This situation should change. If the time, energy
and money spent on litigations and feuding had been spent for carrying on the
wishes of the founder of the institution, things would have reached very great
and amazing heights. We have, therefore, to voice our anxiety in this matter
and request that the system and administration should be fairly and properly
bridled, to prevent recurrence or repetition of feuds, which have already to
some extent shattered the reputation of this great majestic institution, which
has very vast resources and assets. Therefore, it is high time that proper
remedial measures are taken by all concerned.
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.