REPORTABLE

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

J U D G M E N T

S.B. SINHA, J :

1. Leave granted.

2. Whether 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.

3. On 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.

Defendants – 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 documents.

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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:

“…However, 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

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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 own

knowledge…”

4. A 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 defendants”.

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;

“…According to 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

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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.

5. Mr. 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.

6. Ms. 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.

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7. By 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:

“Provided 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 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.

8. From the order passed by the learned Trial Judge, it is evident that the

respondents had not been able to fulfill the said pre-condition.

The question, 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

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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’.

9. Although 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” to opine:

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.

10. Order XVIII, Rule 4(1) of the Code reads as under:

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“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.”

11. This 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 terms:

“15. The 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 affidavit.

16. The 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 it.”

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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

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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

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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.

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12. Reliance, 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

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noticed hereinbefore, the documents were yet to be filed and, therefore, it

was held that the trial did not commence.

13.Reliance 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 side.

14. It 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.

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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.

15. In 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 question.

16.Furthermore, 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.

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17. However, 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.

18.The appeal is allowed. However, in the facts and circumstances of

the case, there shall be no order as to costs.

………………………….J.

[S.B. Sinha]

..…………………………J.

[Cyriac Joseph]

New Delhi;

December 12, 2008

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