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CASE NO.: Appeal (civil)  5667 of 2006

PETITIONER: Ajendraprasadji N. Pande & Anr

RESPONDENT: Swami Keshavprakeshdasji N. & Ors.

DATE OF JUDGMENT: 08/12/2006

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT: JUDGMENT (Arising out of SLP (C) No. 12738/2006)

Dr. AR.Lakshmanan, J. Leave granted.        The 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.  Concise facts and events: The 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 no jurisdiction.   The 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.   Thereupon, 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.  

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The said suit was subsequently withdrawn and the plaint was  again presented in the Court of Civil Judge at Nadiad which  was numbered as Special Civil Suit No. 156 of 2002.  The respondents/plaintiffs filed application for  amendment of the plaint of Special Civil Application No. 156 of  2002 and also produced further documents vide list Ex. 25.   The trial Court granted amendment of the plaint and further  dismissed the application of the appellants objecting the  jurisdiction of the Court.  The appellants preferred appeal to  the High Court challenging the above order.  The High Court  admitted the appeal and finally dismissed the application for  stay and directed the appeal to be placed for final hearing.  On  31.01.2003, the new Acharya was appointed by the Committee  constituted pursuant to the Resolution dated 15.05.2002.  The  appellants preferred special leave petition No. 3351 of 2003  before this Court challenging the order of the High Court.  This  Court modified the order of the High Court and requested  Chief Justice of the Gujarat High Court to ensure that hearing  and disposal of the appeal takes place as expeditiously as  possible as according to this Court an important question was  required to be decided in the matter.  The High Court  dismissed the appeal from Order No. 421 of 2002.  SLP No.  1538 (Civil Appeal No. 3380) was preferred by the appellant  No.1 before this Court against the above referred judgment of  the High Court.  The said appeal was decided and the matter  was remanded back to the High Court, inter alia, observed  that:         "the 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"\005\005.." it is to be noted that legality of the  appointment of Rakeshprasadji as Acharya was questioned.   So, as noted above, the basis revolves around the question of  legality of the decision taken to remove Ajendraprasadji and  legality of appointment of Rakeshprasadji"\005\005.."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 trial Court.   The appellants moved application for amendment on  24.11.2005 in the written submissions in Special Civil Suit  No. 156 of 2002, application Ex.95 before the trial Court.  This  Court dismissed the special leave petition No. 26472 of 2005  summarily and directed the trial Court to proceed with the  matter preferably on day-to-day basis.  Civil Judge dismissed  the amendment application of the appellants on the ground  that the trial has commenced and the appellants were not due  diligent in preferring the amendment application.  The  appellants preferred Special Civil Application No. 1380 of 2006  in the High Court against the order passed by the trial Court  below in Special Civil Suit No. 156 of 2002.  The High Court dismissed the Special Civil Application  No. 1380 of 2006, inter alia, on the ground that the  jurisdiction under Article 226 of the Constitution of India is  limited.  Against the said judgment, the appellants preferred  this appeal by way of Special Leave Petition.

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We heard Mr. S.B.Vakil, learned senior counsel for the  appellants and Mr. K. Parasaran, learned senior counsel for  R1 and Mr. Ashok H. Desai, learned senior counsel for R2.  Mr. S.B.Vakil, learned senior counsel took us through  the pleadings, various earlier proceedings/orders passed by  the trial Court, High Court and of this Court and made  elaborate submissions with reference to the pleadings and  rulings of this Court. There is inconsistency between the original written  statement and the proposed amendments: According 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.  Order VI Rule 17 CPC:         Learned 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.   According 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.  He 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.  He 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.  Placing 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.   Arguing 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,

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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.  The 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.  Therefore, 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.  However, 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 follows: "Provided 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".

The proviso is directory and not mandatory and calls for  substantial and not rigid compliance:  Mr. Vakil 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. (supra)].  According 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 written  statement. In 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. Commencement of trial: It was 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).   The same would not constitute any precedence as observed by

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this Court in Smt. Saiyada Mossarrat vs. Hindustan Steel  Ltd., Bhilai Steel Plant, Bhilai (M.P.) and Ors., AIR 1989  SC 406.          Explaining 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. According 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.   The 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.  Concluding his arguments, learned senior counsel  appearing for the appellant submitted that: (a)     the proviso to Order VI Rule 17 of the CPC is  directory and not mandatory; (b)     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.   Filing of affidavit of the plaintiff’s first witness by  way of his examination-in-chief is not recording of  evidence; (c)     raising the matter in the said proviso means raising  the matter in any proceeding in the suit and not

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necessarily in the amendment application; (d)     the appellants have raised the matter covered by the  proposed amendment before the commencement of  trial; (e)     the appellants could not have in spite of due  diligence raised the matter before the  commencement of trial. (f)     this Court would allow the proposed amendment  under Article 142 of the Constitution of India as  necessary for doing complete justice between the  parties.   Mr. K. 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 \026 Deponent’.  The contention before the trial court on  behalf of the plaintiff, inter alia, was as follows: "\005\005\005.Thus, 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.   Therefore, 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: "The 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.         On the above facts, the submissions are as follows:         (a) There is no valid application for amendment by the  first defendant.         (b) Defendant No.1 in the written statement in para 21  has averred as follows:         "the 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

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defendant No.2, is as follows:         "\005In 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\005"  

               Mr. K. Parasaran submitted that the appellants \026  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  such party.                 The 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.         (i) Under Order VIII Rule 1, the defendant shall, within thirty  days from the date of service of summons on him, present a  written statement of his defence.        (ii) Under proviso to Rule 1, the defendant who fails to file the  written statement within the said period of thirty days, shall  be allowed to file the same on such other day, as may be  specified by the Court, for reasons to be recorded in writing,  but which shall not be later than ninety days from the date of  service of summons.        (iii) Under Order VI Rule 17, a defendant may at any stage of  the proceedings be allowed to alter or amend the written  statement. (iv) 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. Order 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 allowed". The 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:- 1.    Labour Commissioner vs. Burhanpur Tapti Mills (1964(7) SCR  484 at 488) 2.      Jamatraj Kewalji Govani vs. State of Maharashtra (1967(3) SCR  415 at 420) 3.      T.R. Sahrma vs. Prithvi Singh and another (1976(2) SCR 716 at  721) 4.     Mahalaxmi Rice Mills vs. State of U.P (1998 (6) SCC 590 at 594) 5.     Chairman, Canara Bank vs. M.S. Jaera (AIR 1992 SC 1341 at  1346)

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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 "\005the  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.

Mr. Ashok 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.

Order 6 Rule 17

"R.17. Amendment of pleadings. \026 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 Section 16 of the Amendment Act reads as follows: "16. Amendment of Order VI. \026 In the First Schedule, in  Order VI. \026 \005.. (iii)   Rules 17 and 18 shall be omitted."

The Provision as it exists now after the CIVIL PROCEDURE  CODE (AMENDMENT ACT), 2002 Order VI Rule 17. "R.17. Amendment of Pleadings. \026 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 parties:

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 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 1003.   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.   Utlimately to strike a balance the Legislature applied its  mind and re-introduced Rule 17 by Act 22 of 2002 w.e.f.

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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. Reliance 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:  "Order 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.   The 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 16.09.2002.  

In 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.  Mr. 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.   According to him, there is absence of due diligence on the part  of the appellants.  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 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. It is to be noted that the provisions of Order VI Rule 17  CPC have been substantially amended by the CPC  (Amendment) Act, 2002.  Under 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

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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. The 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. 18.10.2005      Appellants\026 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 \026 plaintiffs applied for time.   Adjourned to 26.10.2005 26.10.2005      Respondents \026 plaintiffs applied for time.   Adjourned to 27.10.2005. 27.10.2005      Suit posted for recording of evidence of the  respondents \026 plaintiffs on 28.10.2005. 28.10.2005      Time applied for by the respondents \026 plaintiffs  for production of examination in chief of the  respondents \026 plaintiffs.  Adjourned to  29.10.2005. 29.10.2005      Adjourned at the request of the respondents \026  plaintiffs to 17.11.2005. 17.11.2005      Time taken to produce affidavit of the  respondent No.1 \026 plaintiff No.1.  Adjourned to  19.11.2005. 19.11.2005      Adjourned to enable the respondents \026  plaintiffs to produce examination in chief on  affidavit.  Adjourned to 21.11.2005. 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.         Note: 1.      Recording of evidence has thus begun. 2.      The appellant No.1 \026 defendant No.1 sought  time to cross examine the plaintiff No.1.   The appellant No.2 \026 defendant No.2 filed  application, inter alia directing the plaintiffs  to supply documents. 22.11.2005      The appellant No.2 \026 defendant No.2 filed an  application for adjournment and  sought time,  which was rejected by the trial Court. 24.11.2005      The appellants\026 defendants in the suit filed  application Exh.95 for amendment of the  written statement.

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       1.  It 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. 29.11.2005      Reply to the application for written statement  was filed by the plaintiffs \026 respondents at  Exh. 97.  The appellants \026 defendants  requested for time for filing the rejoinder  thereto. 03.12.2005      The appellants\026 defendants filed rejoinder. 05.12.2005      The hearing of the amendment application  commenced and since the Court time was  over, the matter was adjourned to 09.12.2005. 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. 14.12.2005      The plaintiffs’ Advocate made submission  opposing the amendment application.  The  matter was thereafter adjourned to  17.12.2005. 17.12.2005      By an administrative order, the matter was  transferred to another Court. 23.12.2005      The learned Presiding Judge was on leave. 25.12.2005      The defendants’ Advocate argued the  amendment application. 02.01.2006      The plaintiffs made submissions, opposing the  amendment application and for rejoinder  matter was adjourned to 09.01.2006. 06.01.2006      The Special Leave Petition No. 26472 of 2005  and 334 of 2006 filed by the appellants herein,  challenging the judgment and order dated  05.12.2005 passed by the High Court in  Appeal from Order No.421 of 2002, pursuant  to the remand order of this Court was  dismissed.  Directions issued to the trial Court  for expeditious hearing, preferably on day-to- day basis. 09.01.2006      submissions in rejoinder by the appellants \026  defendants in the application for amendment. 24.01.2006      Amendment application of the appellants\026  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.

On 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. On 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.   Three other different application were filed by the appellants  (Exh.141,142 & 143). On 16.3.2006, 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

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no stay was granted. In view of the transfer application having been filed  before the District Court, the appellants filed application  before the trial Court again for stay of the proceedings but the  prayer for stay was rejected and the matter was adjourned to  17.3.2006. On 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  adjourned. On 27.3.2006, the respondents sought time to file reply  which was filed on 15.4.2006.        On 28.03,2006, the appellants filed the transfer case  before this Court under Section 25 of the CPC. On 29.04.2006, the appellants filed an application for  revoking the stay of further proceedings.  Thus, 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.   In our 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.        We have carefully perused the pleadings and grounds  which are raised in the amendment application preferred by  the appellants at Ex. 95.  No facts are pleaded nor any  grounds are raised in the amendment application to even  remotely contend that despite exercise of due diligence these  matters could not be raised by the appellants.  Under these  circumstances, the case is covered by proviso to Rule 17 of  Order 6 and, therefore, the relief deserves to be denied.  The  grant of amendment at this belated stage when deposition and  evidence of three witnesses is already over as well as the  documentary evidence is already tendered, coupled with the  fact that the appellants’ application at Exh. 64 praying for  recasting of the issues having been denied and the said order  never having been challenged by the appellants, the grant of  the present amendment as sought for at this stage of the  proceedings would cause serious prejudice to the contesting  respondents \026 original plaintiffs and hence it is in the interest  of justice that the amendment sought for be denied and the  petition be dismissed.  An 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.  It is 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

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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 (appellants).  The judgment of the High Court recording concession by  counsel for the defendant reads thus: "22. 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 round.   Hence 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.  

We can 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

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meaningless and very often a proviso itself is read as a  substantive provision it has to be given full effect.  

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