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CASE NO.: Appeal (civil)  481 of 2008

PETITIONER: Usha Devi

RESPONDENT: Rijwan Ahamd & Ors.

DATE OF JUDGMENT: 17/01/2008

BENCH: G.P.Mathur & Aftab Alam

JUDGMENT: J U D G M E N T [Arising out of SLP(C) No.20203/06] AFTAB ALAM,J.

1       Leave granted.

2       This appeal is directed against the order dated July 13,  2006, passed by the High Court in W.P.(C) No.2325 of 2006.  It  is a brief and non-speaking order by which the High Court  dismissed the writ petition and affirmed the order passed by the  trial court which, in turn, had rejected the appellant\022s petition  under Order 6, Rule 17 of the Code of Civil Procedure (\021CPC\022  for short) for amendment of the suit property as described in the  Schedule to the plaint. 3       The material facts are brief and simple.  In the year 2002,  the appellant filed a suit, inter alia, seeking permanent  injunction restraining the respondents-defendants from  interfering with her rights over the suit property and further  directing them not to build or demolish the building already  existing on the suit land.  In the Schedule to the plaint, the  description of the suit premises was given as follows : \023Southern half portion of measuring an area of  1937.97 sq.feet = 0.04.448 acres or 0.04.9/20  acres bearing at present holding Nos.304, before  that 275 and presently 201, Ward No.IV(Old) New  13, of GiridihMunicipality having double storied  house together the land over which it stands  bounded as follows :-

xxx                      xxx                   xxx                xxx

xxx                      xxx                   xxx                xxx

xxx                     xxx                   xxx                xxx\024            

The defendant-respondents filed their written statement in  which objection was especially taken to the description of the  suit property as given in the plaint.  On behalf of the  respondents it was stated that the area of land that might  possibly be the subject matter of any dispute was much smaller  and the plaintiff had described properties lawfully belonging to  them as the suit property.  No rejoinder to the written statement  was filed on behalf of the plaintiff and on the basis of the  pleadings issues were framed on August 13, 2002.  Thereafter,  the proceedings in the suit remained in abeyance but on August  5, 2002, the appellant-plaintiff filed a Misc. Petition under  Order 39, Rule 2(A) read with Section 151 C.P.C. (registered as  Misc.Case No.28/2002) for alleged breach of an interim  injunction earlier granted in her favour.  In that proceeding, the

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husband of the plaintiff was examined as one of the witnesses.   In course of his cross-examination, it was repeatedly put to him  that he did not have any idea of the suit land and that he would  not claim all the area mentioned in the Schedule to the plaint  but the plaintiff\022s claim would be only over one decimal of  land.  It was also suggested to him that the rest of the land  admittedly belonged to the defendants and further that any  alleged dispute between the parties could only be over a very  limited area and not the entire property as stated in the Schedule  to the plaint. The witness (the appellant\022s husband), however,  denied the suggestions made on behalf of the defendants and  stuck to the stand that the disputed property was correctly  described in the plaint and that was the subject matter of the  suit.  Later, on September 29, 2004, the amendment petition  was filed that gives rise to the present appeal.  In the  amendment petition it was stated that due to inadvertence the  suit land was wrongly described in the Schedule to the plaint  and the mistake required to be corrected.  It was further stated  that, as a matter of fact, one decimal equivalent to 9 chhatak by  standard measurement, i.e., 414 square feet of land (along with  some structure) was the subject matter of the suit.  Accordingly,  it was prayed that from the description of the suit property in  the plaint the opening words \023southern half portion of  measuring an area of 1937.97 square feet = 0.04.448 acre or  0.04.9/20 acres\024 be deleted and substituted by the following : \0231 decimal (one decimal) equivalent to about 9  chhatak (Nine chhatak) by standard measurement  that is 414 square feet land alongwith old double  storied house consisting of four rooms, two rooms  in ground floor and two rooms in first floor and  one verandah towards west that is in road side  covered with cogurated sheet, a stair case for going  to upper floor rooms.\024 bearing at present holding  number No.304\005\005\005

4     The trial court rejected the petition by order dated February  2, 2006, observing as follows : \023As such it cannot be said that plaintiff in spite of  due diligence could not have raised this  discrepancy in the plaint prior to 29.09.04 i.e. after  nearly 2 years of the settlement of the issues and  after witnesses have been examined on oath in the  Misc.Case 28/2002 arising out of T.S.58/2002.

        \023Hence it is clear that the plaintiff in spite of  ample opportunity to have corrected the  discrepancy in the Schedule of the plaint did not  care to remove the same instead kept of (sic)  insisting and asserting the correctness of the land  and boundary mentioned in the Schedule.\024

The order of the trial court was challenged before the High  Court in a writ petition which was dismissed with the  observation that there was no illegality in the impugned order.  5       Amendment of pleadings used to be one of the easiest  things in the course of judicial proceedings before the  amendments came to be made in the C.P.C. in the year 1999.  It  was felt that the provision for amendment of pleadings (Order  6, Rule 17) was greatly abused and it was one of the significant  sources of delay in the judicial process.  Accordingly, as per the  recommendation of the Law Commission, the provision for  amendment of pleadings was altogether deleted by Act  46/1999.  The deletion of the provision led to widespread  protests by lawyers and different legal bodies and as a result the  provision was once again introduced, albeit with a rider, by Act

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22/2002, with effect from July 1, 2002.  In its amended form,  Rule 17, Order VI carries a proviso that bars any amendment  after the commencement of trial 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  trial. 6          As noted above, the trial court found and held that there  was singular lack of due diligence on the part of the appellant- plaintiff inasmuch as the wrong description of the suit property  was pointedly brought up by the defendants not only in the  written statement but also in course of the proceedings of the  Misc.Case. 7      Mr.Devashish Bharuka, learned counsel appearing on  behalf of the appellant, submitted that the proviso to rule would  come into play only after the commencement of trial and in this  case the trial court was in error in rejecting the appellant\022s  prayer invoking the due diligence clause in the proviso.   Learned counsel further submitted that neither the framing of  issues nor the proceedings of Misc. case could be taken as  commencement of trial.  The prayer for amendment was made  at the pre- trial stage and hence, the prayer should have been  allowed without difficulty as was the position under the  unamended Rule 17. 8  Mr.S.R.Sharma, learned counsel appearing for the  respondents-defendants, on the other hand, submitted that the  plaintiff-appellant had obtained interim injunction against the  defendants in regard to the property as described in the plaint  and now the proposed amendment made it manifest that the  defendants were made to suffer injunction for a long time with  regard to their own property. The prayer for amendment,  according to him, was fit to be rejected on that ground alone  and allowing the prayer would be quite unreasonable, unjust  and unfair.  He further submitted that on the plaintiffs own  showing the suit in its present form was bound to fail and the  permission to amend the plaint would, therefore, amount to  giving an undue advantage to the plaintiff.  He further  submitted that the proposed amendment would not only change  the suit property but would also change the cause of action and  would thus render the suit not maintainable in any event.  He  lastly submitted that the prayer for amendment was made after  the commencement of the trial and the trial court had, therefore,  rightly rejected the prayer.  He maintained that the trial of the  suit would commence with the settlement of the issues.  In  support of the submission that the framing of the issues marked  the commencement of trial of the suit, Mr.Sharma, relied upon  the decision of this Court in Ajendraprasadji N.Pandey & Anr.  Vs. Swami Keshavprakeshdasji N. & Ors. [2006 (12) SCC 1].   In paragraph 57 of the decision, it was observed as follows : \023It is submitted that the date of settlement of issues  is the date of commencement of trial. (Kailash v.  Nanhku [2005 4 SCC 480]) 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 defendants 1 and 2 (the appellants).\024

From the above-quoted passage, it appears that the decision did  not hold that settlement of issues marks the commencement of

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trial. Earlier in the decision, the court exhaustively examined  the proceedings from date to date and on that basis came to  hold and find that the prayer for amendment was made after the  commencement of trial. 9     Mr.Bharukha, on the other hand, invited our attention to  another decision of this Court in Baldev Singh & Ors. Vs.  Manohar Singh & Anr. [2006 (6) SCC 498].  In paragraph 17 of  the decision, it was held and observed as follows : \023Before 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.\024

Mr.Bharukha also invited our attention to a three-Judge Bench  decision of this Court in Sajjan Kumar vs. Ram Kishan [2005  (13) SCC 89].  In this decision too the proposed amendment  related to correction of the description of the suit premises in  the plaint.  The amendment was sought on the plea that the  description of the property given in the rent note itself was  incorrect and the same description was repeated in the plaint  and there would be complications at the stage of execution to  avoid which the description of the suit premises as given in the  plaint needed to be corrected.  Another similarity with the case  in hand was that the prayer for amendment was opposed by the  defendant-respondent on the principal ground that although the  defendant had taken the plea in the written statement itself that  the suit premises were not correctly described, yet the plaintiff- appellant proceeded with the trial of the suit and did not take  care to seek the amendment at an early stage.  The trial court  rejected the prayer for amendment and the High Court  dismissed the civil revision against the order of the trial court.   Allowing the prayer for amendment this Court in paragraph 5  of the decision observed as follows : \023Having heard the learned counsel for the parties,  we are satisfied that the appeal deserves to be  allowed as the trial court, while rejecting the  prayer for amendment has failed to exercise the  jurisdiction vested in it by law and by the failure to  so exercise it, has occasioned a possible failure of  justice.  Such an error committed by the trial court  was liable to be corrected by the High Court in  exercise of its supervisory jurisdiction, even if  Section 115 CPC would not have been strictly  applicable.  It is true that the plaintiff-appellant  ought to have been diligent in promptly seeking the

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amendment in the plaint at an early stage of the  suit, more so when the error on the part of the  plaintiff was pointed out by the defendant in the  written statement itself.  Still, we are of the opinion  that the proposed amendment was necessary for  the purpose of bringing to the fore the real  question in controversy between the parties and  the refusal to permit the amendment would create  needless complications at the stage of the  execution in the event of the plaintiff-appellant  succeeding in the suit.\024

10        In view of the decision in Sajjan Kumar, we are of the  view that this appeal too deserves to be allowed.  We may  clarify here that in this order we do not venture to make any  pronouncement on the larger issue as to the stage that would  mark the commencement of trial of a suit but we simply find  that the appeal in hand is closer on facts to the decision in  Sajjan Kumar and following that decision the prayer for  amendment in the present appeal should also be allowed.   11       As to the submission made on behalf of the respondents  that the amendment will render the suit non-maintainable  because it would not only materially change the suit property  but also change the cause of action it has only to be pointed out  that in order to allow the prayer for amendment the merit of the  amendment is hardly a relevant consideration and it will be  open to the defendants-respondents to raise their objection in  regard to the amended plaint by making any corresponding  amendments in their written statement.   12        The counsel for the respondents also submitted that as a  result of the description of the suit property in the plaint the  defendants-respondents had to suffer injunction against their  own property.  We feel that the ends of justice would meet by  allowing the proposed amendment subject to a cost of  Rs.10,000/-. 13      This appeal is accordingly allowed. The orders of the trial  court and High Court are set aside and it is directed that the  appellant may be allowed to make the proposed amendment in  the plaint subject to payment of Rs.10,000/- as cost to the  respondents-defendants.   The amendment will be allowed in  case the amount of cost is paid within two months from today.