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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