Can court reject application for amendment of plaint on ground that its under recording of evidence?

IN THE HIGH COURT OF BOMBAY

W.P. No. 10922 of 2009
Decided On: 15.07.2010

Ajit Narsinha Talekar
Vs.
Nirmala Wamanrao Kekade and Ors.

Coram:D.G. Karnik, J.

Citation:2010 (5) MHLJ 481

1. Rule, returnable forthwith. Mr. Kumbhakoni appears for respondent Nos. 1 to 3 and waives service.
2. By consent taken up for hearing.

3. By this petition, the petitioner challenges the order dated 7 August, 2009 passed by the 5th Joint Civil Judge, Junior Division, Solapur rejecting the application made by the petitioner (original plaintiff) for amendment of the plaint.

4. The petitioner (landlord) filed a suit for possession against the respondents under the provisions of the Maharashtra Rent Control Act, 1999, inter alia, on four grounds, viz. (i) the respondents were not using the suit premises for residence, (ii) the respondents had not paid the rent from 1 April, 2004 and they were defaulters, (iii) the petitioner wanted to demolish the existing building and construct a new building thereon and as such the petitioner required the suit premises bona fide for the purpose of demolition and reconstruction, and (iv) the suit premises were given on rent for residence and the respondents were using the premises for carrying on business of running an eating house .

5. In the plaint, the petitioner had not given all the requisite details about his bona fide requirement regarding demolition and construction of a new building. He, therefore, filed an application for amendment of the plaint to incorporate the details. By the proposed amendment, he sought to plead that he had got the plans of new construction prepared from an architect. He also proposed to plead that the petitioner would offer new premises in the reconstructed building to the respondent. The application was rejected by the trial Court. Aggrieved petitioner is before this Court.

6. The order of rejection of application is very laconic and is quoted below in verbatim.

“Read the application and say. Heard the counsel of plaintiff. Amendment sought will change the nature of the suit. Hence application is rejected.”

To say the least, the learned Judge does not appear to have applied his mind to the application for amendment. The petitioner had already pleaded in the original plaint that he required the suit premises for the purpose of demolition and erection of a new building thereon. All that he wanted to plead by way of an amendment was to give details about that requirement and make an offer that he was willing to offer to the respondents new premises in the reconstructed building. The details were only elaboration of the ground and cannot be said to be a new ground so as to change the nature of the suit. Consequently, the order is required to be set aside.

7. Learned counsel for the respondents, however, submitted that the trial had commenced and, therefore, the application could not be allowed in view of proviso to Order 6, Rule 17 of the Code of Civil Procedure (for short “the Code”). Proviso to Order 6, Rule 17 reads thus:–

“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.”

No doubt, the proviso clearly says that after the commencement of the trial the application for amendment cannot be allowed except in a case where the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. Learned counsel for the petitioner, however, disputed that the trial had commenced. Counsel for the parties stated before me that issues have been framed but recording of evidence has not commenced. The petitioner has not even filed an affidavit in lieu of examination in chief of himself or any of his witnesses.

8. The question required to be considered is: Whether the trial commences on framing of the issues or whether it commences when an affidavit of any witness in lieu of examination in chief is filed after framing of the issues?

9. Relying upon a decision of the Supreme Court in Vidyabai vs. Padmalatha, MANU/SC/8401/2008 : 2009(4) Mh.L.J. (SC) 30 : AIR 2009 SC 1433, counsel for the respondents submitted that the trial commences on issues being framed. He invited my attention to paragraph 8 of the said decision which reads thus:

“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 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.”

Placing strong reliance on the sentence “the date on which the issues are framed is the date of first hearing”, counsel submitted that the moment the issues are framed the trial commences. In my view, this is misreading of the judgment. It is a settled principle of law that judgments of Courts are not to be read as a statute. A sentence in the judgment cannot be read in isolation. It must be read in the context in which it appears and cannot be read as a provision of a statute. The expression “the date of first hearing” appearing in second sentence of the above quoted paragraph is to be read in the context of subsequent sentence which reads: “Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding”. The Supreme Court has only said: “framing of issues is the first date of hearing” but that does not mean that on framing of issues the trial has commenced. Even after issues are framed, suits often are adjourned several times because of applications for adjournment made by either of the parties. Some times the matter is not even called out because the Court remains busy in dealing with older matters which are on board. Though the framing of issues is the first date of hearing, the actual hearing commences only when a party files an affidavit of himself or his first witness in lieu of examination in chief. That is the commencement of the trial.

10. For these reasons, there is no merit in the contention of the respondents that the application for amendment was barred by proviso to Order 6 Rule 17 of the Code. The writ petition is accordingly allowed and Rule is made absolute. The petitioner shall carry out the amendment within 4 weeks of the writ being received by the trial Court.

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