Vidyabai - and - Ors - Vs - Padmalatha - and - Ors - 12122008 - Ss081749COM444438

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MANU/SC/8401/2008

Equivalent Citation: AIR2009SC 1433, 2009 (74) ALR 357, 2009(1)ARC 663, 2009 (3) AWC 2489 (SC ), JT2009(1)SC 302, 2009(3)KarLJ604,
2009-3-LW137, 2009(4)MhLJ30(SC ), 2009MPLJ122(SC ), 2009(I)OLR737, 2009(I)OLR(SC )737, (2009)154PLR490, 2009(1)RC R(C ivil)763,
2009(1)RC R(Rent)120, 2009 106 RD390, RLW2009(2)SC 1581, 2009(1)SC ALE202, (2009)2SC C 409, 2009(1)UJ216, (2009)12Vat Reporter 2524

IN THE SUPREME COURT OF INDIA


Civil Appeal No. 7251 of 2008 (Arising out of SLP (Civil) No. 4740 of 2008)
Decided On: 12.12.2008
Appellants: Vidyabai and Ors.
Vs.
Respondent: Padmalatha and Ors.
Hon'ble Judges/Coram:
S.B. Sinha and Cyriac Joseph, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.K. Kulkarni, M. Gireesh Kumar and Vijay Kumar,
Advs
For Respondents/Defendant: Kiran Suri, S.J. Amith and Aparna Bhat, Advs.
Case Note:
(1) Code of Civil Procedure, 1908 - Order VI, Rule 17--Amendment of
pleading--Amendment in written statement sought after hearing of case
has started--Trial court found that pre-condition of proviso to Rule 17 of
Order VI not satisfied--And rejected application for amendment--Whether
High Court justified in interfering?--Held, "no"--High Court did not deal
with contentions raised before it--Did not apply its mind to jurisdictional
issue -- Impugned judgment unsustainable--And set aside.
(2) Code of Civil Procedure, 1908 - Order VI, Rule 17, proviso--Suit--Trial
when commences in terms of proviso to Rule 17 of Order VI--Filing of
affidavit in lieu of examination-in-chief of witness--Would amount to
'commencement of proceeding'.
Ratio Decidendi:
"Unless jurisdictional fact is found to be existing, the Court will have no
jurisdiction at all to allow amendment of the plaint."
Case Category:
ORDINARY CIVIL MATTER - MATTERS RELATING TO SPECIFIC PERFORMANCE OF
CONTRACT
JUDGMENT
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

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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.
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 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 there against. 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

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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 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.
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 therefore 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 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

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India and Ors. v. Major General Madan Lal Yadav (Retd.) MANU/SC/0355/1996 :
[1996]3SCR785 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:
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. MANU/SC/0943/2003 : AIR2004SC355
in the following terms:
1 5 . 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.
In Kailash v. Nanhku MANU/SC/0264/2005 : AIR2005SC2441 , 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

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therein are included within the meaning of the word "trial".
We may notice that in Ajendraprasadji N. Pandey and Anr. v. Swami
Keshavprakeshdasji N. and Ors. MANU/SC/8760/2006 : AIR2007SC806 , 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.
3 6 . Ultimately, to strike a balance the legislature applied its mind and
reintroduced Rule 17 by Act 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
MANU/SC/0450/2005 : AIR2005SC3353 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 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

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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.
12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and Ors. v.
Manohar Singh and Anr. MANU/SC/3519/2006 : AIR2006SC2832 , 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 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 Anr. v. Heero
Dhankani and Ors. MANU/SC/1316/2004 : (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 Ors. v.
K.K. Modi and Ors. MANU/SC/8043/2006 : AIR2006SC1647 . 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.
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. I n Salem Advocate Bar Assn. (supra), this Court has upheld the validity of the

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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.
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.

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