Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while allowing the instant petition, set aside the order of trial Court, thereby allowing the amendment of the plaint contrary to the provisions of Code of Civil Procedure.

In the present case, respondent instituted a suit before trial Court for obtaining a decree of declaration that respondent has got the absolute title, ownership and possession over the property described in the plaint, schedule C and also a decree of prohibitory injunction restraining the appellant from trespassing into that property. After commencement of the examination of witnesses in the suit, the respondent filed an application (Ext.P5) under Order VI Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint, which was allowed by the trial Court.

The impugned order of the Trial Court was challenged in the instant petition. One of the main contentions raised by the petitioner was that the application for amendment of plaint cannot be allowed since it was filed by the respondent after the commencement of the trial of the suit.

While ascertaining the date of trial the Court reiterated its decision in Sasidharan v. Sudarsanan, 2020 SCC OnLine Ker 4540, wherein it was held that, “the trial in a suit commences on the date on which the affidavit in lieu of examination-in-chief of a party or his witness is filed for the purpose of recording evidence.” The Court further relied on Vidyabai v. Padmalatha, (2009) 2 SCC 409, where it was held by the Supreme Court that,

 “Order 6 Rule 17 CPC is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.”

The Court observed that the trial court has not considered whether the objections raised by the respondent are legally sustainable or not. Hence, the Court set aside the impugned order with the directions that the application is remanded to the trial court for fresh consideration and disposal. The trial court was directed to consider all relevant contentions raised by both parties and dispose of the application in accordance with law by a speaking order, within a period of one month from the date of production of a certified copy of this judgment. [T.V. Sasikala v. C.P. Joseph, 2020 SCC OnLine Ker 7702, decided on 21-12-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: In a revision petition challenging an order passed under Order 7 Rule 11 CPC; Raj Mohan Singh, J., allowed the petition while setting the order aside.

The present petition arises from the order dated 07-03-2020 passed by the Additional Civil Judge (Senior Division), Sirsa, vide which application under Order 7 Rule 11 CPC filed by the respondent was allowed and petitioner was directed to pay the ad valorem Court fee as per the market value of the suit property.

Counsel for the petitioner, Mohit Garg has submitted that there is a pending application before the trial court under Order 6 Rule 17 read with Order 1 Rule 10 and Section 151 CPC for amendment of the plaint. Through the proposed amendment, the petitioner intends to challenge the sale deed(s) executed by the plaintiff. In the event of acceptance of the said application under Order 6 Rule 17 CPC, the amended plaint would be tested at the threshold of Order 7 Rule 11 CPC. Consequently, if the proposed amendment is incorporated, the suit would be for declaration, challenging the sale deed and for possession.

The Court relied on the judgment delivered in the case of Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 which lays down the following principle-

“the executant of the sale deed if seeks cancellation of the deed, then the plaintiff has to pay the ad valorem Court fee on the consideration as shown in the deed.”

Based on this, the Court observed that the application under Order 6 Rule 17 CPC has to be decided before the decision of the application under Order 7 Rule 11 CPC. It is opined that the order dated 07-03-2020 passed by the trial court is pertinently illegal in nature.

“In any case, the pending application under Order 6 Rule 17 CPC ought to have been decided prior to the decision in the application under Order 7 Rule 11 CPC.”

In view of the above, the Court allowed the present revision petition directing the trial court to decide the application under Order 6 Rule 17 CPC. The Court also set aside the impugned order dated 07-03-2020. Only after consideration of the application under Order 6 Rule 17 will the trial court proceed with the application under Order 7 Rule 11 CPC.[Dera Baba Bhumman Shah Sangar Sarista v. Subhash Narula, 2020 SCC OnLine P&H 1625, decided on 08-10-2020]

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J., dismissed a petition filed against the order of the trial court whereby it had rejected the petitioner-defendant’s application under Order 6 Rule 17 CPC (amendment of pleadings) seeking amendment in their written statement.

The instant suit which was filed for specific performance in 2005 had a long and chequered history. The petitioner, in 2006, had filed an application for impleadment which was initially dismissed. However, later the Division Bench of the High Court allowed it and provided a limited right to the petitioner to file a written statement to participate in the proceedings. Subsequently, the petitioner had filed an application under Order 6 Rule 17 at the time when the plaintiff’s evidence had been commenced. This application was rejected by the trial court.

Ratnesh Bansal, Advocate appearing for the petitioner, sought to urge that the amendment which was sought now had arisen because some questions were not permitted to be put to the plaintiff’s witness in cross-examination. Per contra, Rajiv Garg, Ashish Garg and L.S. Rana, Advocates representing the plaintiff, vehemently opposed the application for amendment.

The High Court noted that initially the petitioner was given a restricted right to file a written statement but the written statement which was filed was beyond the liberty given by the Court. That led to considerable delay in the matter. The evidence by the plaintiff commenced in 2017 and concluded in 2018. Though the application for amendment was filed in 2017, it seemed to have been urged and pressed only after the cross-examination of the plaintiff’s witnesses has concluded.

Notably, the proviso to Order 6 Rule 17 states:

“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.”

Perusing the record and considering the submissions made the parties, the High Court held that the written statement being sought to be amended now was not only hopelessly barred but was also beyond the liberty which was initially granted. The trial court, therefore, rightly dismissed the application for amendment. After the conclusion of the plaintiff’s evidence, such an amendment could not be permitted in view of the proviso to Order 6 Rule 17 CPC. [Naresh Kumar v. Meer Singh, 2020 SCC OnLine Del 398, decided on 28-01-2020]

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Delhi High Court: A Single Judge Bench comprising of Jayant Nath, J. allowed an application under Order 6 Rule 17 CPC seeking amendment of witness statement filed by the defendants in the suit concerned.

The suit against defendants was listed for plaintiff’s evidence wherein the charge had already been framed. It was pleaded by the defendants that in the meanwhile they had received a Certificate for Registration of Design for the pen against which the suit was filed by the plaintiff. The plaintiffs resisted the said application contending the plea which was sought to be asked by the defendants was a self-destructive plea.

The High Court noted that what the defendants sought to add by way of the amendment were subsequent developments which arose after filing of the suit and was necessary for the purpose of determination of the real question in controversy between the parties. It was observed that the instant was not the stage where the Court would go into the merits of the proposed amendment. Such were the issues which the plaintiff has to raise at the time of adjudication of the suit. Wrongly or rightly, the defendants had received registration of their design. They only sought to place this subsequent development on record. The Court found no merits in the plea of the plaintiff and therefore the amendment of the written statement was allowed. [Pentel Kabushiki Kaisha v. Arora Stationers,2018 SCC OnLine Del 12567, decided on 25-10-2018]

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Punjab and Haryana High Court: This revision petition was filed before a Single Judge Bench comprising of Sudip Ahluwalia, J., against the order passed by Civil Judge (Jr. Division) where an application under Order 6 Rule 17 for amendment of original plaint was rejected.

The facts of the case were that petitioner filed a suit for recovery of a certain amount given to respondent as a friendly loan. The petitioner alleged respondent of giving a post-dated check and before maturity of cheque dates, respondent died due to which petitioner had filed suit. The respondent defended the suit by stating that the deceased could not have given the cheque as the same was claimed to have been given during the time deceased was ill and later on 1st of February he died. Petitioner at this stage filed an application for an amendment to plaint where he wanted to change averments that the deceased had taken a loan and issued the cheques to him in the month of January 2014 instead of February. The application was dismissed by Trial Court on the ground that the aforementioned change not only set up an inconsistent suit but also reeks a mala fide intention.

The High Court viewed that the dispute was related to the time and month in which the cheque was made and petitioner seeks to rectify this error in original pleadings so as to make it consistent with the facts and circumstances.  It was found that the proposed amendment does not change the nature and character of the suit, therefore, the revision petition was allowed and impugned order was set aside. [Navjot Singh v. Satwinderpal Singh, 2018 SCC OnLine P&H 1570, decided on 11-10-2018]