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2009(1) Supreme 238
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha and Cyriac Jodeph, JJ.
Vidyabai & Ors. — Appellants
versus
Padmalatha & Anr. — Respondents
Civil Appeal No. 7251 of 2008
[Arising out of SLP (Civil) No. 4740 of 2008]
Decided on : 12-12-2008
(2006) 12 SCC 1; (2005) 6 SCC 344; (2006) 4 SCC 385 – Relied upon.
(2006) 6 SCC 498; (2004) 13 SCC 432– Distinguished impliedly.
(b)Trial – Commencement of – The date on which the issues are framed is the date of first hearing – Filing of an affidavit in lieu of examination in chief of the witness would amount to ‘commencement of proceeding’ – Also, 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”. (Paras 8 and 11)
(1996) 4 SCC 127; (2005) 4 SCC 480 – Relied upon.
(c)Code of Civil Procedure, 1908 – Order XVIII, Rule 4(1) – Provision for examination-in-chief on affidavit has been made to curtail the time taken in examining a witness-in-chief. (Para 11)
(2004) 1 SCC 702 – Relied upon.
(d)Judicial Review – Reversing a trial court judgment without examining its jurisdiction or commission of any error of law fails the test of judicial review. (Para 16)
Facts of the case :
1.On or about 16.12.2003, the plaintiffs - appellants filed a suit for specific performance of an agreement of sale. 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.
2.In between the period 17.04.2004 and 8.11.2006, however, issues were framed and parties filed their respective affidavits by way of evidence. Dates had been fixed for cross-examination of the said witnesses.
3.On or about 8.11.2006, an application had been filed under Order VI Rule 17 of the Code of Civil Procedure 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.
4.By reason of an order dated 18.07.2007, the learned Principal Civil Judge (Sr. Dn.) Hubli dismissed the said applications.
5.A writ petition was filed thereagainst. I.A. 10 was also directed to be allowed.
Finding of the Court :
Impugned judgment cannot be sustained.
Result : Appeal allowed.
Key Points: - Amendment can be allowed only if in spite of due diligence the parties could not have raised the matter before the commencement of the trial (!) (!) . - Trial commences when the issues are framed and the case is set down for recording of evidence (!) (!) . - It is the primal duty of the court to decide whether amendment is necessary to decide the real dispute between the parties, and only then can the amendment be allowed (!) (!) . - The proviso to Order VI Rule 17 places a mandatory condition and limits the court’s jurisdiction unless the required precondition is satisfied (!) (!) . - The judgment of the High Court was set aside because it did not examine the jurisdictional fact regarding due diligence and trial commencement (!) .
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 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 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 o
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