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2011 Supreme(Bom) 1371
2012 (1) ALL MR 644
High Court of Judicature at Bombay
R.M. SAVANT
Jotiram Shiva Patil & Others
Versus
Dwarkabai Yashwant Mardane & Others
WRIT PETITION NO.8653 of 2011
Decided on : 23-11-2011
For the Petitioners:Prashant S. Bhavake, Advocate.
For the Respondents:R1 to R6, Surel Shah, Advocate.
Headnote:Civil Procedure Code, 1908 - Section 153, Order VI, Rule 17 - Permission to sign written statement - Permission to sign written statement and for correcting verification clause is referable to Section 153 of Code and not to Order VI, Rule 17 of Code.
Where the suit for specific performance was dismissed and when the appeal filed by the plaintiffs was kept for final hearing the defendants noticed that the written statement filed in the suit was signed a verified by the defendant No. 1 only, resulting in the defendants filing the applications Exhibit 43 and 43-A. By the said applications, the correction was sought to the effect of allowing other defendants to sign the written statement and to sign the verification clause. The said application could be referable to Section 153, Civil Procedure Code. The permission to sign the pleadings and to sign the verification clause can by no stretch of imagination be said to be amendment of pleadings. The signing of the pleadings and the verification can only be said to be for authenticating the said pleadings by their proponents.
The principal District Judge, therefore, erred in adverting to Order VI, Rule 17 of the Civil Procedure Code. However, that would not make any material difference in view of the fact that the Court is sufficiently seized with powers under Section 153 of the Civil Procedure Code to permit the correction of any defect or error in the proceedings so as to facilitate the determination of the real question before the Court. There is no irregularity or any error of wrongful exercise of jurisdiction by the appellate Court in allowing the said applications, to interfere by the High Court in its supervisory jurisdiction under Article 227 of the Constitution of India.
P.C.
1. Rule. With the consent of the parties made returnable forthwith and heard.
2. The above Petition takes exception to the Order dated 1-4-2011 passed by the Learned Principal District Judge, Kolhapur by which Order, the Application Exhibit 43 and 43A in Regular Civil Appeal No.126 of 2007 filed by the Original Defendant came to be allowed.
3. The brief facts necessary to be cited for adjudication of the above Petition are stated thus:
The Petitioners herein are the original Plaintiffs in Special Civil Suit No.294 of 2002, filed by them for specific performance of the contract, for a direction that the Defendants be directed to execute a sale deed in respect of the suit property in their favour, and for a further declaration that the sale deed executed by the Defendant Nos.1 to 5 in favour of the Defendant No.6 is not binding upon them.
4. The Respondents herein are the original Defendants who had filed the said applications Exhibit 43 and 43A. The parties went to trial and the said suit was dismissed by the Learned Civil Judge Senior Division, Kolhapur, by his Judgment and Order dated 622007. Against the said Judgment and Order passed in the said suit, the Plaintiffs preferred Regular Civil Appeal No.126 of 2007 in the District Court at Kolhapur. The said Appeal came to be admitted on 862007.
It is at that stage, that it came to the notice of the Defendants that the written statement was signed by only the Defendant No.1 Dwarkabai and was verified by her only. The Defendants, therefore, moved the said application Exhibit 43 for permitting the other Defendants to sign the written statement and file the supporting affidavit in terms of Order 6 of the CPC and the Application Exhibit 43 A for correcting the verification clause. It was their case in the said applications that due to inadvertence, the Written statement was not signed and verified by the other Defendants. The said application was opposed by the Plaintiffs by filing a reply. It was the contentions of the Plaintiffs in the said reply that the written statement could not be amended at such belated stage and that if the written statement is allowed to be amended, the admission which is in favour of the Plaintiffs on account of the defect in the written statement, could be taken away. The Plaintiffs sought to rely upon the Judgments relating to the power of the Court under Order 6 Rule 17 of the CPC. On the other hand the Defendants sought to rely upon the Judgment of the Apex Court reported in AIR 1969 SC 1267 in the matter of Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaonand the Judgment of a Learned Single Judge of this Court reported in2002 (Supp.) BomC.R. 8 in the matter of Om Prakash Dinodia Vs. Ashalata wd/o Late Dr. Anant.
5. The Trial Court considered the said applications Exhibit 43 and 43A and by holding that the rules of procedure are ultimately the handmaid of justice and have therefore, to be used to further the cause of justice and not to oppress it and considering the fact that the trial was conducted oblivious of the said fact culminating in the dismissal of the suit, found it fit to allow the said applications as indicated above. It is the said Order dated 1-4-2011, which is the subject matter of the above petition.
6. Heard, the Learned Counsel for the parties.
7. The Learned Counsel for the Petitioners would contend that in terms of Order 6 Rule 14 of the CPC, the parties are obligated to sign the pleadings and in view of the fact that all the Defendants have not signed the said written statement, the Trial Court has erred in allowing the said applications Exhibit 43 and 43A. The Learned Counsel would contend that the Defendants have not satisfied the due diligence test as laid down by the Catena of Judgments of the Apex Court as well as this Court.
The Learned Counsel would contend that there is not a whisper in the application as to why the amendment to the pleadings could not be carried out earlier. Th
