2007 Supreme(Guj) 9

Gujarat High Court
Judgename :K.A.PUJ
AKSHAR IMAGE THRO proprietor KARUNABEN - Appellant
Versus
JAHESH CREATION - Respondent
SPECIAL CIVIL APPLICATION 4940 Of 2005
Decided On : 01/10/2007

Headnote:Point in Issue :

       Whether in the facts of the case Civil/City Civil Judge committed a very serious error of law and facts while allowing application to amend written statement?

       Head Note :

       Civil Procedure Code, 1908 (Central Act 5 of 1908) - Section 151, Order 6 Rule 17 and Order 8 Rule 6-A and B - Amendment of written statement - Claiming the same as counter claim - Framing of issues and recording of evidence started - Matter raised without knowledge of party before commencement of trial - Scope of - Finding as to - In view of proviso added to Order 6 Rule 17 of the Code by Amendment Act, 2002 Court can allow amendment of pleadings provided the trial has not commenced and the facts sought to be incorporated could not have been raised inspite of due diligence of the party - Concerned - Court observed that in the case trial had already commenced and no due diligence has been shown by respondent, therefore, City Civil Judge should not have entertained the amendment in question - In the affidavit filed by respondent seeking leave to defendant had mentioned all facts including claim of counter claim and for that he has alleged to file counter claim to recover the said amount - When these facts are not disputed then the proviso to Order 6 Rule 17 comes into effect that apart it is pertinent to note that amended written statement is likely to change entire complexion of the suit to the prejudice of the petitioner-original plaintiff - After filing written statement containing all the facts sought to be incorporated by way of amendment he remained silent for two years and thereafter he has come forward to amend written statement - This shows the intention on the part of Respondent No. 1 to delay proceedings - Court held that City Civil Court has as such committed serious error of law and facts while allowing the application to amend the written statement - Court set aside and quash the impugned orders of the City Civil Judge.

       Held :

       The undisputed facts which were enumerated by the learned City Civil Judge in his order are that the Respondent No. 1 in response to the summons for judgment taken out by the petitioner-original plaintiff, had filed an affidavit for leave to defend wherein he has raised number of contentions including the jurisdiction, want of brevity of contract, mis-joinder and non-joinder of necessary parties, interest and advance payments and has also contended in Paragraph 13 that as per the accounts maintained by the Defendant No. 1, he has to recover Rs. 6,08,340/- from the plaintiff in Civil Suit No. 83 of 2002 and Rs. 6,96,250/- in case of Civil Suit No. 82 of 2002. It has also been stated in clear terms that the Respondent No.1-original Defendant No. 1 was going to file counter claim to recover the said amount. Even in Paragraph 14 of the leave to defend affidavit, a contention was raised with regard to rejection of some goods due to inferior quality. Based on these rival contentions, unconditional leave to defend the suit was granted. The learned City Civil Judge has also referred to the facts that in view of an application Exhibit 36, the learned advocate for the Defendant No. 1 has adopted application for leave to defend as written statement and necessary issues have been framed and recording of evidence of plaintiff has been started in the Court. If these facts are not disputed, then straightway the proviso to Order VI Rule 17 has come into effect. As observed earlier, the proviso specifically states that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. [Para 23]

       It is also pertinent to note that by allowing the Respondent No.1-original Defendant No. 1 to amend the written statement and to treat the same as counter claim, the entire complexion of the suit has been changed and it has caused prejudice to the petitioner-original plaintiff. Even Order VIII Rule 6-A of the Code of Civil Procedure also prohibits the Respondent No.1 original Defendant No. 1 amend the written statement as the defence has already been delivered by the Respondent No.1-original Defendant No.1 by adopting leave to defend affidavit as the written statement. The Court has not thereafter granted any further time to the Respondent No. 1-original Defendant No. 1 to file the written statement. It is true that Respondent No. 1-orig Defendant No. 1 has made certain averments in the leave to defend affidavit with regard to the disputes about inferior quality of goods and also to raise counter claim. However, those observations are good enough for the purpose of getting unconditional leave the Court. The Respondent No. 1 has thereafter remained silent for about 2 years and only after the directions issued by this Court while disposing of Special Civil Application Nos. 9761 & 9762 of 2003 and after the issues were framed and the evidence was started, the Respondent No. 1 has come forward with the application for amendment in the written statement. This shows the intention on the part of Respondent No. 1-original Defendant No. 1 to delay the proceedings. [Para 24]

       Law Laid Down :

       Parties cannot be allowed to raise known disputes at a belated stage that too when intention is not genuine and bona fide.

       Case Law Analysis :

       Baldev Singh & Ors. vs. Manohar Singh & Anr., 2006 (6) SCC 498 [Para 19];; L. Narayan Reddy vs. P. Narayan Reddy and Ors., AIR 2005 Mad 66. [Para 20].-Relied on

       Conclusion :

       Having considered the relevant statutory provisions and authorities referred Court held that City Civil Judge has committed a very serious error of law and facts in allowing application to amend written statement - Hence impugned orders are set aside and quashed.

       Cases Referred :

       Ajendraprasadji Narendraprasadji Pande, Special Civil Application No. 1380 of 2006, decided on 09.03.2006;; Baldev Singh & Ors. vs. Manohar Singh & Anr., 2006 (6) SCC 498;; L. Narayan Reddy vs. P. Narayan Reddy and Ors., AIR 2005 Madras 66.

       Decided in Favour of :

       Petitioner

       Petition Allowed