Manoj Kumar Jain vs Nafis Akhtar

Sheel Nagu, J.—This petition under Article 226 of the Constitution of India assails the interlocutory order dated 15.10.2014 passed by 3rd Additional Civil Judge Class II in Civil Suit No. 14-A/2014 whereby an application under Order 6 Rule 17 CPC preferred by defendant no. 3/petitioner herein has been rejected on the ground of failure of the defendant no. 3 to satisfy the requirement of proviso to Order 6 Rule 17 CPC in a suit for eviction and recovery of rent

The defendant no. 3 preferred an application for amendment under Order 6 Rule 17 for carrying out certain amendment in his written statement.

Indisputably, at the time of filing of the application for amendment, the suit was at the stage of cross-examination of plaintiff''s witnesses, meaning thereby that trial had commenced.

Thus it was necessary for the defendant no. 3/petitioner to demonstrate that despite exercise of due diligence the said amendment could not be brought forth prior to commencement of trial.

Perusal of the application under Order 6 Rule 17 CPC indicates that on searching old records in his possession a notice dated 21.3.1974 came to his knowledge by which tenancy was terminated by late Shri Kacchu Ram and thereafter new tenancy agreement was entered into with enhanced rent. This amendment was said to be brought forth by amendment to demonstrate that the intention was merely to enhance the rent while the termination of tenancy was a mere camouflage of intention to enhance rent. Thus defendant no. 3 requested to add one more paragraph in his written statement to incorporate the said fact in the pleadings.

The court below has rejected the said application for amendment on the ground that trial has commenced and thus the proviso to order 6 Rule 17 CPC has come into operation and that the factum of amendment was not based on subsequent event. The court below found that defendant no. 3 has failed to establish that despite the said notice dated 21.3.1974 being in possession of defendant no, 3, could not be brought forth earlier.

Learned counsel for the petitioner has placed reliance on the decision in the case of Pushpa Arora Vs. Dr. Smt. Anita Arora and Others, .

Learned counsel for respondent has placed reliance on the decisions in the cases of Dinesh Kumar Vs. Yusuf Ali, , Vidyabai and Others Vs. Padmalatha and Another, and Jiwanlal and Ors. v. Samalia and Ors. reported in 1977 MPWN SN 471.

The reading of the impugned order indicates that the trial had reached the stage of cross-examination of plaintiff''s witnesses and therefore the trial has indisputably commenced. The amendment at this stage can only be allowed if the defendant is able to demonstrate that despite exercise of due diligence he could not bring forth the said amendment prior to commencement of trial. Decision of the Apex Court in the case of Dinesh Kumar (supra) is of no application as the same does not relate to Order 6 Rule 17 CPC. The decision of the Apex Court in the case Vidya Bai (supra) has clearly laid down that the filing of the affidavits in view of examination-in- chief of plaintiff''s witnesses amounts to commencement of trial and, therefore, in the instant case where the stage of cross-examination of plaintiff''s witnesses had reached the trial, had surely commenced. In the case of Vidya Bai (supra) the Apex Court has set aside the decision of the High Court which has interfered in the decision of the trial court rejecting the application under Order 6 Rule 17 CPC filed at the stage of cross- examination of plaintiff''s witnesses. Thus the said case supports the view taken by this court today. The 3rd case cited of Jeevanlal and ors. (supra), is of no application since it relates to the era when proviso to Order 6 Rule 17 CPC had not been added.

Coming to the citation relied upon by the learned counsel for the petitioner/defendant in the case of Pushpa Arora (supra), It is seen that in the said case the single Bench of this court while exercising its supervisory power under Article 227 set aside the order of the trial court rejecting the application under Order 6 Rule 17 CPC in the factual background where the trial had not commenced and thus the said decision is of no application to facts prevailing herein.

In the instant case, the burden of exercise of due diligence has not been discharged by the petitioner. Merely saying in the application under Order 6 Rule 17 CPC that the notice in question was discovered while room in the house was being cleaned, does not suffice the requirement of the proviso to Order 6 Rule 17 CPC.

In view of the above no jurisdictional error appears to have committed by the trial court while passing the impugned order which is accordingly upheld.

Accordingly, this petition filed under Article 226 of the Constitution seeking exercise of writ jurisdiction by this court is hereby dismissed sans cost.