Mohammad Ishak Beg vs Nagar Panchayat and Others

Sujoy Paul, J—In this petition filed under Article 227 of the Constitution, the petitioner/plaintiff has challenged the order dated 10.11.2008 (Annexure P/1), whereby his applications preferred under Order 6 Rule 17 and Order 14 Rule 5, CPC, were rejected by court below.

The petitioner/plaintiff filed a suit for mandatory injunction in the year 2007. At the stage when the said case was fixed for evidence, an application under Order 6 Rule 17, CPC, was filed on 1.9.2008. The other side opposed the said application. Another application under Order 14 Rule 5 CPC was filed on 1.7.2008. The respondents filed reply and opposed this application as well. The court below rejected the amendment application on the ground that the facts pleaded in the amendment application were well known to the plaintiff. There is an inordinate delay in filing the said application. The plaintiff cannot be permitted to take different and contradictory stand by way of amendment. Lastly, it is held that the petitioner has not shown any due diligence in belatedly filing the application. The other application was also dismissed.

Ms. Sweta Bothra, learned counsel for the petitioner assailed the said order by contending that the impugned order itself shows that suit was at the stage of evidence but recording of evidence has not commenced. In other words, no witness has entered the witness box. She submits that even affidavits under Order 18 Rule 4 CPC have not been filed before the court below. She heavily relied on para 2 of application dated 1.7.2008. It is urged that in view of judgments passed by various Courts, issue No. 1 needs to be deleted. In support of her contention, she relied on Brijesh Kumar Trivedi Vs. Lali Bai and Smt. Jaspreet Kaur and Another Vs. Ramkrishna and Others, (2010) ILR (MP) 1939 : (2010) 4 MPHT 223 : (2011) 1 MPJR 293 : (2010) 3 MPLJ 387 .

Per Contra, Shri Akhil Sinha and Shri Sanjay Sharma, learned counsel appearing for the other side, supported the order. They submit that petitioner has made an effort to take ''U'' turn. The original pleading and proposed amendment was shown to this Court to buttress the aforesaid contention. Shri Sinha submits that trial had already begun and, therefore, unless due diligence is shown, amendment cannot be allowed.

No other point is pressed by learned counsel for the parties.

I have heard learned counsel for the parties and perused the record.

No doubt, the court below has recorded that evidence has not been started. However, it is trite that filing of an affidavit in lieu of examination in chief of the witness would amount to "commencement of proceedings". (See Vidyabai and Others Vs. Padmalatha and Another, AIR 2009 SC 1433 : (2009) 1 JT 302 : (2009) 154 PLR 490 : (2009) 1 SCALE 202 : (2009) 2 SCC 409 : (2009) 12 Vat Reporter 2524 : (2009) AIRSCW 899 : (2009) 1 Supreme 238 . This Court followed the said judgment in Pratap and Others Vs. Ganeshram and Others, (2014) 3 MPHT 212 : (2014) 2 MPLJ 464 . Paras 6 and 7 of this judgment reads as under:-

The main ground of attack on the impugned order is that in view of judgment of Baldev Singh (supra), the trial has not begun. In the considered opinion of this Court, the amendment prayed for before commencement of the trial and after commencement of the trial needs to be decided on different principles. This is because of insertion of proviso to Order 6 Rule 17 C.P.C. w.e.f. 2002. No doubt, in Baldev Singh (supra), the Apex Court opined about commencement of the trial, the said judgment was considered in a subsequent judgment reported in Vidyabai and Others Vs. Padmalatha and Another, AIR 2009 SC 1433 : (2009) 1 JT 302 : (2009) 154 PLR 490 : (2009) 1 SCALE 202 : (2009) 2 SCC 409 : (2009) 12 Vat Reporter 2524 : (2009) AIRSCW 899 : (2009) 1 Supreme 238 . In Vidyabai, the Apex Court considered its earlier judgment in Kailash Vs. Nanhku and Others, AIR 2005 SC 2441 : (2005) 3 CTC 355 : (2005) 4 JT 204 : (2005) 141 PLR 558 : (2005) 4 SCC 480 : (2005) 3 SCR 289 . In Kailash (supra), the Apex Court gave a finding that, "in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial".

After considering this judgment, the Apex Court opined that filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding" (para 11). In para 16 of this judgment, the Apex Court considered the view of Apex Court in Baldev Singh (s) and opined that it is not authority for the proposition that the trial would not be deemed to have commenced on the next date of first hearing. It is further opined that in the said case, documents were yet to be filed and in those circumstances, the Apex Court opined in that manner."

In Manoj Jain Vs. Suman Goyal, (2014) 4 MPLJ 143 , the same view was again followed.

Thus, the pivotal question in the present case is whether trial had commenced or not on the date of filing amendment application. The impugned order shows that last opportunity to lead evidence was granted to the plaintiff. This shows that earlier also certain opportunities on this count were granted. Parties have not chosen to file the order sheets. There is no pleading or material on record to show that even affidavits under Order 18 Rule 4 CPC were not filed. Thus, there is no clinching material to show that trial had not commenced. The court below has also not given any specific finding, which may throw light that trial had begun. The court below opined that petitioner has not shown any due diligence but did not give any finding about commencement of trial. A flying observation is given by the court below that matter is at the stage of evidence but evidence has not been recorded. In absence of adequate material, I am unable to decide the aspect whether trial had already begun or not.

This is settled in law that the amendment application preferred before commencement of the trial and the application preferred after commencement of trial has to be dealt with by different parameters. In Abdul Rehman and Another Vs. Mohd. Ruldu and Others, (2013) 115 CLT 624 : (2012) 5 CTC 803 : (2012) 10 JT 97 : (2012) 4 RCR(Civil) 481 : (2012) 9 SCALE 582 : (2012) 11 SCC 341 , wherein the the Apex Court opined as under:-

"The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

(emphasis supplied).

In view of the judgment in Abdul Rehman (supra), I deem it proper to set aside the impugned order and remit the matter back to the trial court to rehear the parties on the application under Order 6 Rule 17, CPC, and decide it afresh in accordance with law.

So far the application under Order 14 Rule 5 CPC is concerned, the petitioner has not even chosen to file the issues, which were framed by the court below. In absence thereto, I am unable to hold that the court below has committed any error in not allowing the application dated 1.7.2008. The impugned order to the extent it deals with application under Order 14 Rule 5 is not disturbed.

The impugned order to the extent it deals with application preferred under Order 6 Rule 17 CPC is set aside. The court below is directed to rehear the said application and decide it in accordance with law.

Petition is partly allowed.