Rethinam alias Anna Samuthiram Ammal and Others vs Syed Abdul Rahim

P.K. Misra, J.—Heard the learned counsel appearing for the parties.

The plaintiffs have filed the present civil revision under Article 227 of the Constitution of India challenging the order, dated 27th August, 2004

passed by the Trial Court, rejecting their application for amendment of the plaint. Initially, the suit was filed for permanent injunction. After

commencement of trial, the plaintiffs filed an application for the amendment of the plaint praying that their title should be declared and a decree for

recovery of possession should be granted in their favour. Such application was rejected by the trial Court by placing reliance on the decision of this

Court P. Subba Naicker v. Veluchamy Naicker 2004 (2) CTC 742 and observing that after the Amended C.P.C. had come into force, no

amendment of the plaint can be allowed after commencement of the trial unless the Court comes to the conclusion that in spite of due diligence the

plea could not have been raised before the commencement of the trial. The trial Court also stated that such petition was filed to drag the

proceedings.

Order 6, Rule 17, C.P.C., as it originally stood, permitted amendment of pleadings at any stage. However, under the CPC (Amendment) Act,

2002, which came into force with effect from 1.7.2002, a proviso was added, to Order 6, Rule 17. The proviso which was added is to the

following effect:

Provided that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite

of due diligence, the party could not have raised the matter before the commencement of the trial.

The scope of aforesaid amended provision was considered by a learned Judge of this Court in the decision P. Subba Naicker v. Veluchamy

Naicker 2004 (2) CTC 742. It was observed therein in paragraph 4 as follows:--

Apart from the above factual details, it is to be noted that after the Amendment Act, 2002 (which came into force with effect from 1.7.2002),

no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due

diligence, the party could not have raised the matter before the commencement of trial.... In the light of the proviso to Rule 17 of Order 6 of the

CPC and of the fact that the petitioner has not satisfied the Court that he is entitled to file such a petition even after the commencement of the trial,

as rightly argued by the learned counsel for the respondent, the application for amendment is liable to be rejected.

As is well known, the Code of Civil Procedure, 1908, which was extensively amended in 1976, has been further amended by CPC

(Amendment) Act, 1993 and CPC (Amendment) Act, 2002. The aforesaid two amending Acts have come into force with effect from 1.7.2002.

u/s 16(iii) of the CPC (Amendment) Act, 1999 in the First Schedule, it was provided that Rules 17 and 16 in Order 6 shall be omitted. In other

words, the Amendment Act, 1999 abrogated the provision for the amendment of pleadings under Order 6, Rule 17, altogether. However, as per

the Amendment Act, 2002, Order 6, Rule 17, as it stood before Amending Act, 1999 has been retained with the addition of the proviso, which,

has already been extracted. This has been done u/s 7 of the CPC (Amendment) Act, 2002.

Section 16 of the CPC (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision u/s 16, so far as relevant for the

present purpose, is as follows:

Repeal and savings.-- (1) ...

(2) ...

(a) ...

(b) the provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule as omitted or, as the case may be, inserted or substituted by Section

16 of the CPC (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement

of Section 16 of the CPC (Amendment) Act, 1999 and Section 7 of this Act;

(c) ...

The aforesaid provision makes it clear that the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the CPC (Amendment)

Act, 1999 and which had been inserted by Section 7 of the CPC (Amendment) Act, 2002 shall not apply to in respect of any pleadings filed

before the commencement of Section 16 of the Code or Civil Procedure (Amendment) Act, 1999 and Section 7 of the CPC (Amendment) Act,

2002. As already indicated, the CPC (Amendment) Act, 1999 and the Code of Civil, Procedure (Amendment.) Act, 2002 came into force with

effect from 1.7.2002. From the bare reading of the provisions contained in Section 16(2)(b) of the CPC (Amendment) Act, 2002, it is clear that

such amended provision as contained in proviso shall not apply to in respect of any pleadings filed before the commencement of the amended

Code. Pleadings in, this context obviously include the plaint and written statement. Therefore, in respect of the plaint or written statement filed

before 1.7.2002, the proviso to Order 6, Rule 17 would have no applicability.

In the present case, the trial Court has relied upon the proviso to Order 6, Rule 17 of the CPC (Amendment) Act, 2002. The amendment of

plaint was necessitated on account of the fact that as per the plaintiffs'' case, the defendant had disturbed the possession during the pendency of the

suit which necessitated the relief for declaration of title and recovery of possession. Such an amendment, by applying the principles relating to

amendment of plaint as applicable before 1.7.2002, would have been allowed notwithstanding the fact that such amendment was sought for after

the commencement of actual trial. The trial Court has rejected the application for amendment mainly applying the proviso as interpreted by the

learned Judge of this Court in the decision P. Subba Naicker v. Veluchamy Naicker 2004 (2) CTC 742. However, the clear language contained in

Section 16(2)(b) of the CPC (Amendment) Act, 2002 makes it clear that the petition for amendment under Order 6, Rule 17, should have been

considered dehore the proviso which had been introduced for the first time in the CPC (Amendment) Act, 2002. The impugned order is, therefore,

liable to be set aside. The revision petition is accordingly allowed and the amendment prayed for by the plaintiffs is also allowed, however, subject

to the condition that the petitioners shall pay a cost of Rs. 1000 to the respondent directly or deposit such cost before the trial Court within a

period of four weeks from the date of receipt of copy of the present order.

The trial Court had placed reliance upon the observation of the learned Judge of this Court in the decision above mentioned. Unfortunately, the

specific provision contained in Section 16(2)(b) of the CPC (Amendment) Act, 2002 had not been brought to the notice of the learned Judge. It is

thus appears that the judgment was rendered per incuriam. Law is well settled that when a decision is rendered per incuriam such decision is not to

be considered as a binding precedent. See Municipal Corporation of Delhi Vs. Gurnam Kaur, .

I must place on record my appreciation of the fair manner in which the learned counsel for the respondent has made is submissions. As a matter

of fact, it is only the learned counsel for the respondent who brought to my notice the specific provision contained in the CPC (Amendment) Act,

2002, even though the decision of this Court rendered in P. Subba Naicker v. Veluchamy Naicker 2004 (2) CTC 742 directly supported the case

of the respondent. Such fairness on the part of the learned counsel for the respondent is required to be emulated by all.

In the result, the civil revision petition is allowed with the above direction. Consequently, connected C.M.P. No. 1823 of 2004 and VCMP

No. 22 of 2005 are closed.