Shyamali Das vs Debasis Mali

Harish Tandon, J.—The facts, which were not disclosed before the Trial Court, have been improved in this revisional application. It is stated that the documents received in the evidence at the instance of the other side led to filing the application for amendment of the plaint, which this Court does not find to have been incorporated in an application for amendment.

Admittedly the amendment was sought after the commencement of trial. By promulgation of the Civil Procedure Code (Amendment) Act, 2002, a proviso is inserted to Order VI Rule 17 of the Code of Civil Procedure, which put a fetter in permitting the parties to amend the pleadings if brought after the commencement of trial, unless the Court is satisfied that the said party though was proceeding diligently, could not take out the same before the trial commences.

The application for amendment annexed to this revisional application does not reveal any explanation regarding delay in taking out an application for amendment after the commencement of trial. The only paragraph containing the statements for amendment is that at the time of drafting the plaint certain important facts could not be incorporated by the learned advocate, as the plaintiff forgot such facts. It is further stated that those amendments are required for complete and effective adjudication of the suit and shall not change the nature and character thereof.

When an order of the Trial Court is assailed before the High Court in the revisional jurisdiction, the Court should ordinarily confine its scrutiny on the documents and the papers available before the Trial Court and not on the papers by which an improvement of the case is made for the first time before the High Court in the revisional application by a clever draftsmanship. If the order impugned cannot be set aside on the basis of the materials available before the Trial Court, it cannot be branded illegal or improper on a subsequent development of the case made for the first time before the High Court.

The fact remains that after completion of the cross-examination of the witness of the plaintiff, an application for amendment came to be filed, which is bereft of any explanations, being the requirement of the proviso inserted to Order VI Rule 17 of the Code of Civil Procedure.

Mr. Giri, learned advocate appearing for the petitioner, relies upon a judgment of the Supreme Court in case of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., AIR 2006 SC 2832 : (2006) 7 JT 139 : (2006) 7 SCALE 517 : (2006) 6 SCC 498 : (2006) 4 SCR 259 Supp : (2006) AIRSCW 3956 : (2006) 5 Supreme 943 in support of his contention that the Court should permit the parties to alter the pleadings, if those are necessary for the purpose of adjudicating the dispute.

In the said Report a plea was taken that an amendment came to be filed after the commencement of trial and it was factually found that the trial did not commence. I am afraid that paragraph 17 of the said Report can be of any assistance and help to Mr. Giri, as it has been categorically found that the trial did not commence, when an application for amendment is taken out. It is relevant to quote paragraph 17 of the said Report, which runs thus:

"Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings."

In the other judgment relied upon by Mr. Giri in case of State of Madhya Pradesh Vs. Union of India (UOI) and Another, AIR 2012 SC 2518 : (2011) 9 JT 332 : (2011) 9 SCALE 6 : (2011) 12 SCR 140 : (2012) AIRSCW 771 , this Court do not find any quarrel to the settled proposition of law laid down therein. It has not been held therein that if an application for amendment is taken out after the commencement of trial, the Court would still allow such application by adopting a liberal approach.

This Court, therefore, does not find that any of the judgments cited by Mr. Giri have any relevance in the present context.

The revisional application is thus dismissed.

There will be no order as to costs.