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Judgment
Sabyasachi Bhattacharyya, J.
Despite service, none appears on behalf of the opposite party. As such, the matter is heard ex parte.
The plaintiff in a suit for eviction has preferred the instant revisional application against partial rejection of the petitioner’s application for
amendment of the plaint of the said suit.
By virtue of the said amendment, the plaintiff inter alia sought to introduce the current address of the defendant/opposite party in the cause title as
well as to introduce the allegation that the defendant has purchased a flat, through her son, at such new address and is now residing there, keeping the
suit premises under lock and key.
This apart, the amendment sought to alter the valuation of the suit from Rs.12,100/- to Rs.24,100/-. In the body of the amendment application, it was
stated that the monthly rent as tendered by the defendant was Rs.2,000/-, which necessitated the amendment regarding valuation.
It is relevant to mention here that, in paragraph no. 5 of the original plaint, it was stated that Pranab Kumar Das, a ‘sebait’ other than the one
who filed the suit on behalf of the plaintiff deity, had reduced the rate of rent to Rs.1,000/- per month payable according to English calendar.
The Trial Court allowed the amendments relating to the acquisition of new property by the defendant’s son and change of address of the
defendant, but refused to allow the parts of the amendment whereby the valuation of the suit was sought to be changed. The premise of such rejection
was that the plaintiff must have known the actual rate of rent of the suit property from the very inception of the suit and that, after commencement of
trial, the plaintiff intended to incorporate that the rate of rent was Rs.2,000/-. As such, the said part of the amendment was refused by invoking the
proviso to the amended Order VI Rule 17 of the Code of Civil Procedure.
Learned counsel for the plaintiff/petitioner argues that the Trial Court refused to exercise jurisdiction vested in it by law in not permitting the
amendment relating to change of valuation of the suit. It is argued that, in terms of Section 10 of the West Bengal Court Fees Act, 1970, in every suit
in which the court fee is payable on the plaint or memorandum of appeal the Court shall, on the date fixed for the appearance of the opposite party or
as soon as may be thereafter, and in every case before proceeding to deliver judgment, record a finding whether sufficient court fee has been paid. In
case of insufficient court fees having been paid, consequences such as stay of all further proceedings in the suit are also contemplated in the said
section.
As such the plaintiff, it is argued, only sought to assist the Court by pointing out the proper valuation of the suit for the purpose of assessment of
court fees by way of the amendment and as such, the amendment in that regard ought to have been allowed as a matter of course, without going into
the rigours of the proviso to Order VI Rule 17 of the Code of Civil Procedure. Learned counsel further argued that the proposed amendment was
necessary to avoid multiplicity of proceedings.
In this context, learned counsel cites a judgment of the Supreme Court reported at (2015) 4 SCC 182 [Mount Mary Enterprises vs. Jivratna Medi
Treat Pvt. Ltd.]. In the said judgment, it was held inter alia that Order VI Rule 17 of the Code of Civil Procedure postulates amendment of pleadings
at any stage of the proceedings and amendments should be refused only where the other party cannot be placed in the same position as if the pleading
had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.
It was further held that an amendment application should be normally granted unless by virtue of the amendment, nature of the suit is changed or
some prejudice is caused to the defendant. Since the amendment had been taken out in the said case to give the correct value of the suit property, as
the market value of the property was different from the initial valuation of the same, the said amendment was allowed.
In this context, learned senior counsel for the petitioner cites another judgment reported at AIR 1961 SC 1299 [Sri Rathnavarmaraja. vs. Smt.
Vimla], wherein it was held inter alia that the matter of proper court fee was primarily a question between the plaintiff and the State and there could
not be any scope for the defendant feeling aggrieved. As such, it is argued that the plaintiff only tried to do its duty by pointing out the correct
valuation of the suit property by way of amendment.
Learned senior counsel cites a further judgment of a co-ordinate Bench of this Court reported at 2009(3) CHN 328 [Ila Choudhury vs. Maya Bose
and others], wherein it was held that the Trial Court could not keep the matter of ascertainment of proper court fees undecided and in abeyance till
final hearing of the suit and ought to decide the matter upon an enquiry under Section 11 of the West Bengal Court Fees Act, 1970, if necessary,
expeditiously.
This apart, it was argued that it is well-settled that amendments are generally to be allowed to avoid multiplicity of proceedings.
Learned senior counsel for the petitioner cites a judgment reported at (2011) 12 SCC 268 [State of Madhya Pradesh vs. Union of India and
another], wherein the Supreme Court inter alia held that in certain cases amendment sought after commencement of trial was permissible. It was held
that though the courts have ample power to allow amendment of plaint, such power should be exercised in the interest of justice and for determination
of real questions in controversy between the parties. Either party can alter or amend his pleadings in such manner and on such terms as may be just;
however, amendments cannot claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a
hyper-technical approach. Liberal approach, it was held, should be the general rule, particularly in cases where the other side can be compensated
with costs. Normally, amendments are allowed in pleadings to avoid multiplicity of litigations.
It was further held that where the amendment application is filed after commencement of trial, it must be shown that in spite of due diligence, such
amendment could not have been sought earlier.
Learned senior counsel for the petitioner next cites a judgment reported at AIR 2006 SC 2832 [Baldev Singh vs. Manohar Singh]. In the said
judgment, the Supreme Court held inter alia that a wide power and unfettered discretion has been conferred on the court to allow amendment of
pleadings in such manner and on such terms as it appears to the court to be just and proper. In the said decision, a distinction was, however, made
between the amendment of plaint and that of written statement. The plaintiff, it was held, cannot be allowed to amend his pleadings to alter materially
or substitute his cause of action or the nature of his claim, however, such fetter was not applicable to amendments of written statement. In paragraph
no. 17 of the said judgment, it was held that ‘commencement of trial’, as used in the proviso to Order VI Rule 17 of the Code, 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.
At this juncture, upon a decision of the Supreme Court, reported at (2009) 2 SCC 409 [Vidyabai vs. Padmalatha], being pointed out by the Court,
learned senior counsel submits that the said judgment, also reported at AIR 2009 SC 1433, was referred to in a judgment rendered by this Court in
C.O. No. 1323 of 2013 and the learned Single Judge, even upon considering the said judgment, had come to the conclusion that the commencement of
trial was from the stage of filing of affidavit of examination-in-chief. Thus, it was argued that the portion of the impugned order whereby the
amendment application of the plaintiff/petitioner was partially rejected, ought to be set aside and such amendment allowed.
Learned senior counsel next cites a judgment of a co-ordinate Bench of this Court, rendered on April 26, 2013 in C.O. No. 1323 of 2013, which is
apparently unreported. In the said judgment, Baldev Singh (supra) was relied on, apart from another judgment of the Supreme Court reported at AIR
2009 SC 1433 [Vidyabai and others vs. Padmalatha and another].
The learned Single Judge, upon placing reliance on those judgments, arrived at the conclusion that the date on which the affidavit as to
examination-in-chief is filed should be the date for the purpose of commencement of trial as envisaged under the proviso to Order VI Rule 17 of the
Code.
Upon a consideration of the judgments cited by the petitioner, it is seen that the consistent view of the Courts has been that amendments ought to
be allowed liberally, in particular to avoid multiplicity of proceedings. However, the introduction of the proviso to Order VI Rule 17 of the Code of Civil
Procedure has put a fetter to the liberal view, inasmuch as, if the amendment application is filed after the commencement of trial, the same shall not
be allowed, 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 Mount Mary Enterprises (supra), the facts were different from the present case. The suit therein had been filed for
specific performance of a contract. Subsequently, it was pointed out in the written statement that the market value of the suit property was much
higher than that pleaded by the plaintiff in the original plaint. In such case, the amendment was refused by the Trial Court on the ground that upon
enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its Original Side. The Hon’ble Supreme
Court held that the amendment could not have been rejected on the said reason. In such context, the amendment was allowed.
In the present case, however, the plaintiff sought to amend the valuation of the suit without incorporating a corresponding change in the body of
the plaint relating to the basis of such enhancement of the valuation. Only in the body of the amendment application itself (although not in the schedule
of amendment), it was indicated that the monthly rent as tendered by the defendant was Rs. 2,000/- (Rupees Two Thousand). Moreover, as correctly
held by the Trial Court, the plaintiff ought to have known the correct rate of rent from the inception of the suit and no justification for the filing of the
amendment application after commencement of trial was given in the amendment application.
As far as the judgment of State of Madhya Pradesh (supra) was concerned, it was held therein that normally amendments are allowed in
pleadings to avoid multiplicity of litigation and that liberal approach was the general rule. However, it was further held that where the amendment
application was filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier.
In the present case, there does not appear to be any such cause shown in the amendment application.
In Sri Rathnavarmaraja (supra), the Hon’ble Supreme Court held that the matter of proper court fee was primarily a question between the
plaintiff and the State and there could not be any scope of the defendant feeling aggrieved.
In Ila Choudhury (supra), on the other hand, a co-ordinate Bench of this Court held that the Trial Court could not keep the matter of ascertainment
of proper court fees undecided and in abeyance till final hearing of the suit.
By relying on such judgments, learned counsel for the petitioner tries to impress upon this Court that by way of amendment, the plaintiff only
sought to disclose the correct valuation in order to assist the Court and that the defendant could not have any say in the matter.
However, although there is no dispute that proper court fees ought to be ascertained by the Court when called upon to do so, the present matter
relates to alteration of a particular valuation of the suit by way of amendment. It is not for the first time, by way of amendment, that the valuation was
sought to be incorporated, but a particular valuation had already been given in the original plaint, which was now sought to be altered by amendment.
Since no reason whatsoever was given for not filing the amendment earlier, the said amendment could not be allowed merely on the ground that the
same pointed out the valuation of the suit, more so since the effort was only to alter the valuation originally given.
Coming to the judgment of Baldev Singh (supra), although it was held therein that ‘commencement of trial’, as used in the proviso to Order
VI Rule 17 of the Code, must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents
and addressing of argument, yet it was held in the subsequent judgment of Vidyabai (supra) by a Bench of the same strength, that Baldev Singh
(supra) was not an authority for the proposition that trial would not be deemed to have commenced on the date of first hearing. In that case, as
explained in Vidyabai (supra), the documents were yet to be filed and therefore, it was held that the trial did not commence.
The Hon’ble Supreme Court, in Vidyabai (supra), categorically distinguished the ‘commencement of proceeding’, which began with the
filing of an affidavit in lieu of examination-in-chief of the witness, with ‘commencement of trial’, which began on the date on which the issues
were framed, which was the date of first hearing.
In this context, the following paragraphs of Vidyabai (supra) would be relevant:
“8. Mr S.K. Kulkarni, learned counsel appearing on behalf of the appellants, would submit that in view of the proviso appended to Order 6 Rule 17
of the Code, the High Court committed a serious illegality in passing the impugned judgment.
Ms Kiran Suri, learned counsel appearing on behalf of the respondents, on the other hand, would contend that the proviso appended to Order 6 Rule
17 of the Code is not attracted in the instant case as by reason of the amendment to the written statement, no new case has been made out. It was
submitted that “leave†to amend the written statement was filed for the purpose of elaborating the defence which had already been taken by the
defendants and in that view of the matter, this Court should not exercise its jurisdiction under Article 136 of the Constitution of India particularly when
it is well known that an application for amendment of written statement should be dealt with liberally.
By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of
the Code, which reads as under:
“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 trial.â€
It is couched in a mandatory form. The courtʹs jurisdiction to allow such an application is taken away unless the conditions precedent therefor are
satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the
trial.
From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question,
therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are
framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding.
Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to “commencement of proceedingâ€.
Although in a different context, a three-Judge Bench of this Court in Union of India v. Major- General Madan Lal Yadav [(1996) 4 SCC 127 :
1996 SCC (Cri) 592] took note of the dictionary meaning of the terms “trial†and “commence†to opine: (SCC p. 136, para 19)
“19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction
or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the
performance of the first act or steps necessary or essential to proceed with the trial.â€
The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.
Order 18 Rule 4(1) of the Code reads as under:
“4. Recording of evidence.â€"(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to
the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along
with affidavit shall be subject to the orders of the Court.â€
This aspect of the matter has been considered by this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702] in
the following terms: (SCC p. 707, paras 15-16)
“15. The examination of a witness would include evidence-in-chief, cross-examination or re- examination. Rule 4 of Order 18 speaks of
examination-in-chief. The unamended rule provided for the manner in which ‘evidence’ is to be taken. Such examination-in-chief of a witness in
every case shall be on affidavit.
The aforementioned provision has been made to curtail the time taken by the court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order
18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the court or the
Commissioner appointed by it.â€
In Kailash v. Nanhku [(2005) 4 SCC 480] this Court held: (SCC pp. 490-91, para 13)
“13. At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word
‘trial’ in the context of an election petition? 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. As held by this
Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings
commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word
‘trial’.â€
We may notice that in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. [(2006) 12 SCC 1] this Court noticed the decision of this
Court in Kailash [(2005) 4 SCC 480] to hold: (Ajendraprasadji case [(2006) 12 SCC 1] , SCC p. 13, paras 35-36)
“35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not
permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.
Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision
permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar
introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the
conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls
for consideration.†This Court also noticed Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] to hold:
(Ajendraprasadji case [(2006) 12 SCC 1] , SCC pp. 14-15, paras 41-43)
“41. We have carefully considered the submissions made by the respective Senior Counsel appearing for the respective parties. We have also
carefully perused the pleadings, annexures, various orders passed by the courts below, the High Court and of this Court. In the counter- affidavit filed
by Respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our
opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings.
It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002.
Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could
not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be
allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order
(sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up
disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over
the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by
recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The
details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of
amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the
appellants disentitling them to relief.â€
The ratio in Kailash [(2005) 4 SCC 480] was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set
down for recording of evidence.â€
It is clear that the Hon’ble Supreme Court categorically held in Vidyabai (supra) that trial, for the purpose of the proviso to Order VI Rule 17
of the Code of Civil Procedure, commenced on the date of first hearing, that, is the framing of issues.
In the present case, it appears that the amendment application was filed after framing of issues, though before commencement of evidence.
Hence, the ratio laid down in Vidyabai (supra) would preclude the amendment from being allowed, as correctly decided by the Trial Court.
However, a co-ordinate Bench of this Court, in C.O. No. 1323 of 2013, vide order dated April 26, 2013, held that the date on which the affidavit as
to examination-in-chief is filed should be the date for the purpose of commencement of trial as envisaged under the proviso to Order VI Rule 17 of the
Code.
With utmost respect, the said view expressed by the learned Single Judge in C.O. No. 1323 of 2013, although arrived at by placing reliance on
Vidyabai (supra), was contrary to the ratio laid down in Vidyabai (supra) and, as such, is not correct.
Hence, in the opinion of this Court, the present matter ought to be referred to a larger Bench for the purpose of resolution of the said question of
law.
Accordingly, C.O. No. 2868 of 2017 be sent to the Hon’ble the Chief Justice for constituting a Division Bench for deciding, on reference, the
following question: Whether, in view of Vidyabai vs. Padmalatha [(2009) 2 SCC 409], ‘commencement of trial’, as envisaged in the proviso to
Order VI Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is the date of framing of issues, or the final hearing of the
suit, examination of witnesses, filing of documents and addressing of arguments?
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.