V.A. Susai Manickyam vs Rasool Shariff

A.N. Venugopala Gowda, J.—Defendant in O.S.5774/06 pending on the file of the City Civil Court, Bangalore, is the Petitioner. The Respondent has instituted the said suit. The suit has been contested. Based on the material pleadings, issues were framed on 31.10.07. Both sides have adduced evidence. The Petitioner filed I.A.8 under Rule 17 of Order 6 Code of Civil Procedure, seeking permission of the Court to amend the written statement to detete the present paragraph (1), substitute the proposed pleading as paragraph (1) and an insertion as proposed to paragraph (2) and a substitution in line 5 of paragraph (5). The Plaintiff objected the prayer. The Trial Court, on consideration, has passed an order allowing I.A.8 permitting only the 3rd amendment proposed i.e., substitution in line 5 of paragraph (5) of written statement and disallowing the rest of the proposed amendment. Aggrieved, the Defendant has filed this writ petition.

Mr. Rupert M. Rosario, learned Counsel appearing for the Petitioner, contended that, only when evidence was adduced by both parties and documents were marked by the Plaintiff, it became clear to the Petitioner that evidence had gone far beyond the plaint as he understood it and this going beyond the pleadings called for more detailed and specific additions to the written statement which he could not have raised prior to the commencement of trial and hence, I.A.8 was filed, the prayer'' has not been correctly appreciated by the Trial Court. Learned Counsel submits that, to avoid further litigation between the parties and since the pleading as it stands without the amendment does not include all necessary aspects of the property, the amendment proposed being necessary to decide the real question in controversy between the parties, ought to have been allowed. Learned Counsel submits that, the impugned order disallowing the first and second proposed amendments to the written statement is irrational and illegal.

Sri S.A. Sami, learned Counsel appearing for the Respondent on the other hand, contended that, the trial of the suit is complete and when the suit is at the stage of arguments, I.A.8 was filed and the same was not maintainable. Learned Counsel contends that the object behind the amendment proposed in I.A.8 was to overcome the admissions elicited in the cross-examination of the Petitioner, which is clear, from the affidavit in support of I.A.8 i.e., ''match the pleading with the evidence''. Learned Counsel submits that, the Trial Court has correctly considered I.A.8 and the order passed thereon being in conformity with law, no interference is called for.

The point for consideration is:

Whether the impugned order is irrational and illegal?

I.A.8 has been filed after commencement of trial of the suit. In the affidavit in support of I.A.8, the Petitioner has stated that in his cross-examination, the Plaintiff has elicited further and more other details about the property than he had mentioned in the written statement which are now out of pleadings from his side and hence, it is imperative that he should match the pleadings with his evidence which has necessitated the amendment to the 2nd paragraph of the written statement. With regard to the proposed amendment to the first paragraph of the written statement, it has been stated that, while discussing with his learned Counsel, it became clear that the Plaintiff who was always in occupation of 15'' x 40'' site, has falsely made the claim in the suit as the owner of 30'' x 40'' site and to expose the falsehood of the Plaintiff, the amendment is necessary.

The object of amendment by insertion of proviso to Rule 17 of Order 6 CPC is to speed up the trial of the cases in the Courts. The new proviso lays down that, no application for amendment shall be allowed after the commencement of trial 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. The proviso limits the power to allow the amendment after the commencement of trial but grants the discretion to the Court to allow the amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. Whether a party has acted with due diligence or not, depends upon the facts and circumstances of each case.

The reason for seeking amendment of the written statement as already noticed, is that certain information was elicited during the cross-examination of the Petitioner by the Plaintiff and hence, to match his evidence, the proposed 2nd amendment is stated to have become necessary. As far as the first proposed amendment is concerned, the reason stated, noticed supra, shows that, to expose the falsehood of the Plaintiff, the same has become necessary. The Petitioner though had knowledge and has deposed in the matter, for reasons best known to himself, has not pleaded the proposed pleading in the written statement. Indisputedly, there is litigation with regard to the suit property for more than two decades. The parties knew each others'' cases as there were proceedings. In the circumstances, it is not possible to hold that the Petitioner has acted with diligence.

The amendment proposed with regard to the measurement of the suit property was within the knowledge of the Petitioner but for reasons best known to him, has not been stated in detail in the written statement. The other reason stated that, the evidence should match with pleadings cannot be a tenable reason to permit the proposed amendment. The proposed amendment, if allowed, is likely to further delay the disposal of the suit.

Keeping in view the above circumstances, the impugned order cannot be termed as either irrational or illegal. Hence, the writ petition is devoid of merit and as a result, stands dismissed. No costs.

However, it is made clear that the observations made herein being limited to the consideration of the prayer for the proposed amendment of the written statement should not be construed as expression of opinion on merits of the defence of the Petitioner. It is for the Trial Court to decide the suit, uninfluenced by any of the observations made herein or in the impugned order passed by it. Since the suit has been pending adjudication from a long length of time, the Trial Court to decide the same early.