The trial Court ought not have rejected the amendment application on the ground that the matter was fixed before the Court for recording of evidence. Though the matter was fixed for recording of evidence in the instant case, the plaintiff had not filed the evidence on affidavit. It has been held by the Supreme Court in the case reported in MANU/SC/8401/2008 : 2008 DGLS (soft) 1437 : 2009 (1) All.M.R. 471 : 2009 (2) S.C.C. 409, which also considers the case reported in MANU/SC/0264/2005 : 2005 (3) Bom.C.R. 906 (S.C.) : 2005 DGLS (soft) 187 : 2005 (4) S.C.C. 480, that the filing of affidavit in lieu of examination in chief of the witness would mean commencement of the proceedings. In the instant case, the evidence on affidavit was not filed by any of the parties before the trial Court. Moreover, the proposed amendment was extremely necessary for effectively deciding the controversy between the parties. The amendment application could not have been rejected on the sole ground that the matter was fixed for recording of evidence. The grant of the proposed amendment would also not cause any grave or serious prejudice to the case of the respondents as the proposed amendment was merely clarificatory in nature.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 3002 of 2009
Decided On: 17.11.2009
Bhagwandas Kanhaiyyalal Bubna
Vs.
Shyamsunder Wasudeo Bubna and Ors.
Hon'ble Judges/Coram:
V.A. Naik, J.
1. Rule made returnable forthwith. Petition is heard finally at the stage of admission with the consent of the learned Counsel for the parties.
2. The petitioner is the original plaintiff. The suit had been filed by the plaintiff for permanent and mandatory injunction restraining the respondents/original defendants from making any construction in the space between two Samadhis of their common ancestors and for removal of the construction they had already made. The respondents filed written statement and denied the claim of the petitioner. It was pleaded by the defendant that the Samadhi was admeasuring 20 ft x 50 ft and the possession of the land between the two Samadhis was not passed on to the petitioner at any point of time. Issues were framed and the matter proceeded for tendering of evidence of the plaintiff. At this juncture, the plaintiff filed an application for amendment of the plaint under Order 6, Rule 17 of the Code of Civil Procedure. By the proposed amendment, the petitioner desired to explain some of the pleadings in the plaint in view of the objection raised by the defendant in the written statement. The amendment application was however, dismissed by the trial Court only on the ground that the matter was posted for evidence and the application for amendment could not have been filed at that juncture. The order dated 3.3.2009 is impugned by the petitioner by filing the instant petition.
3. Shri V.R. Mundra, the learned Counsel for the petitioner submitted that it was necessary for the trial Court to allow the amendment application in the facts and circumstances of the case, as the plaintiff merely desired to elaborately describe the suit property and the construction which was made by the respondent on the same. It is submitted on behalf of the petitioner that the trial did not commence in this case as the parties had not tendered any evidence, though the matter was fixed for tendering the evidence. The learned Counsel for the petitioner submitted that filing of affidavit in lieu of the examination-in-chief is held to be a stage of commencement of proceedings. The learned Counsel for the petitioner relied on the decision reported in Vidyabai and Ors. v. Padmalatha MANU/SC/8401/2008 : 2008 DGLS (soft) 1437 : 2009 (1) A11.M.R. Page 471 : 2009 (2) S.C.C. 409, to substantiate his submission. The learned Counsel for the petitioner submitted that rejection of the amendment application would cause further complications in the execution proceedings if the suit of the plaintiff is decreed.
4. Shri Lohiya, the learned Counsel for the respondents supported the order passed by the trial Court on 3.3.2009 and submitted that the application was rightly rejected as it was filed when the matter was fixed for evidence. The learned Counsel for the respondents submitted that the petitioner was trying to supply better particulars in this case and the amendment application was rightly dismissed in view of the omission of the provisions of Order 6, Rule 5 of the Code of Civil Procedure. The learned Counsel for the respondents relied on the decision reported in Kailash v. Nanhku MANU/SC/0264/2005 : 2005 (3) Bom.C.R. 906 (S.C.) : 2005 DGLS (soft) 187 : 2005 (4) S.C.C. 480, to substantiate his submission that the fixing of the case for evidence would mean that the trial had began. The learned Counsel for the respondent sought for the dismissal of the writ petition.
5. I have considered the submissions made on behalf of the parties along with the impugned order dated 3.3.2009 and the amendment application filed by the petitioner. On reading of the proposed amendment in paragraph 1-A, it appears that this amendment cannot be granted as the same is in the form of a reply to the pleadings in the written statement. The learned Counsel for the petitioner also admits that the proposed amendment in paragraph 1-A of the amendment application may not be granted. The proposed amendment in paragraph 2-A of the amendment application is however, in the nature of a clarification of the pleadings made by the petitioner in the plaint and it appears from the reading of paragraph 2-A of the application that these pleadings in the proposed amendment are necessary for effectively deciding the controversy between the parties. So also the part of the pleadings in paragraph 2-B of the proposed amendment are also necessary for effectively deciding the controversy between the parties as these pleadings merely show the construction which is made by the defendants over the suit property. Only last part of the paragraph 2-B of the amendment application is not clarificatory in nature and it speaks about the photographs of the alleged construction by the defendants. The pleadings pertaining to the photographs are in nature of evidence and hence these pleadings cannot be incorporated in the plaint by way of amendment. Hence the pleading in the paragraph 2-B of the proposed amendment could be permitted to be incorporated in the plaint only from the beginning till the petitioner has stated that the construction made by the defendants is not of the compound wall.
6. The trial Court ought not have rejected the amendment application on the ground that the matter was fixed before the Court for recording of evidence. Though the matter was fixed for recording of evidence in the instant case, the plaintiff had not filed the evidence on affidavit. It has been held by the Supreme Court in the case reported in MANU/SC/8401/2008 : 2008 DGLS (soft) 1437 : 2009 (1) All.M.R. 471 : 2009 (2) S.C.C. 409, which also considers the case reported in MANU/SC/0264/2005 : 2005 (3) Bom.C.R. 906 (S.C.) : 2005 DGLS (soft) 187 : 2005 (4) S.C.C. 480, that the filing of affidavit in lieu of examination in chief of the witness would mean commencement of the proceedings. In the instant case, the evidence on affidavit was not filed by any of the parties before the trial Court. Moreover, the proposed amendment was extremely necessary for effectively deciding the controversy between the parties. The amendment application could not have been rejected on the sole ground that the matter was fixed for recording of evidence. The grant of the proposed amendment would also not cause any grave or serious prejudice to the case of the respondents as the proposed amendment was merely clarificatory in nature. The submission made on behalf of the respondent that the amendment application ought to have been rejected, in view of the omission of the provisions of Order 6, Rule 5 of Code of Civil Procedure is liable to be rejected. 7. In the result, the writ petition is partly allowed. The impugned order passed by the Civil Judge, Junior Division, Chandur Railway, on 3.3.2009 is hereby quashed and set aside. The amendment application filed by the petitioner under the provisions of Order 6, Rule 17 of the Code of Civil Procedure is partly allowed. The petitioner is permitted to incorporate paragraphs 2-A in its entirety and paragraph 2- B only from the opening words of the paragraph till the petitioner has stated that the said construction by the defendant is not of the compound wall. Rule is made absolute in the aforesaid terms. No order as to costs.
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