Writ Petition No.10241 of 2009

29th March, 2011

Petitioner Counsel: Mr. PRAVIN SAMDANI,Mr. MAYUR KHANDEPARKAR , SAPS RACHURE,T. N. Tripathi & Co.
Respondent Counsel: Mr. SWANAND R. GANOO,Mr. L. A. RUBENS , SUJIT S. SURYAWANSHI,M/s. Vigil Juris
Other Counsel: Mr. P. S. DANI

Cases Cited:
State Bank of Hyderabad Vs. Town Municipal Council, 2007 ALL SCR 18=(2007)1 SCC 765 [Para 4,6,14,17]
Sumesh Singh Vs. Phoolan Devi, 2009(12) SCC 689 [Para 4,6,14,17]
Sonic Surgical Vs. National Insurance Co. Ltd., 2009(6) ALL MR 1014 (S.C.)=(2010)1 SCC 135 [Para 4]
Reserve Bank of India Vs. Ment Company Ltd., (1987)1 SCC 424 [Para 4]
Usha Balashaheb Swami Vs. Kiran Appaso Swami, 2007 ALL SCR 1333=AIR 2007 SC 1663 [Para 4]
Anil s/o. Vishwanath Jadhav Vs. Pankaj s/o. Indrajeet Bassi, 2010(2) Mh.L.J. 220 [Para 5]
Syed Akbar Syed Nooroddin Jahagirdar Vs. Syed Abdul Haq Syed Nooroddin Jahagirdar, 2007(5) ALL MR 590=2008(3) Bom.C.R. 860 [Para 5]
M/s. Hi Sheet Industries Vs. Litelon Ltd., AIR 2007 Mad. 78 [Para 5]
Rethinam Vs. Syed A. Rahim, (2005)3 Mh.L.J. 94 [Para 5]
Vidyabai Vs. Padmalatha, 2009(1) ALL MR 471 (S.C.)=AIR 2009 SC 1433 [Para 5]
Badrinarayan Bansilal Somani Vs. Vinodkumar K. Shah, 2003(2) ALL MR 1040=2003(2) Mh.L.J. 120 [Para 5,18]
Nasiruddin Vs. Sita Ram Agarwal, (2003)2 SCC 577 [Para 5]
Garikapati Veeraya Vs. N. Subbiah Choudhry, AIR 1957 SC 540 [Para 6,9]
M. Sagar s/o. Chainnayya Vs. Saud Akhtar Khan s/o. late Abdul Hamid Khan, 2004(2) ALL MR 384 [Para 6,11]
Ujawala Athare (Patil) Vs. Asha Ravindra Paranjape, 2004(2) Mh.L.J. 1126 [Para 6,13]
M/s. Ambalal Sarabhai Enterprises Ltd. Vs. M/s. Amrit Lal & Co., (2001)8 SCC 397 : AIR 2001 SC 3580 [Para 9,10,16]
State of Punjab Vs. Mohar Singh, AIR 1955 SC 84 [Para 10]
Smt. Rani Kusum Vs. Smt. Kanchan Devi, 2006(1) ALL MR 63 (S.C.)=(2005)6 SCC 705 [Para 15]

JUDGMENT

JUDGMENT:- Rule.

Rule made returnable forthwith.

By consent of parties taken up for hearing.

The petitioner challenges the order dated 29.8.09 passed in RC Suit No.187/99 vide which the applications filed by the present petitioner for amendment of written statement and counter claim below Exhs.223 and 225 came to be rejected.

2. Respondent Nos.1 to 4 have filed a suit against respondent Nos.5 to 7 for possession of the suit premises. On 27.3.2000 respondent No.5 filed written statement contesting the claim of the plaintiff. On 7.4.2001 the respondent No.5 filed an affidavit and pursis submitting to the decree of evidence in favour of respondents 1 to 4. On 30.2.2001 the petitioner filed an application for joining herself as party-defendant to the said suit. Vide order dated 1.11.2001 learned trial Court rejected the said application. The petitioner being aggrieved thereby had approached this Court by Civil Revision Application No.24/2002 which was allowed by this Court vide order dated 26.1.2002. On being joined as party-defendant to the said suit the petitioner filed written statement and counter claim on 16.12.2002 inter alia seeking declaration that the petitioner was lawful tenant of the suit premises and in the alternate for declaration that she had become "irrevocable licensee" in respect of suit premises. On 30.3.2002 the respondent Nos.1 to 3 filed written statement to the counter claim of the petitioner. On 18.4.2009 petitioner filed an application for amendment to the written statement (below Ex.223) and for amendment to the counter claim (below Ex.225). Said application was resisted by respondents 1 to 4. By the impugned order dated 29.8.2009 the said application was rejected. Hence the present petition.

3. Heard Shri. Samdani, learned senior counsel for the petitioner and Shri. Ganu, learned counsel for respondents. Since an important question as to whether amended provisions of Order 6, Rule 17 as amended by 2002 Amendment to the Code of Civil Procedure (hereinafter referred to as the "Amendment Act 2002) are applicable to the pleadings filed before the date on which the said amendment came into effect or to the suit filed prior to the said date is involved in the present matter, Shri. Dani learned counsel was requested to act as amicus curiae to assist the Court.

4. Shri. Samdani, learned senior counsel appearing on behalf of the petitioner submits that the amended provisions of CPC are not applicable to the suits filed before 1.7.2002 i.e. date on which the amendment to the CPC came in to effect. In this respect he relies on the judgments of the Apex Court reported in the case of State Bank of Hyderabad Vs. Town Municipal Council, (2007)1 SCC 765 : [2007 ALL SCR 18] and Sumesh Singh Vs. Phoolan Devi & Ors., 2009(12) SCC 689. Learned counsel further relying on the provisions of section 153 of CPC submitted that section 153 is a substantive provision which permits an amendment to be carried out at any stage of the proceedings and as such would not be governed by the provisions of Order 6, Rule 17 which according to learned counsel finds place in the Rules. Learned counsel further submits that in any case, the provisions of section 153 and Order 6, Rule 17 will have to be construed harmoniously so as to avoid abstract construction. He submits that if the proposition that the amended provisions of CPC are not applicable only to pleadings filed before 1.7.2002 and not to the suit filed before the said date, an anomalous situation would arise in as much as the plaintiff who has filed his pleadings before 1.7.2002 would not be governed by the amended provisions of Order 6 Rule 17 of CPC and the defendant who has filed written statement after said date would be governed by the said provisions. Learned counsel in this respect relies upon a judgment of the Apex Court in the case of Sonic Surgical Vs. National Insurance Co. Ltd. (2010)1 SCC 135 : [2009(6) ALL MR 1014 (S.C.)] and in the case of Reserve Bank of India Vs. Ment Company Ltd., (1987)1 SCC 424. On merits learned counsel submits that in so far as the amendment to written statement is concerned the Courts are required to take more liberal view and therefore submits that in the facts of the case the learned trial Court ought to have allowed the amendment. Learned counsel in this respect relies on the judgment of the Apex Court in the case of - Usha Balashaheb Swami Vs. Kiran Appaso Swami, AIR 2007 SC 1663 : [2007 ALL SCR 1333].

5. As against this Shri. Ganoo learned counsel appearing on behalf of the respondents submits that perusal of the Amendment Act of 2002 would reveal that only the pleadings which are filed before commencement of section 16 of CPC Amendment Act, 1999 (hereinafter referred to as the "Amendment Act, 1999) and section 7 of the Amendment Act, 2002 would be saved from applicability of amended provisions of CPC. He submits that two learned Single Judges of this Court viz. S. B. Deshmukh, J. and S. S. Shinde, J. in the cases of Anil s/o. Vishwanath Jadhav Vs. Pankaj s/o. Indrajeet Bassi, 2010(2) Mh.L.J. 220 and Syed Akbar Syed Nooroddin Jahagirdar Vs. Syed Abdul Haq Syed Nooroddin Jahagirdar & Ors., 2008(3) Bom.C.R. 860 : [2007(5) ALL MR 590] have taken a view that amended provisions are not applicable only to the pleadings which are filed prior to amendment came in to force. He therefore submits that since written statement in the present case is admittedly filed after 1.7.2002 it would be governed by the amended provisions of CPC and as such no interference is warranted with the order passed by the learned trial Court. The learned counsel relies on the judgment of Full Bench of Madras High Court in the case of M/s. Hi Sheet Industries Vs. Litelon Ltd. & Ors., AIR 2007 Mad. 78 (Full Bench) and also of learned Single Judge of the same Court in the case of Rethinam Vs. Syed A. Rahim (2005)3 Mh.L.J. 94 taking similar view. The learned counsel further submits that since in the present case amendment is sought to be made after commencement of trial it would not be permissible unless condition specified in the proviso of Order 6, Rule 17 are satisfied. Reliance in this respect is placed on a judgment of the Apex Court in the case of Vidyabai & Ors. Vs. Padmalatha & Anr., AIR 2009 SC 1433 : [2009(1) ALL MR 471 (S.C.)] and judgment of the learned single Judge of this Court in the case of Badrinarayan Bansilal Somani Vs. Vinodkumar K. Shah, 2003(2) Mh.L.J. 120 : [2003(2) ALL MR 1040]. Learned counsel further submits that when a statute is capable of giving its meaning by literal interpretation, such an interpretation cannot be avoided only because it may result in harsh consequences. Reliance is placed on a judgment of the Apex Court in the case of Nasiruddin & Ors. Vs. Sita Ram Agarwal, (2003)2 SCC 577.

6. Shri. Dani, learned counsel appointed as amicus curiae, submits that if section 16 of Amendment Act, 2002 is read as whole and the clauses thereof are read in harmony with each other, it would reveal that the matters which have been saved by clauses (a) and (b) of sub-section 2 have been saved without prejudice to the generality of provisions of section 6 of General Clauses Act, 1897. Learned amicus curiae submits that in view of section 6 of General Clauses Act upon repeal of any enactment unless intention appears to be otherwise, the repeal shall not affect any right, privilege, obligation or liability, acquired accrued or incurred under any enactment so repealed. Learned amicus curiae submits that rights of the parties are crystallized on the date of institution of the suit. In this respect learned amicus curiae has relied on the judgment of the Apex Court in the case of Garikapati Veeraya Vs. N. Subbiah Choudhry, AIR 1957 SC 540. He therefore submits that in view of provisions of sub-section (2) of section 16 of the Amendment Act, 2002 read with section 6 of the General Clauses Act, the suits which are filed prior to 1.7.2002 would be saved from the applicability of the amended provisions of Order 6, Rule 17 of CPC. He submits that even in the absence of clause (b) of sub-section (2) suits filed prior to date on which the amendment came into effect would be saved from applicability of amended provisions of Order 6 Rule 17. He submits however the Legislature, by inserting clause (b) has clarified the position by stating therein that amended provisions would not be applicable to the pleadings filed before the amendment of section 16 of CPC. Learned counsel further submits that two learned Single Judges of this Court in the cases of M. Sagar s/o. Chainnayya Vs. Saud Akhtar Khan s/o. late Abdul Hamid Khan, 2004(2) ALL MR 384 (S. A. Bobde, J.) and Ujawala Athare (Patil) Vs. Asha Ravindra Paranjape, 2004(2) Mh.L.J. 1126 (Dr. D. Y. Chandrachud, J.) while interpreting the provisions of amended Order 8 Rule 1 of CPC have taken a view that though the words used in section 15(4) of the Amendment Act, 2002 provide that amended provisions of Order 8 shall not apply to written statement filed and presented before the commencement of Amendment Act, 2002, upon harmonious interpretation of the provisions the amended provisions would not apply only to the suits where written statement is filed prior to the date on which amendment has come into effect but also to the suits filed prior to the date on which the amendment has come into effect. Learned counsel therefore submits that applying the same principles, it will have to be held that though the word used in clause (b) of sub-section (2) of section 16 is 'pleading', it will have to be held that amended provisions of Order 6 Rule 17 would not be applicable to the suits filed prior to 1.7.2002. Learned counsel further submits that the view taken by Shinde J. and Deshmukh J. does not notice provisions of sub-Section (2) of section 16 of the Amendment Act, 2002 so also the judgments of the Apex Court in the cases of State Bank of Hyderabad [2007 ALL SCR 18] and Sumesh Singh (supra) and will therefore have to be held as per incuriam.

7. The provisions of Order 6 Rule 17 have been amended by Amendment Act, 2002. The amended provisions now read thus:

"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

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 mater before the commencement of trial."

Section 16 of the Amendment Act, 2002 deals with repeal and savings. Relevant clauses of said section read thus:

"16. Repeal and savings. - (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897,-

(a) xxxx xxxx xxxxxxx xxxxxx xxxx xxxxxx.

(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 Code of Civil Procedure (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 Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act;

(c) xxxxx xxxxx xxxxx xxxxx xxxxx xxxxxx."

It would also be necessary to consider the provisions of section 6 of General Clauses Act, 1897 which reads thus:

"6. Effect of repeal.- Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

8. Sub-section (2) of section 16 of the Amendment Act, 2002 provides that notwithstanding that the provisions of said Act have come into force or repeal under sub-section (1) has taken effect and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 the amended provisions shall not apply in respect of any pleadings filed before commencement of section 16 of CPC (Amendment) Act, 1999 and section 7 of the Amendment Act, 2002. It can thus be clearly seen that what has been saved by clause (b) of sub-section (2) is without prejudice to the generality of provisions of section 6 of the General Clauses Act, 1897. The intention of the Legislature is thus clear. What has been saved under clause (b) of sub-section 2 in so far as provisions of Order 6 are concerned is without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897. It would thus clearly reveal that the provisions of section 6 of the General Clauses Act, would be relevant to determine as to whether amended provisions are not applicable only to the pleadings filed before the amendment came into effect or to a suit filed before the said date.

9. Section 6 and particularly clause (c) thereof would reveal that when an enactment is repealed, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. The Apex Court in the case of M/s. Ambalal Sarabhai Enterprises Ltd. V. M/s. Amrit Lal & Co., AIR 2001 SC 3580 has held that in fact where a lis commences all rights and obligations of the parties get crystallized on that date. The Apex Court in the case of Garikapati Veeraya, cited supra, while considering the question as to when right of appeal accrues to a litigant has held that the said right exists as on and from the date of commencement of suit and although it may be actually exercised after the adverse judgment is pronounced, such right is to be governed by law prevailing on the date of institution of suit or proceedings and not by law that prevails on the date of its decision or on the date of filing of it. It has been further held that thus vested right of appeal can be taken away only by subsequent enactment if it so provided expressly or by necessary implication and not otherwise. It can thus be seen that the rights or liabilities of the parties would be governed as per the law existing on the date of institution of the suit.

10. The Apex Court while considering the purport of section 6 of the General Clauses Act, 1897 in the case of State of Punjab Vs. Mohar Singh, AIR 1955 SC 84 observed thus:

"Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create vested right. To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on to dispense with the necessity of having to insert a saving clause on each occasion, S.38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well known, is on the same lines as S.38(2) of the Interpretation Act of England." (emphasis supplied)

The Apex Court again in the case of Ambalal Sarabhai Enterprises Ltd. Vs. Amritlal & Co. & Anr. (2001)8 SCC 397 had an occasion to consider the scope of section 6 of the General Clauses Act, 1897 wherein it has observed thus:

"25. As a general rule, in view of S.6, repeal of an statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words such repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties gets crystalised on that date. The mandate of S.6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. We find Clause (c of S.6, refers the words "any right, privilege, obligation acquired or accrued" under the repealed statute would not be affected by the repealing statute. We may hasten to clarify here mere existence of a right not being 'acquired' or 'accrued', on the date of the repeal would not get protection of S.6 of the General Clauses Act. (emphasis supplied)

After considering various judgments on the issue the Apex Court further observed thus:

"34. Thus we find that Section 6 of the General Clauses Act covers a wider field and saves a wide range of proceedings referred to in its various clauses. We find two sets of cases, one where Section 6 of the General Clauses Act is applicable and the other where it is not applicable.

35. In cases where Section 6 is not applicable, the courts have to scrutinize and find whether a person under a repealed statute had any vested right. In case he had, then pending proceedings would be saved. However, in cases where Section 6 is applicable, it is not merely a vested right but all those covered under various clauses from (a) to (e) of Section 6. We have already clarified that right and privilege under it is limited to that which is "acquired" and "accrued". In such cases pending proceedings is to be continued as if the statute has not been repealed." (emphasis supplied)

It can thus clearly be seen that since sub-section (2) of section 16 specifically uses the words "and without prejudice to the generality of the provision of section 6 of the General Clauses Act, 1897", not merely a vested right but all those covered under various clauses from (a) to (e) of section 6 of the said Act would be saved. It has been held that in such cases pending proceedings are to be continued as the statute had not been repealed.

11. Learned Single Judge of this Court (Bobde, J.) in the case of Sagar s/o. Chainnayya [2004(2) ALL MR 384] (supra) had an occasion to consider the question as to whether in view of the words used in section 15(iv) of the Amendment Act, 2002 whether the amended provisions of Order 8, Rule 1 would be not applicable to a suit where a written statement was filed prior to the date on which the Amendment Act, 2002 came into effect or to a suit which is filed prior to that date. The learned Judge observed thus:

"32. According to learned counsel, the effect of repeal and saving clauses is not merely that it saves written statements filed and presented before the commencement of Amendment Acts. It also, but by virtue of sub-section (2) above, which provides that the provisions of amending Act take effect "without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897", saves pending suits from its application. It is therefore, necessary to take note of sub-section (2) of Section 32 of the Amendment Act, 1999 along with clause (1). Together, they read as follows:

"(2) Notwithstanding that the provisions of this Act have came into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1879)."

"(l) the provisions of rules 1 and 1-A of Order 8 of the First Schedule, as substituted or inserted by section 18 of this Act, shall not apply to a written statement filed and presented before the Court immediately before the commencement of section 18;"

33. On a true construction of the provision it appears that the only thing that is saved by the aforesaid clause is a written statement filed and presented before the Court before the commencement of the reenacted provision before 1.7.2002. This does not ipso fact mean that the amended provision applies to proceedings n which a written statement is not filed. It is clear from sub-section (2) reproduced above that the words in the repeal and saving clauses "without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897."

"34. It is therefore, necessary to see the consequence of the provisions such as this, in V. T. Khanzode and others Vs. Reserve Bank of India and another reported in (1982)2 Supreme Court Cases 7, the Supreme Court has observed as follows:

"It is well-settled that where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict the width of the general power."

35. Therefore, in my view though the provision specifically saves written statement already filed and presented before the Court, it does not follow that the amending Act applies to pending proceedings in which written statement which have not been filed. The question whether the Amendment Act apply, needs to be decided in accordance with Section 6 of the General Clauses Act, 1897, the application of which is expressly provided for, in its generality. Thus, applying section 6 of General Clauses Act, it appears that a party-defendant who is undoubtedly conferred with a right to file written statement prior to amending Act must be taken to have that right in the manner in which it was conferred. Undoubtedly, the Parliament has power to take away that right but the question is whether it has done so by the Amendment Act. This question must be answered by repeal and saving clauses which provides for the application of Section 6 of the General Clauses Act in its generality."

12. The learned Judge answers the question as under:

"44. Having regard to the law laid down above and with particular reference to clause (iv) from the decision in Hitendra Vishnu Thakur Vs. State of Maharashtra, I am of view that Order 5 and Order 8 which must be read together are not intended by Parliament to apply to pending suits i.e. suits instituted prior to 1.7.2002." (emphasis supplied)

13. Another learned Single Judge of this Court (Dr. D. Y. Chandrachud, J.) in the case of Ujwala Athare (Patil) (supra) had also an occasion to consider the same issue. The learned Judge also after considering relevant provisions has taken a view that the amended provisions of Order 8, Rule 1 would not be applicable to the proceedings pending on the date on which the Amendment Act, 2002 to CPC came into effect.

14. The Apex Court in the case of State of Hyderabad [2007 ALL SCR 18] (supra) after reproducing the provisions of section 16(2) of the Amendment Act, 2002 in para 7 observed in para 8 thus:

"8. In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order 6, Rule 17 of the Code shall not apply."

The Apex Court in the case of Sumesh Singh (supra) has further observed thus:

"12. By reason of section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, the amendments carried out therein shall only apply to in respect of the suits which were filed thereafter. (Seen State Bank of Hyderabad Vs. Town Municipal Council (2007)1 SCC 765). As the suit had been filed in the year 1999, the proviso appended to Order 6, Rule 17 shall not apply."

It can therefore be seen that the Apex Court after considering the provisions of section 16 of the Amendment Act of 2002 has held that there cannot be any doubt that the amendments carried out by the Amendment Act, 2002 shall apply only in respect of suits which were filed thereafter. In view of this clear pronouncement by the Apex Court, there cannot be any scope for any other interpretation other than that the amended provisions of CPC would only be applicable to suits instituted after the Amendment Act, 2002 was brought into effect.

15. The Apex Court in the case of Smt. Rani Kusum Vs. Smt. Kanchan Devi & Ors., (2005)6 SCC 705 : [2006(1) ALL MR (S.C.) 63] observed thus:

"10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

11. The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.

12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in the judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. (See Sushil Kumar Sen Vs. State of Bihar).

13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth Vs. Blyth). A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath Vs. Rajesh.)"

16. In my considered view the narrow interpretation as sought to be placed by the learned counsel for the respondents on the provisions of section 16 that only the pleadings are saved from the amended provisions of Order 6, Rule 17, would not be in tune with the principles of interpretation and intention of the legislature. As has been discussed hereinabove since what is saved under clause (b) is "without prejudice to the generality of the provisions of section 6 of General Clauses Act, 1897", what has been stated in clause (b) will have to be construed as only illustrative and it cannot be construed in a manner which will restrict the width of what has been generally saved under clause 6 of the General Clauses Act, 1897. As has been held by the Apex Court, rights and the liabilities of the parties would be crystallized on the date of institution of the suit and as such in view of provisions of section 6 of General Clauses Act and specifically clause (c) thereof, the pending proceedings would be saved unless the Legislature specifically intends otherwise. In my considered view upon harmonious construction of section 16 of Amendment Act, 2002 with section 6 of the General Clauses Act it cannot be said that the Legislature has intended to give a narrower meaning to save only pleadings and not the proceedings. As held by the Apex Court in the case of Ambalal Sarabhai Enterprises Ltd. (supra) it will have to be held that pending proceedings on the date on which the Amending Act came into effect are to be continued as if the statute has not been repealed.

17. In so far as the judgments of the learned Single Judges of this Court on which the learned counsel places reliance are concerned the same do not take into consideration the words "without prejudice to the generality of provisions of section 6 of the General Clauses Act, 1897" and also judgment of the Apex Court in the cases of State Bank of Hyderabad [2007 ALL SCR 18] and Sumesh Singh (supra) and therefore will have to be held as not laying down correct position of law.

18. In so far as the judgment of the learned Single Judge of this Court in the case of Badrinarayan Bansilal Somani [2003(2) ALL MR 1040] (supra) is concerned the same would not be applicable to the facts in the present case in as much as in the said case written statement in fact was filed prior to 1.7.2002.

19. In so far as various cases of the Apex Court on which the learned counsel for the respondent relies on are concerned, there can be no quarrel that when the words used in the statute are capable of giving their meaning by strict or literal interpretation no other principle of interpretation is to be adopted. However as already discussed hereinabove the harmonious construction of section 16 of the Amendment Act read with section 6 of the General Clauses Act, 1897, would clearly make out the intention of the Legislature that amended provisions are not intended to be made applicable to the suits filed prior to 1.7.2002.

20. Considering the merits of the matter, it can be seen that apart from rejecting the application on the ground of applicability of provisions of Order 6, Rule 17 of CPC, the learned Judge has found that the amendment was not necessary in as much as the averments which are sought to be put on record were already raised in the written statement.

21. It can be clearly seen from the proposed amendment, that by the amendment the petitioners were not trying to make out any new case but only amplifying the case as pleaded in the written statement and the counter claim. It is a settled principle of law that the Courts have to be more liberal in granting amendment to the written statement. In that view of the matter I find that even on merits also the learned Judge has erred in rejecting the application for amendment.

22. In the result, it is held that the amended provisions of Order 6, Rule 17 of CPC would not be applicable to the suits which are filed prior to the date on which the amendment to CPC was brought into effect i.e. 1.7.2002. In that view of the matter learned trial Court has erred in rejecting the application on that ground. Even on merits I find that the learned trial Judge has erred in rejecting the application. I find that in the interest of justice it ought to have allowed the application for amendment. Hence the petition is allowed. Rule is made absolute in terms of prayer clause (a).

23. Before parting with the judgment I must place on record my appreciation for the assistance rendered by Shri. Samdani and Shri. Ganoo, learned counsel appearing for the parties. However, I will be failing in my duty, if I fail to mention Shri. Dani who graciously accepted to assist the Court as amicus curiae and has rendered valuable assistance to the Court.

24. At this stage, the learned counsel for the respondent No.1 requests that taking into consideration that the suit is of the year 1999, the trial of the suit be expedited.

25. The request made by the learned Counsel is reasonable. The hearing of the suit is expedited and the learned trial Court is directed to dispose of the suit in any event within a period of one year from today.

Ordered accordingly.