2013(7) ALL MR 617
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.M. KHANWILKAR AND R.Y. GANOO, JJ.

Itc Limited Vs. Canara Bank & Ors.

Writ Petition No. 5702 of 2010

6th December, 2012

Petitioner Counsel: Mr. N.H. Seervai,Mr.Ranbeer Singh,Anupam Surve,Vinayak Vengurlekar,Crawford Bayley & Co.
Respondent Counsel: Mr. Pradeep Sancheti,Mulla,Mulla

(A) Civil P.C. (1908), O.6 R.17 - Limitation Act (1963), S.3, Art.137 - Amendment of plaint - Amendment pertaining to certain facts newly emerged in suit - Provisions of S.3 and Art.137 of Limitation Act would not apply. (Para 29)

(B) Civil P.C. (1908), O.6 R.17 (As amended in 2002) - Amendment of plaint - After commencement of trial - Restriction - Held, restriction imposed by 2002 Amendment would apply to the suits filed after said Amendment Act - Not applicable to the suit filed in 1994, even though amendment of plaint sought in 2005. (Para 30)

(C) Civil P.C. (1908), S.151 - Revisional jurisdiction - Exercise of - Challenge raised against two orders of 2005 and 2006 allowing amendment in plaint and inspection of documents - Said orders are interlocutory in nature - Petitioners did not move appropriate forum - Rather, filed misc. application in 2009, leveling unsubstantiated allegations of fraud played on court - Held, said application is filed at a belated stage only to protract trial - Dismissal, proper. (Paras 33, 34)

Cases Cited:
S.P. Chengalvaraya Naidu Vs. Jagannath & Ors., 1994(1) SCC 1 [Para 11,28]
MCD Vs. State of Delhi & Another, 2005 ALL MR (Cri) 2294 (S.C.)=(2005) 4 SCC 605 [Para 11,28]
A.V. Papayya Sastry and Ors. Vs. Govt. of A.P. and Ors., 2007 ALL SCR 1363 : (2007) 4 SCC 221 [Para 11,28]
S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Ors., 2004(5) ALL MR 793 (S.C.)=(2004) 7 SCC 166 [Para 11,28]
State of Maharashtra Vs. Ramdas Shrinivas Nayak and Anr., (1982) 2 SCC 463 [Para 15]
Jagvir Singh & ors. Vs. State (Delhi Admn.), 2007 ALL MR (Cri) 2019 (S.C.)=(2007) 5 SCC 359 [Para 15]
Salem Advocate Bar Association T.N. Vs. Union of India, 2005(5) ALL MR 876 (S.C.)=(2005) 6 SCC 344 [Para 16,30]
V.C. Shukla Vs. State through C.B.I., 1980 SCC (Cri) 695 [Para 22,33]
Surya Dev Rai Vs. Ram Chander Rai & Ors., 2003(4) ALL MR 761 (S.C.)=(2003) 6 SCC 675 [Para 23,33]
Satyanarayan Hegde & Ors. Vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 [Para 24]
State Bank of Hyderabad Vs. Town Municipal Council, 2007 ALL SCR 18 : (2007) 1 SCC 765 [Para 30]


JUDGMENT

R.Y. GANOO, J. :- Rule.

2. Rule made returnable forthwith. Learned Senior Counsel Mr. Pradeep Sancheti waives service on behalf of respondent nos.1 to 6. Presence of respondent nos.7, 8 and 9 is not necessary to hear and dispose of this petition finally.

3. By consent, petition is taken up for final hearing.

4. In this petition, the petitioner has prayed that the order dated 18.3.2010 in Misc. Civil Application No.142 of 2009 passed by the Special Court constituted under the Special Court (Trial of Offences relating to The Transactions in Securities) Act, 1992 (For short Special Court) be quashed and set aside. In terms of prayer clause (b) it is prayed that order dated 10.10.2005 passed by the Special Court constituted under the Special Court in Chamber Summons No.2 of 2005 and Order dated 26.6.2006 passed by the very Special Court in Chamber Summons No.6 of 2006 in Suit No.5 of 2002 be set aside.

5. Few facts necessary for the purpose of disposal of this writ petition are as under:

The present respondent nos.1 to 6 filed original Suit No.4169 of 1994 on the original side of this Court for diverse prayers concerning 894705 shares in the erstwhile company by name ITC Bhadrachalam Paper Boards Ltd. The said suit was transferred to the Debt Recovery Tribunal for decision. On account of creation of the Special Court, the proceedings then pending in the Debt Recovery Tribunal were retransferred to the Special Court for decision in accordance with law and was re-numbered as Suit No.5 of 2002 (Special Court). In the said suit, the present respondent no.7 was original defendant no.1. Present respondent nos.1 to 6 were the plaintiffs. The present respondent no.8 is the official assignee of the estate of Mr. Pallav Seth. Said Mr.Pallav Seth was defendant no.2 in the said suit. The petitioner were impleaded as defendant no.4 and present respondent no.9 was impleaded as defendant no.5.

6. The respondent nos.1 to 6 took out Chamber Summons No.2 of 2005 for amendment of the plaint. This amendment was sought by the respondent nos.1 to 4 to bring on record the fact that the transaction of funding between original defendant nos.1, 2 and 4 was false and not a real transaction and the said transaction was put forth as a disguise to the transaction of purchase of 8 lakh shares by the Respondent Nos.1 to 6. Significantly, the present petitioner had not filed an affidavit in reply to the aforesaid Chamber Summons. The learned Special Judge then attending to the said Chamber Summons granted the same by order dated 10.10.2005. The plaint was amended as per the schedule to the Chamber Summons.

7. Respondent nos.1 to 6, on or about 8.6.2006 took out Chamber Summons No.6 of 2006 praying that the petitioner as defendant no.4 be ordered and directed to disclose the documents set out in Annexure I to the said Chamber Summons. The respondent nos.1 to 6 sought inspection of the documents set out in Annexure I and photostat copies of the said documents. This Chamber Summons was allowed by order dated 26.6.2006 and both the aforesaid prayers were granted.

8. Respondent nos.1 to 6, thereafter took out Chamber Summons No.2 of 2008 for striking of defence of the petitioner. By order dated 18.3.2010 the said Chamber Summons No.2 of 2008 was dismissed.

9. The petitioner i.e. the original defendant no.4, under Section 151 of the Code of Civil procedure took out Misc. Application No.142 of 2009 in August 2009 and prayed the order dated 10.10.2005 passed by this Court in Chamber Summons No.2 of 2005 and order dated 26.6.2006 passed in Chamber Summons No.6 of 2006 in the Suit No.5 of 2002, are non-est in law, and that the Chamber Summons No. 2 of 2008 having been taken out in furtherance of those two chamber summons are also invalid and non-est. The petitioner by prayer clause (b) also prayed that the Respondent Nos.1 to 6 have abused the process of this Hon'ble Court by fraudulently obtaining the above two orders dated 10.10.2005 and dated 26.06.2006 in Chamber Summons No.2 of 2005 and Chamber Summons No.6 of 2006 respectively and that the petitioner have disentitled themselves from seeking any relief in this Suit from this Hon'ble Court. So far as this prayer clause (b) of the Misc. Application No.142 of 2009, learned Senior Counsel Mr. Seervai, appearing on behalf of the petitioner had stated before the Special Court that the petitioner are not pressing the relief in terms of prayer clause (b) of the Misc. Application. Such an observation is found in paragraph 11 of order dated 18.3.2010 which is as follows: "Mr.Seervai, the learned Counsel appearing on behalf of the applicant submits that he does not press for relief claimed by Defendant no.4 in prayer clause (b) of the application."

10. The Special Court before whom this Misc. Civil Application No.142 of 2009 was filed, heard and decided the said Misc. Application. By Order dated 18.3.2010 the Special Court rejected the said application. As stated earlier, by this petition, the petitioner are praying that this Order dated 18.3.2010 be quashed and set aside in addition to the orders passed in Chamber Summons No.2 of 2005 and Chamber Summons No.6 of 2006.

11. Learned Senior Counsel Mr.Seervai, appearing on behalf of the petitioner has taken us through the entire record. He pointed out that while taking out the Chamber Summons No.2 of 2005, respondent nos.1 to 6 had made averments in the affidavit in support of the Chamber Summons in such a way, that they suppressed the report submitted by the police in the criminal case and mis-represented to the Special Court that the facts disclosed in the schedule of Chamber Summons came to their knowledge two days prior to taking out the chamber summons. According to learned Senior Counsel Mr. Seervai, the investigation report dated 30.3.1995 was submitted in 1995 itself and it was within the knowledge of the respondent nos.1 to 6. According to learned Senior Counsel Mr. Seervai, the respondent nos.1 to 6 had the notice of the contents of the said report and while obtaining the orders dated 10.10.2005 and 26.6.2006, they suppressed the fact that they had known about the transaction which is sought to be brought on record by amendment and that his how the respondent nos.1 to 6 practiced fraud on the court and that is how the orders were secured by the respondent nos.1 to 6. Learned Senior Counsel Mr. Seervai, therefore, submitted that if respondent nos.1 to 6 have secured impugned orders by practicing fraud on the Special Court, said orders cannot be sustained. In support of this proposition, he relied on the following judgments:

i) S.P. Chengalvaraya Naidu vs. Jagannath & Ors. reported in 1994(1) SCC 1.

ii) MCD vs. State of Delhi & Another, reported in (2005) 4 SCC 605 : [2005 ALL MR (Cri) 2294 (S.C.)].

iii) A.V. Papayya Sastry and Ors. vs. Govt. of A.P. and Ors. reported in (2007) 4 SCC 221 : [2007 ALL SCR 1363].

iv) S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and Ors. reported in (2004) 7 SCC 166 : [2004(5) ALL MR 793 (S.C.)].

12. Learned Senior Counsel Mr. Seervai took us through the order dated 18.3.2010 and submitted that the view taken by the Special Court that the amendment was necessary to replicate the facts stated in the written statement of defendant no.4, filed in 2002 is not correct and that taking such a view is an error apparent on the face of the record. He further submitted that the respondent nos.1 to 6 have falsely contended that the amendment sought was necessary in order to disprove the contentions raised by the petitioner in their written statement. According to him, when the alleged contentions of the petitioner in relation to "Pledge Transaction" were known to respondent nos.1 to 6, 10 years back on the basis of the report dated 30.3.1995, then the aforesaid stand taken by the respondent nos.1 to 6 was untenable. It was submitted by learned Senior Counsel Mr. Seervai that respondent nos.1 to 6 deliberately did not annex the report in order to see that the Court does not come to know the date on which the report was available to respondent nos.1 to 6.

13. Learned Senior Counsel, Mr. Seervai further submitted that according to the petitioner the real purpose of amendment was to set up a new case against the petitioner and plead that the petitioner cannot and ought not to be permitted to rely upon the funding transaction to claim title to the said shares. It was submitted by learned Senior Counsel Mr. Seervai that the respondent nos.1 to 6 dishonestly, fraudulently and by suppressing correct facts sought to use "the filing of the written statement of the petitioner as an opportunity to better their case".

14. Learned Senior Counsel Mr. Seervai further submitted that the order dated 10.10.2005 proceeds on the footing that two days prior to the filing of the Chamber Summons, respondent nos.1 to 6 came to know about the relevant facts on the basis of which Chamber Summons No.2 of 2005 was taken out. He submitted that respondent nos.1 to 6 claim that they were not knowing the facts at the time of filing of the suit whereas in the affidavit in support of the Chamber Summons No.2 of 2005 taken out by the respondent nos.1 to 6, respondent nos.1 to 6 have admitted that they came to know the relevant facts during the course of investigation of criminal complaint. According to learned Senior Counsel Mr. Seervai, the explanation for belated filing of Chamber Summons is based on falsehood amounting to fraud on the Special Court. According to him, on this count, the reliefs sought by the respondent nos.1 to 6 should not have been granted by the learned Special Court in favour of Respondent Nos.1 to 6.

15. Learned Senior Counsel Mr. Seervai further took us through the text of the order dated 10.10.2005 where it is observed as follows " the plaintiff further alleges in the affidavit in support of the Chamber Summons that the plaintiffs came to know about these facts only recently i.e. two days prior to the filing of the Chamber Summons and therefore he seeks amendment". Learned Senior Counsel Mr. Seervai submitted that if according to respondent nos.1 to 6 this observation made by the Special Court while deciding Chamber Summons No.2 of 2005 was incorrect, it was necessary for the respondent nos.1 to 6 to take steps to correct order dated 10.10.2005. He submitted that such a correction should have been done by the very Special Court who passed the order dated 10.10.2005. In support of this submission, he relied upon the judgment in case of:

(i) State of Maharashtra vs. Ramdas Shrinivas Nayak and Anr., reported in (1982) 2 SCC 463

(ii) Jagvir Singh & ors. vs. State (Delhi Admn.) reported in (2007) 5 SCC 359 : [2007 ALL MR (Cri) 2019 (S.C.)].

According to him taking no steps to correct the order dated 10.10.2005 speaks volumes about the conduct of the respondent nos.1 to 6 and that they are bound by the statement so recorded.

16. Learned Senior Counsel Mr. Seervai took us through the proviso to Order VI Rule 17 of Code of Civil Procedure as amended by Act No.22 of 2002 being an amendment to the Code of Civil procedure. He submitted that the amendment could be granted if the Court comes to the conclusion that despite due diligence the party could not have raised the matter before the commencement of the trial. It was submitted by learned Senior Counsel Mr. Seervai that in view of the judgment in the case of Salem Advocate Bar Association T.N. vs. Union of India reported in (2005) 6 SCC 344 : [2005(5) ALL MR 876 (S.C.)], the proviso curtails the discretion available to the Judge to allow amendment at any stage and if the application is filed after commencement of the trial it is to be shown by the plaintiffs that inspite of due diligence, said amendment could not have been applied for earlier. He submitted that the court was wrong in accepting the explanation for delay in taking out the chamber summons, particularly when the trial had commenced and the respondent nos.1 to 6 had notice of the various facts which were sought to be brought on record by amendment.

17. Learned Senior Counsel Mr. Seervai submitted that respondent nos.1 to 6 have sought to introduce /incorporate a case disputing the title of the petitioner in respect of the shares in question by assailing the funding transaction. According to him, the amendment sought in Chamber Summons No.2 of 2005 was time barred as per the provisions of Section 3 and Article 137 of the Limitation Act, 1963. According to him, the petitioner could not argue at the time of hearing of the Chamber Summons No.2 of 2005 that the amendment was time barred on account of the fraud practiced by the respondent nos. 1 to 6 on the Court. He submitted that the learned Special Court erred in rejecting the stand of the petitioner that cause of action for amendment was the police report and not content of written statement filed by defendant no.4. He further submitted that the Special Court erred in noting this as additional justification for the amendment. Learned Senior Counsel Mr. Seervai further submitted that the order dated 18.3.2010 in Misc. Application No.142 of 2009 is contrary to the order dated 18.3.2010 in Chamber Summons No. 2 of 2008 decided by the very Special Court. He also submitted that the finding rendered by the Special Court that Misc. Civil Application is filed belatedly is contrary to the record.

18. Based on the aforesaid submissions, learned Senior Counsel Mr. Seervai prayed that the writ petition be allowed.

19. Mr. Pradeep Sancheti, learned Senior Counsel appearing on behalf of the respondent nos.1 to 6 supported the orders dated 18.3.2010, 10.10.2005 and 26.06.2006 respectively. He pointed out that it was not open for the petitioner to take out Misc. application so as to have order dated 10.10.2005 quashed as the petitioner were well aware of order dated 10.10.2005 and that the petitioner did not file any proceeding challenging the said order. Same argument was advanced in so far as order dated 26.6.2006 passed in Chamber Summons No.6 of 2006.

20. Mr. Pradeep Sancheti, learned Senior Counsel for respondent nos.1 to 6 submitted that the present petitioner had not filed affidavit in reply to the Chamber Summons No. 2 of 2005 thereby raising various contentions. According to him, in the absence of affidavit in reply to the Chamber Summons No. 2 of 2005 the petitioner are estopped from raising various grounds as regards order dated 10.10.2005. He submitted that the Special Court, while deciding the Chamber Summons No.2 of 2005 considered the case of respondent nos.1 to 6 as set out in the affidavit in support of the Chamber Summons and exercised the discretion in favour of respondent nos.1 to 6 and granted amendment. According to him, the Special Court before whom the Misc. Application No.142 of 2009 was filed has considered all the aspects and has rightly rejected the contentions raised in Misc. Application No.142 of 2009 and that is how the order dated 18.3.2010 was passed in a way confirming the order dated 10.10.2005. Same submission was advanced in so far as order dated 26.6.2006 passed by the earlier Special Court in Chamber Summons No.6 of 2006. According to him, the Special Court, having granted both the Chamber Summons and having rejected the stand of the petitioner in the Misc. Application No.142 of 2009, there is a concurrent finding in favour of the respondent nos.1 to 6 and this Court in exercise of writ jurisdiction should not interfere therewith.

21. On the point of limitation raised by the petitioner, Mr. Pradeep Sancheti, learned Senior Counsel, submitted that the question of limitation was not raised by the petitioner before the Special Court while arguing Chamber Summons No.2 of 2005, before the Special Court. According to him, it is not now open for the petitioner to raise the question of limitation. He submitted that, even otherwise the provisions of Section 3 and Article 137 of the Limitation Act, 1963 cannot be applied to determine whether taking out the chamber summons in the year 2005 was beyond the period of limitation. According to him, the chamber summons was granted considering all the facts and the law involved and the said order was confirmed by the Special Court by deciding Misc. Application No.142 of 2009 in favour of respondent nos.1 to 6. He, therefore, submitted that the point of limitation should be rejected.

22. Mr. Pradeep Sancheti, learned Senior Counsel relied upon the judgment in the case of V.C. Shukla vs. State through C.B.I. reported in 1980 SCC (Cri) 695. He had drawn our attention to para 20 of the said judgment to submit that the orders dated 10.10.2005, 26.6.2006 and 18.3.2010 are interlocutory orders and are passed by the Special Court itself and that the said orders have been passed after considering the record. He, therefore, submitted that the orders impugned in this writ petition are interlocutory orders and should not be interfered with.

23. Mr. Pradeep Sancheti, learned Senior Counsel appearing on behalf of the respondent nos.1 to 6 also relied upon the judgment in the case of Surya Dev Rai v.s Ram Chander Rai & Ors. reported in (2003) 6 SCC 675 : [2003(4) ALL MR 761 (S.C.)]. He took us through para 38 and by relying upon the said judgment he submitted that this court should not interfere in the impugned orders in exercise of writ jurisdiction.

24. Mr.Pradeep Sancheti, learned Senior Counsel, also relied upon the judgment in case of Satyanarayan Hegde & Ors. vs. Mallikarjun Bhavanappa Tirumale reported in AIR 1960 SC 137. He read to us para 17 of the said judgment to point out as to what does not constitute an error apparent on the face of record. By relying upon the aforesaid judgment he submitted that the contention of the petitioner that while passing orders impugned in this petition, the Special Court committed error apparent on the face of the record should not be accepted. Lastly, he submitted that orders impugned in this petition have been properly passed and therefore no interference is required in the said order and that the petition is required to be dismissed with costs.

25. We have considered the entire record i.e. the pleadings in the suit, chamber summonses, and Misc. Application No.142 of 2009. We have also perused the various judgments relied upon by the respective Senior Counsel. Having considered the text of the plaint, as also the affidavit in support of Chamber Summons No.2 of 2005, it is clear that respondent nos.1 to 6 took out aforesaid chamber summons in view of averments made by the petitioner in their written statement which came to be filed on 19.7.2002. Surely, the respondent nos.1 to 6 thought it fit to take out the aforesaid chamber summons in order to put up their case about the stand which was taken up by the petitioner in their written statement. The respondent nos.1 to 6 have in their affidavit in support of the chamber summons clearly stated that respondent nos.1 to 6 had also filed criminal complaint in respect of the transaction governed by the present suit and that during the course of investigation by the police authorities, certain facts came to their light after the suit was filed. It is pertinent to note that the suit was filed in the year 1994, whereas the Investigation Report under Section 202 of Code of Criminal Procedure was filed in the year 1995. This will therefore support the stand of the respondent nos.1 to 6 that certain facts which surfaced in the course of investigation came to their knowledge only after the filing of the suit. A perusal of the affidavit in support of the chamber summons indicates that the respondent nos.1 to 6, after filing of the report did not move the court to amend the plaint, however, it is only when the present petitioner filed their written statement, the respondent nos.1 to 6 thought of amending the plaint. Reading the affidavit in support of the chamber summons it is clear that the transaction relating to suit shares between the original defendant nos.1 and 2 and the petitioner was not disclosed to respondent nos.1 to 6 by the petitioners and it is only when the said transaction was disclosed in terms of their written statement, respondent nos.1 to 6 thought of making their stand clear by seeking amendment of the plaint. Learned Special Judge has rightly observed in the order dated 18.3.2010 that the chamber summons No.2 of 2005 was taken out to replicate the averments made by the petitioner in their written statement. So far as the police report is concerned, it will have to be noted that the said police report was submitted to the concerned learned Special Judge in 1995 under Section 202 of Cr.P.C. and that the said report was not binding on any party as the said report could be used by the court attending to the said complaint for the purpose of deciding whether the process should be issued or not.

26. Learned Senior Counsel Mr. Seervai had highlighted the factum of fraud practiced by respondent nos.1 to 6 by relying upon the observations in para 2 of the order dated 10.10.2005 passed in Chamber Summons No.2 of 2005. The said observations are "The plaintiffs further alleges in affidavit in support of the chamber summons that the plaintiff came to know about these facts only recently i.e. two days prior to filing of the chamber summons and therefore he seeks amendment". We have perused the affidavit in support of the Chamber Summons No.2 of 2005. We could not note any assertion made by the respondent nos.1 to 6 that came to know about the facts referred to in the chamber summons came to their knowledge two days prior to filing of the chamber summons. It was submitted by learned Senior Counsel Mr. Seervai that respondent nos.1 to 6 through their Counsel, in the course of arguments must have stated that the respondent nos.1 to 6 came to know about the facts mentioned in the schedule of the chamber summons two days prior to taking out of the chamber summons. We are not inclined nor we must investigate now as to how the learned Special Court has mentioned the portion quoted above in para 2 of his order. In our view, it was not necessary for respondent nos.1 to 6 to move the learned Special Judge for correction of the said part of the order particularly because the chamber summons was granted and the amendment was carried out. Further, the petitioner did not challenge the said decision, which it could have. It is only now, perhaps, on the basis of renewed advise, the petitioner wants to reopen the correctness of the said decision by raising bogey of fraud played on the court by the plaintiffs.

27. We have perused the text of paragraph 3 of the affidavit dated 15.10.2008 filed in support of the Chamber Summons No.2 of 2008. The contents of the said affidavits were relied upon by the petitioner to claim that respondent nos.1 to 6 had practiced fraud upon the Court by not disclosing that they were aware of the various facts concerning suit shares on account of contents of the police report. We have gone through the affidavit dated 19.7.2005 filed in support of the Chamber Summons No.2 of 2005. In the said affidavit in para 3, the respondent nos.1 to 6 have stated as follows:

"I say that the plaintiffs had also filed a criminal complaint against the defendant nos.1 and 2 for cheating and forgery. I say that during the investigation of the Criminal Complaint the plaintiffs learnt that the Defendant no.4 had allegedly explained to the Police Authorities that the said Share Certificate of 8,00,000 was mortgaged by them with the Defendant Nos.1 and 2 to raise a loan in May 1991 and the same was subsequently returned to the defendant no.4 upon repayment of the alleged loan by the Defendant No.4 to the Defendant Nos.1 and 2. I say that the plaintiffs amended the plaint and brought these alleged transaction on the record. It is pertinent to note that in the first Written Statement the Defendant No.4 has stated that the said share certificate was always in its possession."

28. We are not inclined to accept the argument advanced by learned Senior Counsel Mr. Seervai that respondent nos.1 to 6 were fully aware of the developments concerning the said shares on the basis of the report and that they while taking out Chamber Summons No.2 of 2005 suppressed this fact. The respondent nos.1 to 6 have no doubt in para 3 of the affidavit in support of Chamber Summons No.2 of 2005 admitted that they came to know about certain facts in the course of investigation. Once it is noted that the amendment was necessary on account of the stand of the petitioner concerning the said shares, the stand of petitioner that respondent nos.1 to 6 practiced fraud on the court will have to be rejected. The learned Special Judge who decided the Misc. Application by order dated 18.3.2010 has taken a correct view of the matter. On this finding, the judgments in case of S.P. Chengalvaraya Naidu vs. Jagannath & Ors.,(supra) MCD vs. State of Delhi & Another [2005 ALL MR (Cri) 2294 (S.C.)] (supra) A.V. Papayya Sastry and Ors. vs. Govt. of A.P. and Ors. [2007 ALL SCR 1363] (supra) and S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and Ors. [2004(5) ALL MR 793 (S.C.)] (supra) would not be applicable to the facts of this case. It is required to be noted that since respondent nos.1 to 6 were the plaintiffs in the aforesaid suit, they were the best to judge as to what averments would suit their requirements ultimately to seek the decree in the suit. Even if it is accepted that the respondent nos.1 to 6 were knowing the various facts on account of the text of the report of police investigation, still the non mentioning of certain facts soon thereafter cannot be considered as objectionable conduct/ default on the part of the respondent nos.1 to 6. From the affidavit in support of the Chamber Summons No.2 of 2005 it is clear that it is only when the petitioner mentioned various facts in the written statement concerning the said shares, the respondent nos.1 to 6 thought it fit to amend the plaint ultimately to see that their case is strengthened for the purposes of getting a decree as prayed for.

29. We have perused the order dated 10.10.2005 passed in Chamber Summons No.2 of 2005. The learned Special Judge has positively mentioned in the said order that the petitioner have not filed affidavit in reply to Chamber Summons No.2 of 2005. If the petitioner chose not to file any affidavit in reply, nor challenged the order passed in the said chamber summons, the various points raised by the petitioner to object to the grant of Chamber Summons could not have been raised by taking out Misc. Application No.142 of 2009 by raising bogey of fraud played by the plaintiffs on court. It appears that in order to overcome events after grant of the Chamber Summons No.2 of 2005 the petitioner took out Misc. Application No.142 of 2009. The point of limitation raised by the petitioner in Misc. Application could have been raised by the petitioner in the course of hearing of the said chamber summons. The petitioner have not raised the said point of limitation. The Special Court which granted the said Chamber Summons has considered the various arguments which were raised before it by the petitioner and for reasons recorded in Order dated 10.10.2005, the said Chamber Summons was granted. The learned Special Judge attending to the Misc. Application has also considered all the points involved and has rejected the stand of the petitioner on the question of limitation. We have considered the text of the amendment as mentioned in the schedule to the Chamber Summons No.2 of 2005. A perusal of the same would go to show that the respondent nos.1 to 6 wanted to add the various paragraphs contained in the schedule to the chamber summons in order to strengthen their case. Similarly, the respondent nos.1 to 6 wanted to refute the case of the petitioner as stated in the written statement. It is pertinent to note that by said amendment no additional reliefs were sought. The learned Special Judge has, while passing the order dated 18.3.2010 arrived at a conclusion, after considering the text of the written statement and the text of the schedule of the chamber summons that, the chamber summons was taken out to refute the stand of the petitioner taken in the written statement. We are in agreement with this view taken by the learned Special Judge while passing the order dated 18.3.2010. In our view, the provisions of Section 3 and Article 137 of the Limitation Act, 1963 would not be applicable to the facts of this case inasmuch as, if certain paragraphs are to be added in the plaint to clarify the stand of plaintiffs on certain facts which have emerged in the suit, the provisions of Section 3 and Article 137 of the Limitation Act would have no application. The learned Special Judge deciding the Misc. Application has rightly rejected the contention of the petitioner that the amendment taken out by the respondent nos.1 to 6 was beyond the period of limitation. Apart from the aforesaid discussion, it is required to be noted that the petitioner filed a written statement on 19.7.2002 and took up a specific stand as contained in the written statement about the suit shares. It is to be noted that the Chamber Summons No.2 of 2005 was taken out in July 2005. The respondent nos.1 to 6 thought it appropriate to take out the said Chamber Summons No.2 of 2005 on account of the averments in the written statement which was filed in the year 2002. Hence, even if it is accepted that the provisions of Article 137 of the Limitation Act, 1963 are attracted, the respondent nos.1 to 6 have taken out the chamber summons within three years from the filing of the written statement.

30. We have noted the argument of learned Senior Counsel Mr.Seervai, based on the provisions of Order VI Rule 17 of Code of Civil Procedure as amended by Amendment Act of 22 of 2002. We have also perused the judgment in the case of Salem Advocate Bar Association vs. Union of India [2005(5) ALL MR 876 (S.C.)] (Supra). It is true that the Chamber Summons No.2 of 2005 was taken out after the trial had commenced. The Special Court which decided the Chamber Summons No.2 of 2005 as well as the Special Court which decided the Misc. Application have accepted the explanation as to why the chamber summons was required to be taken out after the trial had commenced. It is not possible to take a different view on the said point in this proceedings after having rejected the argument of any fraud played on the court. It is pertinent to note that the present suit was filed in 1994. The provisions of Order VI Rule 17 of Civil Procedure Code as amended by Amendment Act of 22 of 2002 would be applicable to the suits which are filed on or after the date when the Amendment Act 22 of 2002 came into force. The amendment application i.e. Chamber Summons No.2 of 2005 was filed concerning the suit which was filed in the year 1994 and therefore the arguments advanced by learned Senior Counsel Mr. Seervai based on the provisions of Order VI Rule 17 as amended by the Amendment Act of 22 of 2002 is rejected. This view is based on the judgment in the case of State Bank of Hyderabad v/s. Town Municipal Council reported in (2007) 1 SCC 765 : [2007 ALL SCR 18].

31. The Special Court passed order dated 26.6.2006 in Chamber Summons No.6 of 2006 directing the petitioner to disclose the documents mentioned in Annexure "1" to the Chamber Summons. Petitioner were directed to give inspection of the said documents and provide copies of the same to Respondent Nos.1 to 6. Perusal of order dated 26.6.2006 shows that the Special Court passed the order as it was of the view that the Respondent Nos.1 to 6 must get inspection of said documents and copies thereof in the interest of justice. Independent of view taken by Special Court while passing impugned order dated 18.3.2010 we are of the view that the Special Court has exercised its discretion in proper manner. The said order does not require any interference.

32. Having considered the order dated 10.10.2005 as well as the order dated 26.6.2006 in Chamber Summons No.6 of 2006 and in particular the order dated 18.3.2010 in Misc. Application No.142 of 2009, we are not inclined to accept the argument advanced by learned Senior Counsel Mr. Seervai that the Special Court which passed the later order has committed error apparent on the face of the record. In our view, the Special Court, while passing order has considered all relevant points and the material which was placed before it.

33. The order dated 10.10.2005 and 26.06.2006 were passed in the two chamber summons which were taken out by the respondent nos.1 to 6. A perusal of those orders show that the said orders are in the nature of interlocutory and discretionary orders. In view of the judgment cited by learned Senior Counsel Mr. Pradeep Sancheti in the case of V.C. Shukla vs. State (Supra), we are not inclined to interfere in the said orders. The petitioner knew the order dated 10.10.2005 as well as 26.06.2006. The petitioner did not make any grievance about the said orders till filing of the Misc. Application No.142 of 2009 and though the Misc. Application is styled as Application under Section 151 of the Code of Civil Procedure, the contents of the said application are in the nature of a review of orders dated 10.10.2005 and 26.06.2006. On account of the contents of the said application, the Special Court was persuaded to hear and dispose of the said application. The Special Court has dealt with the said application in detail and has passed an order dismissing the same. We are inclined to treat the order dated 18.3.2010 as an interlocutory order as the said order was passed by the very Judge who was to decide the main suit. In view of the exposition contained in judgment in the case of Surya Dev Rai [2003(4) ALL MR 761 (S.C.)] (supra), on which reliance was placed by learned Senior Counsel Mr. Pradeep Sancheti on behalf of respondent nos.1 to 6, we are not inclined to interfere in the said order in exercise of writ jurisdiction.

34. It is required to be noted that amendment to the plaint was granted as per order dated 10.10.2005 passed in Chamber Summons No.2 of 2005. The plaint was amended and the petitioner filed supplementary written statement on 27.1.2006. Chamber Summons No.6 of 2006 taken out for inspection of the documents was allowed on 26.6.2006. The petitioner did not challenge these two orders before the appropriate forum. However, was advised to file Misc. Application No.142 of 2009 leveling unsubstantiated allegations of fraud played on the court. A bare perusal of these relevant dates would go to show that the petitioner filed Misc. application definitely at a belated stage and only to protract the trial. The Special Court, while passing order dated 18.3.2010 has referred to this aspect in para 29 of the said order. We are not inclined to take a different view than the one which has been taken by the learned Special Judge on this point.

35. For the reasons mentioned aforesaid, we are inclined to hold that the writ petition is required to be dismissed.

36. Accordingly, the petition is dismissed with costs.

Petition dismissed.