Writ Petition No.584 of 2013

4th March, 2014

Petitioner Counsel: Mr. J.J. MULGAONKAR
Respondent Counsel: Mr. SAGAR DHARGALKAR, Mr. ANTHONY D'SILVA

Cases Cited:
Vidyabai and others Vs. Padmalatha and another, 2009(1) ALL MR 471 (S.C.) =AIR 2009 SC 1433 [Para 6,7]
Union of India and others Vs. Major General Madan Lal Yadav (Retd), (1996) 4 SCC 127 [Para 7]

JUDGMENT

JUDGMENT :- Heard. Rule. Rule made returnable forthwith. Heard finally by consent.

2. This petition is directed against an order passed on 18.03.2013, passed in Civil Suit No. 76/2010, by learned Ad-hoc District Judge-1, Panaji, thereby partly allowing the amendment application of the petitioners and partly rejecting the same.

3. The civil suit was filed by the petitioners against the respondents seeking various reliefs including the relief of mandatory injunction ante against the respondents. During the pendency of the suit, it was learnt by the petitioners that Section 4 notification under Land Acquisition Act for acquisition of suit property came to be issued by Government of Goa and it was also learnt in response to the query made by the petitioner under R.T.I. Act that respondent no. 4 was not a Government Contractor, who carried out the work at the suit property at the instance of the Government and therefore, the petitioners sought amendment to their pleadings by incorporating said events and also sought deletion of respondent no. 4, a party-defendant to the suit. It was also apprehended by the petitioners that Section 4 notification might not be taken to it's logical end and therefore, as a matter of precaution the petitioners thought it proper to make another prayer seeking mandatory injunction ante against the remaining respondents. Accordingly, the prayer clause was sought to be amended by the petitioners.

4. The amendment application was strongly opposed by the respondents by relying upon proviso to Order 6, Rule 17 of the Code of Civil Procedure. They submitted that hearing of the suit had already commenced as the issues were framed and the suit was fixed for recording of evidence and therefore, it was necessary for them to make out a case that amendments could not be made earlier inspite of due diligence on their part, and it was not made out. It was also submitted that in any case the suit property was going to be acquired for public purpose and when the acquisition would be complete, the suit itself would be rendered infructuous. Respondent no. 4, in addition, submitted that he was a necessary party to the suit as there were some adverse references made against him in the plaint and reliefs were sought as against the respondents in general. On these grounds, the respondents urged that the amendment application be rejected.

5. After hearing the rival submissions of the parties, the learned Ad-hoc District Judge-1, Panaji, partly allowed the application to the extent of incorporating of subsequent events in the nature of issuance of section 4 notification and rejected the prayer for incorporating the other amendment relating to seeking of relief of mandatory injunction ante and deletion of respondent no. 4 from the array of parties, by an order passed on 18.03.2013.

6. I have heard the learned Counsel for petitioners for respondents no. 1, 2 and 3 and for respondent no. 4. I would first like to consider the law governing the field which is stated in Order 6, Rule 17 of Civil Procedure Code and it is reproduced as under:

"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 inspite of due diligence, the party could not have raised the matter before the commencement of trial."

Above provision makes it clear that amendment of pleadings can be allowed at any stage of proceedings, subject to such terms and conditions as may be put by the Court. It also shows that if trial of suit has commenced, different considerations will apply for exercise of power under Order 6, Rule 17 of C.P.C., which is discretionary. In that case proviso to Rule 17, Order 6 of C.P.C. would control the power of Court to allow amendment of pleadings. In this regard, learned Counsel for respondents 1,2 and 3 has invited my attention to the decision of the Hon'ble Apex Court in the case of Vidyabai and others versus Padmalatha and another, reported in AIR 2009 SC 1433 : [2009(1) ALL MR 471 (S.C.)].

7. In the said case of Vidyabai, [2009(1) ALL MR 471 (S.C.)] (supra) the Hon'ble Apex Court has held that proviso to Order 6, Rule 17 of the Code of Civil Procedure has been framed in a mandatory form and it gives jurisdiction to the court in a limited manner. The Hon'ble Apex Court has held that the civil Court can allow the amendment application after the trial has commenced only when the condition prescribed in the proviso is satisfied. The condition is that Court must come to the conclusion that despite due diligence, the parties could not have raised the matter before the commencement of the trial. The Apex Court has also interpreted the meaning of expression "commencement of trial" and has observed that the date on which the issues are framed is the date of first hearing and filing of an affidavit in lieu of examination in chief of the witness is "commencement of proceeding". It has also made reference to the observations of another Bench of the Supreme Court in the decision rendered in the case of Union of India and others versus Major General Madan Lal Yadav (Retd), reported in (1996) 4 SCC 127 by reproducing them as follows:

"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 of 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."

From the above observations of the Hon'ble Apex Court, it is clear that the trial commences with the performance of the first act or step necessary to proceed with the trial. The first step necessary to go ahead with trial of a civil suit is framing of issue and in the instant case, the issues having been framed before filing of amendment application, admittedly, the proviso to order 6, Rule 17 of C.P.C. would come into picture and it would have to be seen if the condition specified in the proviso is satisfied by the petitioner.

8. It is contended by the learned Counsel for the petitioners that amendment sought was on two aspects of the matter, (i) seeking mandatory injunction ante and (ii) deletion of respondent no. 4 as party-defendant. The learned Counsel submits that since it came to petitioners knowledge subsequent to filing of suit that section 4 notification had been issued and respondent no. 4 did not act as Government contractor in carrying out the impugned works on the suit property, it became necessary for them to amend the pleadings, cause-title and relief clause and in such a case question of due diligence would not arise.

9. There is no dispute that during the pendency of the suit, Section 4 notification came to be issued. Therefore, amendment as regards relief of mandatory injunction ante could not have been made earlier with all diligence at command of petitioners. It has been necessitated, as submitted by the learned Counsel for petitioners, by a subsequent development of Section 4 notification and prompted as a measure of abundant precaution as presently only Section 4 notification has been issued and there is no certainty that process of acquisition would be completed by passing of award. He submits that if property is acquired eventually, the suit may become infructuous but till that time, seeking of proposed relief is necessary. Learned Counsel for respondents 1, 2 and 3 submits that acquisition proceedings are going to be logically concluded and, therefore, there is no need to seek such a relief. However, having regard to stage of the acquisition proceedings at present, some precautionary measure from the view point of petitioners seems necessary and they can be permitted to resort to it, if no prejudice is going to be caused to other side. In my view, it will not cause any prejudice to respondents as they can also seek leave of Court below, in accordance with law, to make consequential amendments. So, the amendment on this aspect should have been allowed by the Court below.

10. Learned Counsel for respondent no. 4 has submitted that copy of the reply received by the petitioners upon their query under R.T.I. Act has not been filed on record and therefore, it is doubtful whether they have acquired any knowledge about respondent no. 4. It is true that copy of the reply was not produced on record. But, the contention of receipt of information under R.T.I. Act made in the petition is supported by a solemn affirmation, and unless it is shown to be patently false, and it has not been shown to be so, it cannot be rejected. Therefore, it has to be accepted that the petitioners must have acquired the knowledge about respondent no. 4 not being a Government contractor subsequent to suit and then, I do not think that anybody can prevent the petitioners from choosing to not prosecute their suit against respondent no. 4.

11. The learned Counsel for respondents submits that respondent no. 4 has taken a defence that petitioners are not the owners of the suit property and therefore, respondent no. 4 would like to prove this fact. He also submits that in the opinion of the trial court, respondent no. 4 is a necessary party in view of these pleadings. Upon perusal of the impugned order, it is seen that opinion so framed by the trial court is only on the basis of the pleadings of the petitioners and not on the basis of said defence taken by respondent no. 4. These pleadings are general in nature and the reliefs sought are also general in nature. Still, as submitted by the petitioners, liberty can be granted to the petitioners to further suitably amend the plaint by seeking leave of the trial Court, in accordance with law. For that matter there is no need to prevent the petitioners deleting respondent no. 4 as party-defendant. Even otherwise, if petitioners are allowed to drop respondent no. 4 as party-defendant without deletion of pleading that he is not a Government contractor, the pleading will bind only the petitioners and not a person who is not party to the suit. Relief also, needless to say, cannot be granted against someone not a party to the suit. Besides, respondent no. 4 has an independent remedy available in law to prove his contention, subject to his right to raise contention, that petitioners are not the owners of suit property.

12. In view of the above, I find that amendment of pleadings, as sought by the petitioners, is necessary to determine the real controversy in the suit and could not have been effected earlier, despite due diligence. It is squarely covered by proviso to Rule 17, Order 6 of C.P.C. Therefore, I do not think that the order passed by the learned District Judge-1 can be sustained in law and the impugned order must go.

13. In the result, the petition is allowed. The application praying for carrying out of the amendment with regard to addition of prayer clause seeking mandatory injunction ante and also deletion of respondent no. 4 from the array of defendants, is allowed. Liberty is granted to the petitioners to carry out further amendment so as to seek deletion of specific reference to respondent no. 4 by moving suitable application, which shall be decided, if filed by the petitioners, by the trial court, on merits, without being influenced by the observations made in this order. Liberty is also granted to respondents to seek leave of Court to carry out consequential amendments, if any, which matter shall also be decided by Court below on merits, without being influenced by this order.

14. Rule is made absolute in these terms.

15. Parties to appear before the trial Court on 27th March, 2014.

16. Writ petition stands disposed of.

Petition allowed.