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A.K. Dubey And Another Versus Exide Industries Ltd. And 3 Others [2022]

By Shivendra Pratap Singh
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A.K. Dubey And Another Versus Exide Industries Ltd. And 3 Others [S.C.C. REVISION No. – 36 of 2020]

Judgment

1. Heard Sri A.P.Tewari, learned counsel for the revisionists. No one has appeared for the opposite parties however, a written argument was filed by Sri Manu Khare, Advocate, on behalf of opposite parties.

2. The present revision filed under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “Act, 1887”) against judgment and order dated 17.01.2020 passed by Additional District Judge/Fast Track Court-II (Constituted under 14th Finance Scheme), Gorakhpur, dismissing amendment application filed under Order VI, Rule 17 CPC in S.C.C. Suit No.41 of 2014.

3. Before adverting to decide the issue raised, a brief introduction of facts is necessary for better appreciation of the controversy in hand.

4. A lease agreement was executed on 03.11.2009 between the plaintiffs-revisionists and Exide Industries Ltd., defendant No.1 in respect of premises at Narayan Complex, Plot No.A-28, Budha Vihar Commercial Yojana, Deoria Bypass, Gorakhpur, U.P., measuring 2600 sq.ft., the owner of which is the plaintiffs-revisionists and was let out for a period of five years w.e.f. 01.11.2009 to 31.10.2014 to the lessee/opposite party No.1 on a monthly rent of Rs.39,000/-. According to the plaintiff, after expiry of lease, the defendant was required to deliver vacant possession of premises but he failed to deliver the same and thus the plaintiff was entitled for damages for use and occupation of premises at the rate of Rs.2,000/- per day in addition to monthly agreed rent. S.C.C. Suit No.41 of 2014 was filed by the plaintiff claiming relief for decree of Rs.1,25,000/- against defendant and a decree for the amount of damages for use and occupation at the rate of Rs.2,000/- per day besides monthly rent of Rs.47,000/-.

The aforesaid suit was filed on 10.12.2014. The defendant appeared and filed written statement stating therein that they had refused to extend the lease agreement, as requested by the plaintiff, and had partly removed their goods, which included batteries and inverters by 26.10.2014 and rest of the goods was to be removed before the terms of lease agreement came to an end but the revisionist came to the premises on 26.10.2014 and started abusing employees of the lessee-defendant No.1, which forced them to run away from the premises. Thereafter, the lock was put illegally by the revisionists on the premises. According to the defendant, stock of batteries and office furnitures etc. were still lying inside the premises.

Further, the defendant filed an application being Paper No.23-Ga challenging the jurisdiction of Court to entertain the plaint on the ground that it was limited only for recovery of interest in such property and there being no determination of tenancy nor prayer for eviction from the premises in question was made. Thus, in view of Section 15 read with Article 4 of Schedule II of Act, 1887, the suit was not maintainable. The said application was contested and an objection was filed by the revisionist on 08.10.2015 being Paper No.26-Ga.

The said application was rejected on 18.01.2016 against which a S.C.C. Revision No.82 of 2016 was filed, which is still pending. Further, proceedings of Suit No.41 of 2014 continued and issues were framed on 24.12.2016. Issue No.8 was decided on 07.02.2017 while issue No.9 was decided on 03.03.2017. Evidence of PW-1 (plaintiff/revisionist) was completed and in his statement recorded on 10.05.2017, he had submitted that no other evidence will be submitted by him.

5. On 11.12.2018, an amendment application was filed by plaintiff under Order VI, Rule 17 C.P.C., being paper No.59Ka/2 by which he has sought amendment in relief clause seeking arrears of rent from 01.11.2014 to 31.10.2018 and also sought eviction from property in dispute. The amendment application was contested by the defendant by filing objection, Paper no.61Ga/1. The Court below vide judgment and order dated 17.01.2020 rejected the amendment application hence the present revision.

6. Sri A.P.Tiwari, learned counsel appearing for the revisionists submitted that the Court below on the vague ground had rejected the amendment application sought by the plaintiff. He contended that there was no delay in seeking amendment on the part of plaintiff and the Court below should have considered that neither the rent was being paid by the defendant nor possession was handed over and the plaintiff was suffering great loss as no rent has been tendered since 01.11.2014. According to him, notice under Section 106 of Transfer of Property Act, 1882 (hereinafter referred to as “Act, 1882”) was given on 01.11.2018 terminating the tenancy and thereby the amendment was sought. He next contended that the Court should be liberal in granting amendment as it would avoid multiplicity of litigation. Reliance has been placed upon decision of Apex Court in case of Suraj Prakash Bhasin vs. Smt. Raj Rani Bhasin and others, 1981 AIR SC 485 and B.K.N.Pillai vs. P.Pillai & anr. 2000 AIR (SC) 614.

7. In the written argument, filed on behalf of defendant-respondent No.1 it is contended that after the amendment in the provisions of Order VI, Rule 17 and Proviso being inserted, the defendant was required to state in his application that in spite of due diligence, the plaintiff could not raise the matter before commencement of trial, but no such averment was made in the application and simplicitor an amendment has been sought in the plaint, which is based upon new cause of action and the remedy would be by filing a separate suit, as the relief claimed of possession was available to the plaintiff on the date of institution of the suit on 10.12.2014, which he did not claim and only suit for damage was filed.

8. I have heard the rival submissions of the parties and perused the material on record.

9. The short question, which emerges for consideration is, “whether post commencement of trial of suit, an application under Order VI, Rule 17 CPC simplicitor without disclosing any reason as to the delay caused in moving the same can be entertained ignoring the proviso to Order VI, Rule 17 CPC?”

10. For better appreciation of the controversy, a glance of provision of Order VI, Rule 17 CPC, as amended on 01.7.2002 is necessary, which is extracted hereasunder :

“17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 matter before the commencement of trial.”

11. The legislature, in order to shorten the litigation and speed up the trial of litigation, had earlier omitted Rule 17 of Order VI by amendment in the year 1999 but, after some protest, the provision was restored with certain amendment coming in the form of amending Act 22 of 2002. The present proviso was added to Order VI, Rule 17 CPC. The said amendment was challenged in the case of Salem Advocate Bar Association versus Union of India (2005) 6 SC 344 before the Apex Court, which was decided by Apex Court and the amendment was upheld. Relevant para 26 of the judgment in the case of Salem Bar Association (supra) is extracted hereas under :

“Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.”

12. Thus, a break was put to the unfettered power of the Court in regard to frequent amendments, which were made by the parties in their pleadings.

13. Post amendment, no application for amendment can be allowed once the trial has commenced. It is only when the Court records its satisfaction and comes to the conclusion that in spite of the due diligence, the party could not have raised the matter before the commencement of trial, the application can be allowed.

14. Thus, two situations arise post amendment, one; where the trial has not commenced, the Courts are liberal in granting amendments, but, where the trial has commenced, the party making application for amendment has to show that despite best effort and due diligence, the fact was not in its notice and came only after the trial commenced, then only the Court can allow such amendments.

15. In Chander Kanta Bansal vs. Rajinder Singh Anand, (2008) 5 SCC 117, the Apex Court while considering the effect of the proviso added to Order VI, Rule 17 CPC, in paras 11, 12, 13, 15 and 16 held as under :

“11. In order to find out whether the application of the defendant under Order 6 Rule 17 for amendment of written statement is bona fide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus:

“17.Amendment of pleadings.–The court may at any stage of the proceedings allow either party to alter or amend his pleading 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 matter before the commencement of trial.”

This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.

12. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This Rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the Rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.

13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other’s case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.

…….

15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of “due diligence” the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application.

16. The words “due diligence” have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word “diligence” means careful and persistent application or effort. “Diligent” means careful and steady in application to one’s work and duties, showing care and effort. As per Black’s Law Dictionary (18th Edn.), “diligence” means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. “Due diligence” means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) “due diligence”, in law, means doing everything reasonable, not everything possible. “Due diligence” means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.”

16. Similarly, in Rajkumar Guruwara (dead) through LRs vs. S.K.Sarwagi and Company Private Limited and another (2008) 14 SCC 364 had considered the scope of amendment post commencement of trial. Relevant paras 12 and 13 of the judgment are extracted hereas under :

“12. In order to consider whether the appellant-plaintiff has made out a case for amendment of his plaint, it is useful to refer Order 6 Rule 17 CPC which reads 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein. The said Rule with proviso again substituted by Act 22 of 2002 with effect from 1-7-2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.

13. To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.”

17. Thus, from the conjoint reading of the amended provisions of Order VI, Rule 17 CPC and the law laid down by Apex Court in the aforesaid cases, it is abundantly clear that the Trial Court has to be cautious while granting or rejecting an amendment once the trial commences. Though, it is a settled law that the Court should be liberal in granting amendment so as to avoid unnecessary complication and multiplicity of litigations, but, once the trial has commenced, the party making an application for amendment, has to spell out clearly the cause which had prevented it from bringing the amendment prior to the commencement of trial and also disclosing the reason that despite due diligence it was not in the notice of the party and only when the said fact came into the knowledge of the party claiming amendment, that such application was filed.

18. Now coming to the case in hand, it was on 10.12.2014 that the plaintiff-revisionist had filed a suit for damages violating the terms of the lease agreement. The plaintiff was fully aware that the lease agreement had come to an end on 31.10.2014 and the remedy for evicting the defendant from the premises let out was already available to him at that time, which he did not chose to claim.

19. In fact, the plaintiff only wanted damages for the occupation of the property by the defendant at the rate of Rs.2,000/- per day, and had tried to enforce Clause 3(c) of the lease agreement. In the meantime, the defendant in the present case had filed suit No.1048 of 2015 before Civil Judge (Senior Division), Gorakhpur claiming relief that the plaintiff herein may permit the defendant to remove his batteries and inverters stock, which was still lying in the premises in dispute on which the lock of the plaintiff was hanging. It was only in the year 2018 that notice under Section 106 of Act, 1882 was served on 31.01.2018 and 26.02.2018 for arrears of rent and ejectment from the premises in dispute. In the meantime, issue Nos. 8 and 9 were decided by the Court below on 07.02.2017 and 03.03.2017 and the plaintiff was already examined before the Court below.

20. There is no whisper as to why there was delay on the part of plaintiff in filing amendment application on 11.12.2018. From perusal of amendment application, Paper No.59Ka/2, it is clear that only amendment has been sought in the plaint claiming arrears of rent and ejectment from property in question and no compliance of proviso to Order VI, Rule 17 CPC has been made by plaintiff while making such application. The plaintiff-revisionist not only failed to adhere to the proviso to Rule 17 of Order VI CPC by stating reason that despite due diligence the fact pleaded was not within the knowledge and could not be raised earlier but is also barred by Order II, Rule 2 CPC as the suit filed by the plaintiff did not include the whole claim which the plaintiff was entitled to make in respect of the cause of action.

21. The present amendment is a fresh cause of action and by the amendment, the suit for damages cannot be amended. Moreover, the relief, which is being claimed by the revisionist through amendment, was available to him when the suit for damages was filed by him on 10.12.2014 as the lease agreement had already expired on 31.10.2014 and the plaintiff could have claimed the relief for arrears of rent and ejectment, but he chose to press the relief of damages on the basis of Clause 3(c) of the lease agreement, which had come to an end on 31.10.2014.

22. Thus, this Court finds that post amendment in Order VI, Rule 17 CPC, which was brought in the year 2002, the party seeking amendment has to adhere to the proviso while making an application in case of commencement of trial. It is not disputed to either of the parties that after framing of issues in the year 2016, 2 issues had already been decided and the oral evidence of plaintiff has already concluded. It is well settled that Section 17 of Act, 1887 provides that provisions of Code of Civil Procedure is applicable in the matters dealt by the Judge Small Cause Court under the Act, 1887.

23. Considering the facts and circumstances of the case this Court finds that the Trial Court had rightly rejected the amendment application of the revisionist as it does not disclose any reason for filing the same post-commencement of trial, which is against proviso to Order VI Rule 17 CPC.

24. No interference is therefore warranted in the impugned order. Revision fails and is hereby dismissed.

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Shivendra Pratap Singh

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