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Amar Ujala Publications v/s Rajiv Prashar

    Civil Revision No.7513 of 2009 (O&M)

    Decided On, 25 August 2010

    At, High Court of Punjab and Haryana

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR JAIN

    For the Petitioner: B.D. Sharma, Advocate. For the Respondent: R1, Gurcharan, Advocate.



Judgment Text

Rakesh Kumar Jain, J.

1. The petitioner has challenged order dated 05.11.2009 passed by the Civil Judge (Senior Division), Muktsar by which application filed by the petitioner under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 [for short "CPC"] for amendment of the written statement, has been dismissed.

2. In brief, respondent No.1 (plaintiff) filed a suit claiming damages to the tune of Rs. 10 lacs for a malicious publication of a news in the newspaper `Amar Ujala' (petitioner) dated 11.02.2004. A joint written statement was filed by defendant No.2 and the petitioner (defendant No.3) in which no preliminary objection was taken and averments made in the plaint were replied on merits alone. Issues were framed on 29.05.2007 by the learned Trial Court. The plaintiff closed his evidence on 20.01.2009 and the case was posted for evidence of the defendants for 12.02.2009. Thereafter, the case was adjourned on many dates. Then on 25.08.2009, an application was field by the petitioner under Order 6 Rule 17 CPC for amendment of the written statement which was dismissed by the learned Trial Court on 05.11.2009. It is also pertinent to mention at this stage an order of the learned Trial Court dated 17.12.2009 by which evidence of the petitioner was closed because defendant No.3 (petitioner) did not lead any evidence despite last opportunity. The said order is reproduced as under: -

"DW is present and his further crossexamination concluded. The evidence of defendant No.2 is closed by his counsel.

No other evidence of defendant No.3 is produced despite last and final opportunity. The case is pending since the year 2004 and issues were settled on 29.05.2007. After the closure of plaintiff evidence, the defendants availed numerous opportunities till today, with and without costs and warning of last opportunity. As such, no ground is made out to grant another opportunity to defendant no.3 to bring his evidence. The same is now closed by order.

At this stage, the defendant no.3 moved application for directing the plaintiff to pay ad valorem court fee corresponding to the claim. Copies have been supplied. To come up on 12.01.2010 for reply and arguments on the application. The case is also adjurned for the date fixed, for rebuttal evidence if any and arguments."

3. It is also pertinent to mention that the impugned order dated 05.11.2009 has been challenged by the petitioner by filing this revision petition in this Court on 14.12.2009. The revision petition was re-filed on 16.12.2009 and was listed before this Court on 17.12.2009 when notice of motion was issued by this Court, but on the same day the learned Trial Court had closed the evidence of the petitioner in terms of the order which has been reproduced above. It is also pertinent to mention that this fact was never brought to the notice of this Court by learned counsel for the petitioner that his evidence has already been closed by order of the Court.

4. Returning back to the application for amendment, the petitioner had prayed for amendment in the written statement in order to raise following preliminary objections, which read as under: -

"a) That the present suit is not maintainable.

b) That the present suit is bad for misjoinder of necessary parties and the present suit has not been filed against the proper person. The defendant no.3 is sued through its editor, whereas editor is having no authority to manage the company i.e. defendant no.3 Hence, the present suit is liable to be dismissed.

c) That the plaintiff has got no locus standi to file the present suit. The present suit has not been filed by the plaintiff in his official capacity and moreover, the plaintiff is under obligation to get the necessary permission or sanction from the government for filing the present suit which he has never sought.

d) That the no loss of reputation has been caused to the plaintiff due to the publication of the news item in question. Moreover, every due and proper care has been adopted while publishing the news item in question and hence the suit is liable to be dismissed on this ground only. The news in question was published in good faith and on the basis of facts and figures and there is no malice on the part of the answering defendant to publish the news item. Moreover, there is no any specific allegation against the plaintiff, in the news in question, hence the plaintiff has got no right to file the present suit.

e) That the present suit is liable to be dismissed on the ground that plaintiff has not affixed proper court fee on the plaint. The present suit is filed for recovery of Rs. 10 lacs, whereas the court fee has been affixed on the amount of Rs.One Lac only."

5. The application was contested by the plaintiff by way of reply in which it was alleged that the suit was filed on 15.04.2004, issues were framed on 29.05.2007, plaintiff has closed his evidence on 20.01.2009, defendant No.3 (petitioner herein), despite availing several opportunities, failed to produce its evidence and if the application is allowed it would result into de novo trial. The proposed amendment cannot be allowed as there is no due diligence on the part of the defendant/petitioner and it would also change the basic character/nature of the case and cause prejudice to the plaintiff. The learned Trial Court vide its impugned order dismissed the application by observing as under: -

"9. The proposed plea to be inserted in preliminary objections against the maintainability of suit was available to applicant, when he presented his written statement on 03.03.2005. Except words "inspite of due diligence", no other explanation is furnished by the applicant as to why he took four years seeking amendment of his written statement. The insertion of these words in the amendment application is not sufficient that the applicant had some reasonable cause of not inserting the proposed amendment at first stage. As per the proviso attached under Order 6 Rule 17 CPC, no application shall be allowed after trial has commenced unless Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before commencement of trial.

Here in this case, there is absolutely no justification furnished by the applicant seeking amendment of his written statement after a span of four years of presenting his original written statement and after commencement of trial for two years.

10. With the insertion of proposed plea in the written statement, it will result into start of fresh trial and definitely, the respondent/plaintiff will be prejudiced, who is awaiting result of his case for the last five years. The authorities cited by the learned applicant counsel are distinguishable, in the Hon'ble Courts have observed that the amendment can be allowed at any stage of trial, but subject to conditions that:

i) The application must be bonafide;

ii) The same shall not cause injustice to the other side;

iii) It shall not affect the right already accrued to the opposite party.

As such, the afore cited decisions of referred to by learned applicant counsel are not applicable to the present case in hand, keeping in view the indistinguished facts of the case."

6. Learned counsel for the petitioner has submitted that the pleadings by way of amendment sought to be incorporated in the written statement is of technical nature about maintainability of suit, mis-joinder and non-joinder of necessary parties, locus standi of the plaintiff and bona fide on the part of the petitioner in publishing the news item for which it would not lead any evidence. It is also submitted that the amendment in the written statement is always considered liberally by the courts specially when it goes to the root of the case and the petitioner is ready to compensate the plaintiff by way of costs.

7. In reply, learned counsel for respondent No.1 has vehemently argued that no amendment could be allowed after the trial has commenced unless the applicant/petitioner satisfies the Court that in spite of due diligence the pleadings sought to be raised by way of amendment could not be raised before the commencement of the trial. It is further submitted that the amendment cannot be allowed in a routine manner even if the petitioner is ready to compensate the plaintiff by way of costs. Learned counsel for respondent No.1 has relied upon various decisions of the Supreme Court i.e. Ajendraprasadji N. Pande and another v. Swami Keshavprakeshdasji N. and others, 2007(1) RCR (Civil) 481, Vidyabai and others v. Padmalatha and another, 2009(1) RCR (Civil) 763, Rajkumar Gurawara (Dead) through L.Rs. v. M/s. S.K.Sarwagi & Co. Pvt. Ltd. and another, 2008(4) RCR (Civil) 824, Chander Kanta Bansal v. Rajinder Singh Anand, 2008(3) Civil Court Cases 490 (SC) and the Single Bench judgments of this Court in the cases of Smt. Pratibha Devi v. Shri Guru Arjan Dev Public School, Kartarpur, Distt. Jalandhar, 2009(5) RCR(Civil) 814 and Arya Mittar and another v. Dr. Ashok Kumar Goel, 2010(2) Civil Court Cases 410 (P&H).

8. I have heard both learned counsel for the parties and have perused the record with their able assistance.

9. The facts are not much in dispute as the issues were framed on 29.05.2007, the evidence of the petitioner was closed on 17.12.2009 as it did not lead any evidence despite many opportunities and the application for amendment was filed after closure of the evidence of the plaintiff on 20.01.2009. Moroever, in the application it has not been explained as to how the amendment sought in the pleadings has escaped the notice of the petitioner in spite of due diligence. Before appreciating the arguments of learned counsel for the parties, it would be relevant to refer to Order 6 Rule 17 of the 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."

10. A perusal of the aforesaid section would show that the Court has the jurisdiction to allow either party to alter or amend his pleadings in such manner and on such terms which are found to be just to the Court if the amendment are necessary for the purpose of determining the real questions in controversy between the parties, but there is a rider that no such application for amendment shall be allowed by the Court after the trial has commenced, until and unless party seeking amendment satisfies the Court that in spite of due diligence the pleadings could not be raised before the commencement of the trial. The bare interpretation of the aforesaid provision is that for the purpose of determining the real question between the parties, amendment can be allowed in the pleadings but before the commencement of trial and if a party seeks amendment after the commencement of trial he has to prove that in spite of due diligence the matter sought to be incorporated in the pleadings could not be raised before the commencement of trial, meaning thereby it would not suffice for a party to seek amendment by just mentioning in the application that in spite of due diligence the matter could not be raised before the commencement of trial, rather some causes and reasons have to be given. However, in the present case the petitioner's own act and conduct is not bona fide as no evidence has been led by it despite availing many opportunities and its evidence has been closed by order of the Court. If no evidence has been led on merits, what is the use of allowing the petitioner to take preliminary objection in the written statement. In the case of Ajendraprasadji N. Pande and another (supra), the Supreme Court has held that the trial is deemed to commence when the issues are settled, the case is set down for recording of evidence and the parties seeking amendment has to prove that in spite of due diligence, he could not raise the matter before the commencement of trial. In the case of Vidyabai and others (supra), the Supreme Court has held that filing of affidavit by a witness in lieu of examination-in-chief would amount to commencement of trial and the Court has no jurisdiction to allow amendment after filing of affidavit. It was also held that the Court can allow the amendment before commencement of trial and not after commencement of trial as the proviso to Order 6 Rule 17 CPC is couched in a mandatory form. In the case

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of Rajkumar Gurawara (Dead) through L.Rs. (supra), the Supreme Court has held that pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. In the case of Chander Kanta Bansal (supra), the Supreme Court has defined the word "due diligence" to mean such diligence as a prudent man would exercise in conduct of his own affairs. It was also held that proviso was added to Order 6 Rule 17 CPC in order to curtail delay and expedite hearing of cases. In the case of Smt. Pratibha Devi (supra), this Court has held that if there is no plausible explanation given for the delay, the amendment sought at the belated stage cannot be permitted and in the case of Arya Mittar and another, it has been held that the amendment cannot be allowed in the written statement in order to fill up the lacunae. 11. Thus, keeping in view the totality of facts and circumstances, the petitioner has failed to prove that in spite of due diligence the pleadings sought to be added in the written statement by way of amendment could not be raised at the time of commencement of trial and once the petitioner has not led any evidence even on merits, no purpose would be served in allowing it to amend its written statement. 12. In view of the above discussion, I do not find any merit in the present revision petition and the same is hereby dismissed. No costs. Petition dismissed.
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