1. The question that falls for consideration of the court in this petition is of interpretation of Order VI, Rule 17 Code of Civil Procedure. The respondent, is the original plaintiff, who has filed suit in the Court of Small Causes, inter alia, for recovery of possession of the suit property from the petitioner. He had, filed an application for amendment of the plaint, which was allowed by the order dtd.16th December, 2013. Being aggrieved by the order, the petitioner has invoked the extraordinary jurisdiction of this court under Articles 226 and 227 of the Constitution of India.
2. The case set out by the respondent in his eviction suit is that he is the owner of the building known as 'Mujibur Rehman & Brother Building' and the petitioner is the tenant in respect of the open space, admeasuring about 4,000 sq. ft., situate in the compound of the building from where the petitioner is running a factory under the name and style as 'K.T. Kubal & Co.'. The monthly rent for the open space is Rs.813.50. The petitioner is also monthly tenant in respect of three shops in the building in respect of which, there is a separate rent receipt. The ground of eviction alleged against the petitioner is of creating nuisance for the other occupants in the building and encroaching upon the common areas. The petitioner filed written statement dtd. 23rd July, 2012. In it's written statement, the petitioner denies that it is the tenant in respect of the open space as alleged in the plaint. According to it, the tenancy is in respect of the factory shed, admeasuring about 4964.03 sq. ft. It further contends that, the owners of the property as per the Property Register Card are five individuals, who have given power of attorney to the respondent. On the basis of power of attorney, the petitioner has been handing over the amount of monthly rent to the respondent. The petitioner claims that it is not aware as to when and how the respondent became the owner and the landlord of the property in question as there is no letter of attornment from the five persons addressed to the petitioner. Thus, the petitioner challenges the derivative title of the respondent.
3. The challenge to the derivative title of the respondent was raised by the petitioner for the first time on 18th July, 2012 when it filed affidavitinreply to the application for interim reliefs filed by the respondent. It was thereafter again raised in (i)the written statement dtd.23rd July, 2012, (ii)an additional affidavit dtd. 8th August, 2012 filed in the interim proceedings, (iii)written submissions dtd. 8th January, 2013 filed in the appeal arising out of the interim order,(iv) while an issue specifically on the derivative title of the respondent was framed on 8th July, 2013,(v) when the writ petition filed by the petitioner to challenge the order of deletion of that issue was allowed on 6th August, 2013,(vi) when the respondent's affidavit of examinationinchief dtd. 20th August, 2013 was filed(vii) when the objections to exhibiting the documents was taken and (viii)when the writ petition filed against the order exhibiting of documents was allowed by this court on 20th November, 2013. Thus, since the filing of the suit on eight occasions, during the period dtd.18th July, 2012 to 20th November, 2013, the attention of the respondent was drawn to the challenge to his derivative title.
4. On 21st November, 2013, the respondent filed his application for amendments to the plaint to add thereto, facts for disclosing his derivative title. The petitioner contested it on the basis of the bar imposed by the Proviso to Order VI, Rule 17 Code of Civil Procedure. The trial court allowed the application by the impugned order with an observation that in the facts of the case no 'indiligence' can be attributed to the respondent.
5. The provision of Order VI, Rule 17 Code of Civil Procedure, which is required to be interpreted for deciding the present petition reads as follows:
ORDER VI... Pleadings Generally.....
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.'
6. It will also be relevant to take note of the facts that weighed with the trial court, as seen from the impugned order, to hold that no 'indiligence' can be attributed to the respondent. The trial court held that the documents relevant for the purpose of establishing the derivative title of the respondent in respect of the suit property had been disclosed by the respondent in his affidavitinrejoinder dtd.19th July, 2012.
Thereafter these documents were referred to by the respondent in various other proceedings. Therefore, the petitioner had the knowledge of those documents since the time prior to the commencement of the trial. Further in the opinion of the trial court, the amendments desired by the respondent were only to explain the facts of title and to file original documents. It concluded it's reasons at paragraph 16 of the order in following words:
'16 Therefore, the case of want of due diligence as has been canvassed by the learned Advocate for the defendant alongwith citations supra will not apply to the present case, and considering the principles of amendment in pleadings and even in the citations relied on by the plaintiff, the plaintiff shall be permitted to amend the plaint and file the additional evidence on record.'
7. Mr. Walavalkar, the learned Senior Counsel appearing for the petitioner, candidly concedes to the legal position that an order allowing amendments of pleadings is not to be lightly interfered with by the higher courts. Once the discretion has been exercised by the trial court allowing amendments to the pleadings, the same cannot be disturbed unless the amendment takes away a valuable right accrued to the other side on account of the delay in amending the pleadings or cause prejudice to the other side. But according to him, the amendments in this case would cause serious prejudice to the petitioner. He argues that the facts relating to the derivative title of the respondent and the documents concerning thereto have been available with the respondent since beginning. Time and again attention of the respondent was drawn to the deficiency in the pleadings. The respondent, however, was completely careless and negligent in amending the pleadings and bringing the documents on record. Mr. Walavalkar also points out that the application for amendments does not set out any case whatsoever to indicate that there was due diligence exercised by the respondent and that despite exercise of due diligence the facts sought to be added by way of amendments and the documents produced were not available to him. Mr. Walavalkar argues that, with amendments to Order VI, Rule 17 CPC by introducing the proviso thereto, the fact of exercise of due diligence becomes a jurisdictional fact for the trial courts while considering an application for amendment, made after commencement of the trial. In the absence of existence of the jurisdictional fact, the trial court does not get jurisdiction to entertain the application for amendments.
8. Mr. Godbole, the learned counsel appearing for the respondent submits, on the other hand, that existence of, facts relating to due diligence, mentioned in the proviso cannot be a jurisdictional fact for entertaining an application for amendment. According to him, the jurisdictional fact would be the test of necessity of the amendments for the purpose of determining the real question between the parties. He argues that a jurisdictional fact can never be drawn from the proviso to a provision. It must arise from the principal section itself. Otherwise it would amount to be the proviso controlling the principal section. This cannot be allowed. It is also the argument of Mr. Godbole that the very purpose of amendment to the pleadings is to reduce/minimise the litigation between the parties to avoid multiplicity of the proceedings. Therefore, the test that governs issue of amendments has to be 'real controversy' test. According to him, if the amendment sought goes to the root of the matter or it concerns with the real issue in controversy between the parties, the amendment should be allowed notwithstanding the fact that there may be negligence, omission on the party applying for amendment. At the highest the delay/negligence to prefer amendment may be penalised by imposing reasonable costs. There should not be complete or blanket refusal to amend the pleadings because the real controversy in the suit is required to be finally decided by the trial court.
9. Undisputedly, the pleadings of the respondent are deficient in respect of his derivative title to the property in question. Relying upon the decision of the Apex Court in A.V.G.P. Chettiar and sons and others vs. T. Palanisamy Gounder, reported in (2002) 5 Supreme Court Cases, page 337 Mr. Walavalkar submits that, it is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. There can be no dispute as regards the significance of the pleadings. The parties are bound to base their contentions before the court on their pleadings. In fact the pleadings define the boundaries within which the dispute of the parties is to be decided by the court. It can also not be disputed that, attention of the respondent was drawn to the deficiencies in his pleadings, again and again, until after the respondent filed his affidavit of evidence and confirmed the contents of the affidavit before the court under oath. The application for amendment to the plaint was filed much thereafter. In fact, application had been filed per force in view of the order of this court dtd.28th November, 2013 in Writ Petition No. 10400 of 2013 filed by the respondent. By that writ petition, the petitioner had challenged the order dtd. 5th October, 2013 passed by the trial court rejecting the objections on admissibility of the documents produced by the respondent alongwith his affidavit of examinationinchief. While upholding the objections, this Court had noted that the documents that had been objected to did not form part of the list of documents alongwith the plaint. There was no reference made to the documents in the plaint alongwith the averments necessary to indicate the existence of the documents and the manner in which the documents came into existence. As a consequence, the defence of the petitioner was limited to the averments made in the plaint and the documents referred to therein. In this way, the petitioner was denied an opportunity to deal with the documents and the averments relating to them at the stage of the pleadings. This court held that though the documents had been referred to in the other applications and the affidavits filed at the interlocutory stage, absence of the same in the pleadings caused prejudice to the petitioner. It therefore set aside the order of the trial court admitting the documents in evidence and granted liberty to the respondent to file appropriate application for additional list of documents as well as relevant pleadings in support of the same. Pursuant to that liberty, the respondent filed the application for amendments to the plaint.
10. The application for amendments was filed on 21st November, 2013. Paragraphs1 to 5, 7 and 10 of the application, are devoted to the history of the suit upto the order dated 28th November, 2013 of this Court. The averments relating to the amendment of the plaint are at paragraphs 6,8 and 9. The same read as follows :
'6. I say that in view of the objection raised by the Defendant, it is necessary to amend the plaint and to include pleading in support of the additional document as mentioned in the list of documents annexed hereto as Exhibit 'A' to the present application. A schedule of the proposed amendments is also annexed hereto with the present AffidavitcumApplication.
'8. I say that in view of the objections raised by the Defendants, it is necessary that Plaintiff may be allowed to amend the Plaint as per schedule and to annex Additional List of Documents to the Plaint. I submit that, no prejudice will be caused to the Defendant if my present Application for amendment is allowed by this Hon'ble Court and on the contrary, serious prejudice will be caused to the plaintiff if the present Application is not allowed.'
'9. I submit that in view of the order passed by the Hon'ble High Court granting the liberty that too in the presence of the learned advocate representing the defendant herein, the application is deserves to be allowed.'
The above averments show that the respondent, in his application for amendment does not even acknowledge the fact that the amendments were being sought after commencement of the trial. As a consequence, the application contained no explanation whatsoever for the delay in filing the application at such belated stage.
11. Looking to the rival contentions, the first question that would arise for consideration in the petition is what is the scope/ ambit of a proviso to a section. The argument of Mr. Godbole is that a proviso or an explanation can never control the main section. Whereas the argument of Mr. Walavalkar is that a proviso may substantially alter the main section. In support of his argument, Mr. Walavalkar relies upon the decision of the Apex Court in S. Sundaram Pillai and others vs. V.R. Pattabiraman and others, reported in (1985) 1 Supreme Court Cases page 591. In the decision cited, the Apex Court was considering the intent and scope of the proviso to the ground of eviction, default in payment of rent, contained in Tamilnadu Buildings (Lease and Rent Control) Act. For considering the scope of a proviso and the ambit of an explanation either to a proviso or to any other statutory provision, the Apex Court noted that the well established rule of interpretation of a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. The Apex Court then considered it's earlier decisions as also the opinions expressed by wellknown experts in different books on Interpretation of Statute, to sum up four different purposes served by a proviso.
The same read as follows:
'(1) qualifying or excepting certain provisions from the main enactment:
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable :
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.'
The above observations of the Apex Court show that the argument advanced by Mr. Godbole that a proviso to the section can never control the main section or that for the purpose of finding out jurisdictional facts, the court cannot look into the proviso and must look into main section alone is not correct.
12. The law on the scope/ambit of a proviso to a section thus cleared, is now to be applied to the provisions to Order VI, Rule 17 CPC. Mr. Walavalkar submits that the proviso will attract purpose no.2 summed up above and exhibition of due diligence being a mandatory condition will be a jurisdictional fact for considering application for amendment filed after commencement of the trial. Mr. Godbole per contra argues that the only jurisdictional fact would be the necessity for the purpose of determining the real questions in controversy between the parties.
13. Mr. Walavalkar submits that the very proviso i.e., the proviso added to Order VI, Rule 17 CPC was the subject matter of consideration of the Apex Court in Vidyabai and others vs. Padmalatha and another, reported in (2009) 2 Supreme Court Cases, page 409. In the facts of the decision, the application for amendment of the written statement was filed after the issues were framed, affidavits by way of evidence of the respective parties had filed and the dates had been fixed for crossexamination of the witnesses. The Apex Court at para 10 of the decision makes following observations about the proviso:
'It is couched in a mandatory from. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz, it must come to a conclusion that in spite of due diligence, the parties could not have raised the matter before the commencement of the trial.'
These observations are consistent with the second purpose of a proviso as summed up in Sundaram Pillai case. The Apex Court then considered as to what would amount to commencement of proceedings. It opined that the date on which the issues are framed is the date of first hearing. Filing of an affidavit in lieu of examinationinchief of the witness would amount to 'commencement of proceedings'. For that purpose, it quoted with approval it's earlier decision of a Bench of three Judges in Union of India vs. Major General Madan Lal Yadav, reported in (1996) 4 SCC, page 136. The quote from the threeJudge Bench reads as under :
'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 or 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.'
A reference therein is also made to other decisions of the Apex Court i.e. (i) Kailash v. Nanhku, reported in (2005) 4 Supreme Court Cases, page 480 and (ii) Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., reported in (2006) 12 Supreme Court Cases, page 1 to reiterate that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. The Apex Court thereafter considered the application of the proviso appended to Order VI, Rule 17 CPC in following terms:
'19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6, Rule 17 of the Code restricts the power of the court.
It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint'.
14. As can be seen above, the Apex Court in Vidyabai's case has considered every aspect of the said proviso. Be it the purpose of the proviso, the commencement of trial or the jurisdictional fact.
15. Mr. Godbole relies upon two earlier decisions of the Apex Court in support of his submissions. They are :
(i) Baldev Singh & Ors. vs. Manohar Singh and others, reported in (2006) 6 Supreme Court Cases, page 498 and
(ii) Usha Devi vs. Rijwan Ahamd and others, reported in (2008) 3 Supreme Court Cases, page 717.
The decision in Baldev Singh case has been considered in detail in Vidyabai's case only to hold that it is not an authority on the proposition of commencement of trial. It was further noted that in Baldev Singh's case, the documents were yet to be filed and therefore, it was held that the trial did not commence. As regards Ushabai's case, the same is not an authority on the proposition of either commencement of trial or the jurisdictional fact. At para 15, the Apex Court has clarified that in that decision it did not venture to make any pronouncement on the larger issue as to the stage that would mark the commencement of trial of a suit. As a consequence, there was no question of consideration of the proviso appended to Order VI, Rule 17 CPC. The Apex Court had simply found that the appeal before it was closer on facts to it's earlier decision in Sajjan Kumar vs. Ram Kishor, reported in (2005) 13 Supreme Court Cases, page 89 and hence allowed the amendments. The two decisions cited are thus seen to be of no assistance in deciding the question in the petition on hand.
16. Mr. Godbole has relied upon a third decision of the Apex Court in Ravajeetu Builders and Developers vs. Narayanaswamy and Sons and others, reported in (2009) 10 Supreme Court Cases, page 84 . Perusal of the decision however shows that the Apex Court had no occasion therein to consider the proviso to Order VI, Rule 17 CPC. The decision considers the general principles governing exercise of discretionary power by the court while granting amendment of pleadings.
17. Lastly, Mr. Godbole attempts to hang onto the word 'raised' used in the proviso as regards the matter to be brought into the pleadings by way of amendment. He submits that use of the word 'raised' in the language of the proviso is significant. According to him, use of the word indicates that the matter of amendment must be new matter, not referred to earlier at any point of time. Since the proposed amendment is this case contained the matter which was already 'raised' earlier on record at various stages of the proceedings, it fell out side the proviso. The argument needs to be only stated to be rejected. The raising of the matter relates to the pleadings i.e. plaint and written statement as per Order VI, Rule 1 CPC and not the general record of the case which would include several interlocutory proceedings.
18. The statements of law that can be deduced from the above discussion is that in a civil case, the trial commences with filing of affidavit in lieu of examinationinchief of the first witness. An application for amendment of pleadings filed prior to commencement of proceedings will have the jurisdictional fact of necessity to determine the real question of the controversy between the parties. But if the application is filed after commencement of trial, there would be one more jurisdictional fact to be established, which is exercise of due diligence. The applicant must establish that despite due diligence, he could not have raised the matter before commencement of trial. This would the first jurisdictional fact for such application. Unless this jurisdictional fact is established, the court cannot move to the second jurisdictional fact of the necessity for the purpose of determining the real controversy between the parties.
19. Coming to the facts of the case on hand, it is already seen at para
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10 above that the application of the respondent is completely silent on the aspect of diligence. The application does not even acknowledge the delay in filing the application much less state explanation for it. In the circumstance, the applicant failed to establish the first jurisdictional fact of exercise of due diligence. As a consequence, his application was liable to be dismissed on this ground alone. 20. Unfortunately, the Court of Small Causes failed to take the fact of diligence into consideration. It has completely ignored the several opportunities made available by the petitioner to the respondent by drawing his attention to the defects in the plaint. The learned Judge reasons, that the application for amendments was necessitated by the denial of the respondent's derivative title to the suit property and that when a plaintiff files a plaint, he may not know as to which defence, the defendant may take in a case. The reason stated is not valid. Firstly, irrespective of the defence that may be taken by the defendants, the plaintiff must state certain basic facts in the plaint and disclose the evidence that he proposes to rely upon. This is because he is expected to establish his case even if the suit were to proceed for exparte decree. Secondly, nothing prevented the respondent from taking one of the several opportunities made available to him prior to commencement of the trial. The other reason stated is disclosure of the facts relating to derivative title and the documents in support thereof during interlocutory proceedings. Such disclosure is meaningless until it forms part of the pleadings as defined in Order VI, Rule 1 CPC. At para 15, the learned Judge reasons 'In view of the facts brought on record that the plaintiff has filed the documents relating to title and wants to plead the facts in pursuance thereof, no indiligence can be attributed to the plaintiff, particularly when the defendant had knowledge of those documents since the time of hearing and decision of the temporary injunction application below Exhibit 9 when the trial was not commenced'. This reasoning is also not correct since the knowledge of the respondent can have nothing to do with the diligence to be exercised by the respondent in curing the defects in his pleadings. 21. In all the above circumstances, the impugned order cannot be sustained. The petitioner therefore succeeds in the petition. The order dtd. 16th December, 2013 passed by the Court of Small Causes, Mumbai on Exhibit '52' in T.E. Suit No.114/142 of 2012 is set aside and the application at Exhibit '52' is dismissed. No order as to costs.