SAYED HASIBUDDIN Vs. SYED MD AKRAM HUSSAH

JUDGEMENT

(1.) HEARD Shri S.S. Dwivedi, learned Senior Counsel in support of this application which is directed against an order passed by the trial Court where the plaintiff -petitioner 'samendment application has been rejected primarily on two grounds. Firstly that trial having commenced, in terms of newly inherited proviso to Order 6 Rule 17 to the Code of Civil Procedure the plaintiff not having satisfied the condition specified therein, amendment could not be allowed and secondly that the amendment changes the entire nature of the suit.

(2.) BEFORE taking the issue of Order 6 Rules 17, it would be appropriate to see if the learned trial Court committed any jurisdictional error in holding that the nature of suit stands changed by virtue of amendment. In the plaint, as originally filed, the relief was in respect of Schedule -B properties and three sale deeds which purport to transfer Schedule -B properties. By amendment first Schedule -A is totally changed. The said properties are now said to be properties falling to the share of plaintiff and a further relief is now claimed for declaration of right, title and interest and confirmation of possession in respect of Schedule -A property. Neither those properties nor the said relief is in the original plaint. Suffice to say that this change brings about a new suit altogether. I, therefore, find that the learned trial Court did not commit any error in coming to the finding that the entire nature of litigation changes.

(3.) THE said proviso has been added in the year, 2002 by Code of Civil Procedure Amendment Act, 2002 and it came into force with effect from 1st July, 2002. The onus is now on the parties seeking the amendment to satisfy the Court that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In other words, amendments are not to be allowed merely because they are clarificatory in nature or removing any ambiguity after trial has commenced. There is a drastic change in the powers of the Court to consider and allow amendments once trial has commenced. The validity of this amendment was challenged before the Apex Court alongwith validity of various other provisions of the Amendment Act bringing about various changes in the Code of Civil Procedure. This included a challenge to Order 8 Rule 1 of CPC as well which deals with filing of written statement by the new Amendment Act. A time limit was provided for filing written statement. Courts were taking a view that the provisions are mandatory and, therefore, a written statement filed after the period prescribed could not be accepted. Both provisions of Order 6 Rule 17 proviso and Order 8 Rule 1 were challenged and the Apex Court considered both the provisions. So far as Order 6 Rule 17 proviso is concerned, its validity was upheld and it was not laid down or explained in any manner rather it was held that it was a provision to shorten litigation. While considering the latter provision that is Order 8 Rule 1, the Apex Court held that the said provision, though couched in a mandatory sense, is directory in application. This is what was not said so far as Order 6 Rule 17 proviso is concerned.. The said decisions have since been reported in (2005)4 SCC 480, (2005)6 SCC 705, 344*, (2004)6 SCC 415.