TMI Blog2006 (12) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Civil Suit No. 144 of 2002 in the Court of Civil Judge at Bhavnagar against the present appellants, inter alia, seeking a declaration that in view of the Resolution passed in the meeting held on 11.05.2002, Defendant No.1 (appellant No.1 herein) having ceased to be the Acharya of the Vadtal Gaadi, is not entitled, by himself or through defendant No.2 (Present appellant No.2) or supporters from enjoying any of the privileges or rights in respect of Vadtal Gaadi and at any of the principal temples or Hari temples including the temples falling under the Vadtal Gaadi at Vadtal, Gadhada and Junagadh as well as within any of the Trust property and to further declare that the appellants/defendants have no right to nominate their successors as Acharya of the Gaadi. In the above-referred Suit, the appellant submitted an application contending that the Court at Bhavnagar has no jurisdiction. The said application was dismissed by the Civil Court. The appellants preferred civil revision application in the High Court challenging the jurisdiction of the Bhavnagar Court. To resolve the dispute between the parties, more particularly between the Board and Acharya, Hon'ble Mr. Justice S.D.Dav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken to istall Rakeshprasadji Mahendraprasadji .. it is to be noted that legality of the appointment of Rakeshprasadji as Acharya was questioned. So, as noted above, the basis revolves around the question of legality of the decision taken to remove Ajendraprasadji and legality of appointment of Rakeshprasadji .. it is needless to note that while deciding the issue of injunction, the Courts have to consider three cumulative factors, viz. prima facie case, balance of convenience and irreparable loss. Definite findings are to be given on these aspects, on a prima facie basis. The High Court dismissed the appeal from order No. 421 of 2002 holding that the injunction is running since long against the appellants and that points which have been raised can be raised before the trial Court. The appellants moved application for amendment on 24.11.2005 in the written submissions in Special Civil Suit No. 156 of 2002, application Ex.95 before the trial Court. This Court dismissed the special leave petition No. 26472 of 2005 summarily and directed the trial Court to proceed with the matter preferably on day-to-day basis. Civil Judge dismissed the amendment application of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties. He also invited our attention to Order VI Rule 17 prior to insertion of proviso and also relied on B.K. Narayana Pillai vs. Parameswaran Pillai and Another, (2000) 1 SCC 712 wherein this Court held that delay on its own, untouched by fraud is not a ground for rejecting the application for amendment opposite party to be compensated by costs. He placed reliance on Baldev Singh and Ors. vs. Manohar Singh and Another, (2006) 6 SCC 498 for the proposition that Courts are inclined to be more liberal in allowing amendment of written statement than of plaint and, therefore, amendment cannot be disallowed. According to him, Order VI Rule 17 including the proviso is a procedural provision relating to amendment of plaint or written statement and the limitations in respect thereof and, therefore, the same should be interpreted to advance and not retard or defeat justice. He relied on Salem Advocate Bar Association, T.N. vs. Union of India, (2005) 6 SCC 344 and 365 at para 26 (3 Judges) that the object of proviso is to prevent frivolous applications which are filed to delay the trial. Placing reliance on Kailash vs. Nanhku and Others, (2005) 4 SCC 480, 495 para 28, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of trial . The proviso is directory and not mandatory and calls for substantial and not rigid compliance: Mr. Vakil submitted that merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts may keeping in view the entire context in which the provision came to be enacted, held the same to be directory [As held in Kailash vs. Nankhu Ors. (supra)]. According to him, the rigid interpretation of the proviso can lead to manifest injustice and that the word 'shall' in the proviso should be interpreted to mean 'may'. According to Mr. Vakil, in this case, there is substantial compliance with the purpose underlying the proviso viz. that matter sought to be urged by proposed amendments have been raised in the suit before the commencement of trial and is/are not new matters raised for the first time by way of amendment of the written statement. In the facts of the present case, it is not disputed that the contention in proposed amendment were already raised in the proceeding at the earlier point of time as well as before this Court. The civil application for production of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation-in-chief of documents produced or takes evidence by cross-examination of any witness in presence of both the parties and the Court or its agency. According to him, the issues were framed on 28.09.2005 and application for re-casting issues was rejected on 21.10.2005 and the respondent/plaintiffs filed affidavit in examination-in-chief of plaintiffs' witness No.1 on 21.11.2005. The application Ex.95 for leave to amend the written statement was filed on 24.11.2005 and at this stage the Court had not relied on the proof or admissibility of any document as contemplated by the proviso to Order 18 Rule 4 (1) or taken the evidence (cross examination) and re-examination of P.W. No. 1 as contemplated by Order 18 Rule 14 (2). Therefore, he submitted that the application Ex.5 has not been filed after the commencement of the trial. It was further submitted that the contention of the applicant that for the first time that simple copy was made available only on 19.11.2005 was not denied by the respondent and the present application Ex. 95 moved on 24.11.2005. Under the circumstances as the applicant has already raised this point before the High Court as well before this Court and as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is absconding. Thus, in the present application, the prayer is not made by the appropriate party and therefore, it is liable to be rejected. The finding of the trial Court is at page 608 of Vol.III:- As per the say of Shri Patel the judicial proceedings of the present case started on 28.09.2005 and in that connection present application was filed on 24.11.2005. Therefore, the defendant No. 1 should satisfy the Court that he was aware about the present application. I have no reason to disbelieve the same. The above submission assumes significance for the reason that first defendant is a proclaimed offender. The proclamation has been issued under Section 82 of Cr.P.C. for the alleged commission of certain offences. He has not yet surrendered to the Court. In page 4 of the counter affidavit, it is stated as under: The petitioner No. 1 is still absconding and has been declared as a proclaimed offender under Section 82 of the Criminal Procedure Code. However, he appeared in the contempt proceedings on 03.10.2005 and 05.10.2005. On the above facts, the submissions are as follows: (a) There is no valid application for amendment by the first defendant. (b) Defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 Rule 17, 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. Order VI Rule 17 main part uses the phrase 'the court may at any stage . The proviso uses the phrase no application for amendment shall be allowed . The submission of the learned senior counsel is that when in the same section of an Act the word may is used in one place and shall in another place, may will have to be interpreted as may and shall will have to be interpreted as shall. In such instances, may should not be interpreted as shall and shall should not be interpreted as may. The following rulings were relied on by the learned counsel for the above proposition:- 1. Labour Commissioner vs. Burhanpur Tapti Mills (1964(7) SCR 484 at 488) 2. Jamatraj Kewalji Govani vs. State of Maharashtra (1967(3) SCR 415 at 420) 3. T.R. Sahrma vs. Prithvi Singh and another (1976(2) SCR 716 at 721) 4. Mahalaxmi Rice Mills vs. State of U.P (1998 (6) SCC 590 at 594) 5. Chairman, Canara Bank vs. M.S. Jaera (AIR 1992 SC 1341 at 1346) He fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the pleadings including even the plaint as could be seen from H.J. Leach vs. Jardine Skinner, 1957 SCR 438 at 450 and Gurdial Singh vs. Raj Kumar Aneja, AIR 2002 SC 1003. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose. Utlimately to strike a balance the Legislature applied its mind and re-introduced Rule 17 by Act 22 of 2002 w.e.f. 1.7.2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration. Reliance was placed on the judgment of this Court in Salem Bar Association case (supra). In this case, this Court dealt with Order 6 Rule 17 at para 26. Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be allowed after the trial has commenced, unless inspite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order VI Rule 17 was due to the recommendation of the Law Commission since Order 17 as it existed prior to the amendment was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by Civil Procedure Code (Amendment} Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the Rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leas for the first time are sought to be raised by the appellants. 29.11.2005 Reply to the application for written statement was filed by the plaintiffs respondents at Exh. 97. The appellants defendants requested for time for filing the rejoinder thereto. 03.12.2005 The appellants defendants filed rejoinder. 05.12.2005 The hearing of the amendment application commenced and since the Court time was over, the matter was adjourned to 09.12.2005. 09.12.2005 That as the learned Presiding Judge of the trial Court was on leave, therefore, the matter was adjourned to 14.12.2005. 14.12.2005 The plaintiffs' Advocate made submission opposing the amendment application. The matter was thereafter adjourned to 17.12.2005. 17.12.2005 By an administrative order, the matter was transferred to another Court. 23.12.2005 The learned Presiding Judge was on leave. 25.12.2005 The defendants' Advocate argued the amendment application. 02.01.2006 The plaintiffs made submissions, opposing the amendment application and for rejoinder matter was adjourned to 09.01.2006. 06.01.2006 The Special Leave Petition No. 26472 of 2005 and 334 of 2006 filed by the appellants herein, chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of adjournments, the evidence of 3rd witnesses, namely, plaintiff No.1 as well as 2 and other witnesses on behalf respondents/plaintiffs were completed. In our opinion, the facts above-mentioned would also go to show that the appellants are lacking in bona fide in filing this special leave petition before this Court. It is also to be noticed that the High Court has recorded relevant points in its elaborate judgment dated 05.10.2005 and have been dealt with despite the opposition of the contesting respondents that these pleas were not taken in the written statement. Under these circumstances, non-seeking of appropriate amendment at appropriate stage in the manner envisaged by law has dis- entitled the appellants to any relief. The amendment, in our view, also seeks to introduce a totally new and inconsistent case. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex. 95. No facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the present defendant in the Civil Appeal filed before the Apex Court, in the Appeal From Order in the second round before this Court and again in a special leave petition filed before the Apex Court in the second round. Hence the defendants can not plead absence of knowledge after exercise of due diligence. If this be the position the approach adopted by the trial Court can not be stated to suffer from any infirmity so as to call for intervention at the hands of this Court in a petition under Article 227 of the Constitution of India. In the instant case, the appeal was filed in the second round on 09.10.2002 as could be seen from the dates and events mentioned in the counter affidavit. Special Leave Petition in this Court was filed on 07.07.2004. Additional written statement has been filed on 24.11.2005. Delay in filing the additional written statement from 09.10.2002 to 24.11.2005. From 09.10.2002, the matters sought to be introduced by defendant by way of additional written statement was known to defendant/appellant. The application in respect of additional written statement does not make an unequivocal averment as to due diligence. The averment only reads as follows:- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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