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Judgment
The present writ petition has been filed by the petitioner challenging the order dated 4th November, 2020 whereby the Commercial Court No.1, Jaipur
Metropolitan-II has allowed the application filed under Order 6 Rule 17 CPC for amendment in the written statement.
Learned counsel for the petitioner has further prayed that the interpretation of status quo has also been made while deciding the application of
amendment in written statement, and the same is also required to be set aside by this Court. Prayer is further sought that the respondent be directed
not to carry any construction on the project site, till the pendency of arbitration application before the Commercial Court.
Learned counsel submitted that petitioner herein has filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (in short 'the Act
of 1996'). Learned counsel further submitted that on filing of the said application by the petitioner, notice was issued to the respondent and the
respondent filed reply/written statement (as mentioned in Court below) to application filed by the petitioner.
Learned counsel further submitted that the Court below on 16th October, 2020 also passed ad-interim order and had appointed the Commissioner to
visit the site and file the report before the Court below. The Court below also directed both the parties to maintain status quo as per report of the
Commissioner.
Learned counsel submitted that the order dated 16 th October, 2020 was continuing and thereafter the respondent filed an application under Order 6
Rule 17 CPC to make certain amendments in the reply/written statement which was already filed.
Learned counsel submitted that the provisions of Civil Procedure Code are not applicable while deciding the application for interim relief as per
Section 9 of the Act of 1996.
Learned counsel further submitted that the nature of amendment sought in the written statement to application was also not required for determination
of the controversy for the purpose of considering the application under Section 9 of the Act of 1996.
Learned counsel further submitted that the amendments sought for were not in the nature of any subsequent developments or facts and same were in
knowledge of the non-applicant and as such, the Court below has wrongly allowed the amendment application vide order dated 4th November, 2020.
Learned counsel for the petitioner-Mr. Ajatshatru Mina, further submitted that the Court below while deciding the application under Order 6 Rule 17
CPC has further clarified in para 9 of the order as what would be the meaning of ""status quo"" and as such, the Court below could not have given new
interpretation to the order of ""status quo"" which was already passed.
Learned counsel for the petitioner further submitted that by permitting the amendment while applying Order 6 Rule 17 CPC, it will tantamount to have
a regular hearing like a civil suit and the same is not the intent, as per the Act of 1996. Learned counsel submitted that only Section 19 provides for
certain procedures to be followed in the arbitral proceedings and such stage has not reached yet as the competent Court has to decide the application
filed under Section 9 of the Act of 1996.
Per contra, learned counsel for the respondent-caveator Mr. Rahul Kamwar submitted that reply to the present petition has been filed today.
However, learned counsel submitted that he is prepared to argue the matter.
Learned counsel for the respondent further submitted that it is correct that strictly the provisions of Civil Procedure Code are not applicable while
deciding the application under Section 9 of the Act of 1996, however, the Court below is required to give adequate opportunity to both the parties to
plead their case and further to permit them to prove certain documents or developments which may have taken place during pendency of the
application for interim measure.
Learned counsel further submitted that if this Court is not inclined to accept the submission of the counsel that provisions of CPC are not applicable to
the Section 9 of the proceedings, at least opportunity should be given to the respondent to place complete facts before the Court below before any
decision is taken on the application of interim measure under Section 9 of the Act of 1996.
Learned counsel for the respondent submitted that the amendment, so allowed while invoking Order 6 Rule 17 CPC in the written statement, will give
adequate opportunity to the party to place all the material on record and as such, no illegality has been committed.
This Court is afraid to accept the submission of learned counsel for the respondent that the provisions of Order 6 Rule 17 CPC will be applicable for
amendment in the written statement, as has been ordered by the Court below while passing the order dated 4th November, 2020.
The application filed under Section 9 of the Act of 1996 is for the purpose of passing any order of interim measure and after filing of such application,
if reply has been filed by the contesting party, the same can be disposed of by considering the pleas which are taken by both the parties.
This Court further finds that instead of allowing the amendment in the written statement by invoking Order 6 Rule 17 CPC, the Court below can
always permit the parties to place on record certain documents by way of affidavit and the same can also be considered while deciding the application
under Section 9 of the Act of 1996.
This Court finds that the order passed by the Court below invoking Order 6 Rule 17 CPC, was not warranted in the present facts of the case.
Learned counsel for the respondent submitted that he would be satisfied if this Court permits the non-applicant to place on record the documents
which he wants to file by way of affidavit and the same may be allowed to be considered while deciding the application.
This Court accordingly allows the present writ petition and set asides the order dated 4th November, 2020 which has permitted the amendment in the
reply/written statement to application filed under Section 9 of the Act of 1996. However, opportunity may be afforded by the Court below to both the
parties to place on record the documents/any other relevant material by way of affidavit and the same can be looked into by the Court below while
considering the application filed under Section 9 of the Act of 1996 in accordance with law.
It is clarified that the observation made by the Court below, recorded in para 9 of the order dated 4 th November, 2020, with regard to interpretation of
status quo should not come in the way while deciding the application under Section 9 of the Act of 1996 and same should be decided independently
and without being influenced by clarification etc. Accordingly, the present writ petition has been disposed of.