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Judgment
V.B. Gupta, J.—Present petition has been filed under Article 227 of Constitution of India by petitioners challenging order dated 18.8.2010, passed by Additional District Judge, Delhi.
Vide impugned order, application of petitioners under Order 6 Rule 17 CPC (for short as ''Code'') seeking amendment in the written statement was dismissed.
Brief facts are that in year 2000, respondent (plaintiff in trial court) filed a suit for possession and mesne profits against petitioners (defendants in trial court). Petitioners filed their written statement on 28.8.2002 and issues were framed on 3.12.2004. In 2010, petitioners filed an application for amendment of their written statement. It would be pertinent to point out that trial commenced in 2004 when respondent was directed to lead its evidence. Petitioners have nowhere mentioned in the list of dates, as to what happened from 2004, till the date of filing of application for amendment.
By way of application under Order 6 Rule 17 of the Code, petitioners wants to incorporate contents of one declaration dated 22.7.1982 given by grand-father of petitioner No. 1 - Sh. Ishwar Dass Gambhir and father of respondent to the effect that suit property was purchased from the funds of M/s Ishwar Dass & Co., who had given money to his son i.e. respondent to raise construction over it, on the understanding that petitioner No. 1 shall be given first floor portion of the property after his marriage and which shall remain in his possession.
Petitioners by virtue of proposed amendment also sought to incorporate contents of an alleged affidavit dated 31.8.2000 of Smt. Lal Devi Gambhir, w/o Sh. Ishwar Dass Gambhir, the grand-mother of petitioner No. 1, where it was mentioned that an application was moved by Smt. Lal Devi Gambhir, before the Court of Sh. S.P.Garg in Civil Suit bearing No. 333/1989, stating that Sh. Ishwar Dass Gambhir had not executed any Will in favour of anyone in respect of suit property, rather the same was purchased from the funds of M/s Ishwar Dass Gambhir & Company.
Amendments sought for have been opposed by the respondent stating that the alleged declaration and affidavit, the contents of which are being sought to be incorporated in the written statement, were well within the knowledge of the petitioners, prior to the commencement of the trial. However, the same were deliberately concealed from the Court. Hence, application for amendment is malafide and a dilatory tactic on the part of the petitioners.
It is contended by learned Counsel for petitioners that trial court wrongly and illegally dismissed petitioners application. Petitioners were not in power and possession of the said documents, at the time of filing of the written statement earlier. The necessity to amend the written statement has arisen as additional facts/pleas, which are to be incorporated in the written statement, go to the very root of the case. Trial ought to have allowed the proposed amendments. In support, learned Counsel for petitioners cited following judgments:
a) State Bank of Hyderabad v. Town Municipal Council 2007 IV AD (SC) 393;
b) Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. 2006 III AD (S.C.) 478, and
c) Ranjit Kaur v. G.S. Sandhu and Ors. 2009 VI AD (Delhi) 757.
Present petition is under Article 227 of Constitution of India. So, the first question which arises for consideration is as to what is the scope of Article 227 of the Constitution of India. In M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., Supreme Court observed:
The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.
Admittedly, petitioners filed their written statement in 2002. Now, when the case is listed for evidence, after 8 years of filing of the written statement petitioners wants to amend the same. Trial court in this regard observed:
In the instant case, perusal of the record shows that the issues were firstly framed on 10.03.2003 and thereafter reframed on 03.12.2004. Thus, the trial had commenced from 03.12.2004 when the plaintiff was directed to lead his PE. The instant application for amendment of the WS on behalf of the defendants was moved on 18.03.2010. Thus, the instant application had been filed almost six years after the commencement of the trial. By virtue of Proviso to Order 6 Rule 17 CPC it becomes imperative for the defendant/applicant to show that these facts could not be brought before the Court, prior to the commencement of the trial, despite due diligence on their part. However, the defendant/applicant has no where stated as to when the two documents i.e. declaration, allegedly given by Sh. Ishwar Dass Gambhir and the alleged affidavit of Smt. Lal Devi Gambhir, came to their knowledge or in their possession. The bald assertion that the affidavit of Smt. Lal Devi Gambhir was not within the knowledge of the defendants, at the time of filing of the written statement or even at the stage of commencement of trial, falls flat on its face, since the alleged document already finds mention in the list of documents, filed by the defendants way-back on 09.09.2002. Perusal of the record reveals that even the declaration dated 22.07.1982 which is Exh. PW/D1 was relied upon by the defendants, at the time of cross-examination of the plaintiff on 29.08.2001, when the contents of the declaration were put to him. Thus, applicant/defendants were fully aware of the contents of the alleged declaration and the affidavit. It appears that the defendants have intentionally and deliberately suppressed these facts from the Court and now seek to incorporate the same by way of the instant application at such a belated stage. The matter is almost at the stage of conclusion of defendant''s evidence. Filing of an application for amendment in pleadings at such a belated stage, appears to be a malafide attempt on behalf of the defendants to frustrate the proceedings of the case. Moreover, allowing the same at this stage would amount to starting a de novo trial. Hence, it cannot be said that the defendant has acted with due diligence, rather has malafidely and deliberately concealed the facts from the Court, which are now being sought to be incorporated in the written statement by way of this amendment application. Thus, in view of the aforesaid discussion, the instant application is dismissed.
In entire application under Order 6 Rule 17 of the Code, it is nowhere stated as to on which date and how the alleged declaration and affidavit came to the knowledge of the petitioners or in their possession.
In Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors. JT 2007 (5) SC, Supreme Court observed;
From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement to trial.
Even assuming for arguments sake that proviso to Order 6 Rule 17 of the Code is not applicable to the present case, nevertheless petitioners have not mentioned at all in their application for amendment as to when they came to the knowledge or possession of the documents. Judgments cited by learned Counsel are not applicable at all to the facts of the present case.
Thus, present petition under Article 227 of Constitution of India is not maintainable at all as there is no infirmity, illegality or error in the impugned order. Present petition has been filed just to delay the proceedings pending in the trial court. Hence, this petition is hereby dismissed, with costs of Rs. 15,000/- (Rupees Fifteen thousand only).
Petitioners are directed to deposit the costs with Registrar General of this Court by way of cross cheque, within four weeks from today.
CM No. 15952/2010 (stay)
Dismissed.