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Judgment
G. Rajasuria, J.—Animadverting upon the order dated 23.10.2008 passed by the learned Subordinate Judge, Bhavani, Erode District in
I.A. No. 278 of 2008 in O.S. No. 12 of 2006, this civil revision petition is focussed.
An epitome and resume of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus:
The revision petitioner/plaintiff filed the suit O.S. No. 12 of 2006 seeking the following reliefs:
-declaring the plaintiff title to the suit property
-restraining the defendants, their men and agents from in any manner interfering with the plaintiff''s peaceful possession and enjoyment of the suit
property by means of a permanent injunction.
The defendants filed their written statement; the trial was also conducted and concluded and the matter was posted for judgment; while so, the
plaintiff filed I.A. No. 278 of 2008 u/s 151 of the CPC seeking permission of the Court to get the plaint amended so as to correct the Survey
Number as well as the measurement; whereupon, after hearing both the sides, the lower court dismissed the said application. Being disconcerted
by and dissatisfied with the order of the lower Court, this revision has been focussed on various grounds, inter alia thus:
The lower Court instead of allowing the said application simply dismissed it on the ground that the plaintiff had intended to delay the proceedings.
The lower court also failed to consider that the survey Number is of vital importance to prove the case of the plaintiff. Accordingly, she prayed for
setting aside the order of the lower court and for allowing the I.A.
Despite printing the name of the learned Counsel on both sides, no one represented.
A bare poring over and perusal of the order of the lower court and the typed set of papers would demonstrate and display, exemplify and
evince that the suit was filed in the year 2006 and thereafter the plaint was also amended twice; when the matter was posted for judgment, the
plaintiff came forward with such an application; the lower Court in its order at para No. 9 has succinctly and precisely set forth and put forth the
relevant facts, which transpired during trial as under:
Angammal purchased the property from one Ananda Asary, who had right over the land in S.F. No. 18/2 as per patta; subsequently Angammal
executed a Will in favour of the plaintiff''s vendor, who executed the sale deed in favour of the plaintiff; whereas the plaintiff would contend that the
survey number as well as the measurements are found wrongly mentioned in her sale deed; however, the lower Court observed that the four
boundaries are found mentioned in the sale deed in favour of the plaintiff and it is for her to prove and establish that the land within the said four
boundaries belonged to her. At the fag end of the suit, the plaintiff cannot rely on some settlement deed and try to gain support.
I could see sound ratiocination adopted and adhered to by the lower Court. It is for the plaintiff to prove her case with reference to the
boundaries. If what are all the plaintiff averred, is true, on her side, as per the available records it is for the Court to decide. Hence, she cannot on
some ground get the plaint amended. The laches on the part of the plaintiff cannot be tolerated and that too, in a matter of this nature. The affidavit
accompanying the I.A would evince and exemplify that it is not as though the plaintiff was not aware of certain defects in her own sale deed.
At this juncture, my mind is reminiscent and redolent of the decision of the Hon''ble Apex Court reported in 2008 (4) TLNJ 588 (Civil)
Vidyabai and Ors. v. Padmalatha and Anr. Certain excerpts from it would run thus:
By reason of the CPC (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code,
which reads as under:
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.
It is couched in a mandatory form. The court''s jurisdiction to allow such an application is taken away unless the conditions precedent therefore 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.
From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The
question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the
issues are framed is the date of first hearing. Provisions of the CPC envisage taking of various steps at different stages of the proceeding. Filing of
an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to ''commencement of proceeding''.
Although in a different context, a Three-Judge Bench of this Court in Union of India and others Vs. Major General Madan Lal Yadav (Retd.),
took note of the dictionary meaning of the terms ''trial'' and ''commence'' to opine:
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.
The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.
Order XVIII, Rule 4(1) of the Code reads as under:
Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the
opposite party by the party who claim for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof
and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
This aspect of the matter has been considered by this Court in Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd., in the
following terms:
The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 Order 18 speaks of examination-
in-chief. The unamended rule provided for the manner in which ""evidence"" is to be taken. Such examination-in-chief of a witness in every case shall
be on affidavit.
The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of
Order 18 of the CPC provides for cross-examination and re-examination of a witness which shall be taken by the Court or the Commissioner
appointed by it.
In Kailash Vs. Nanhku and Others, , this Court held:
At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word ''trial''
in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All
the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in
several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings
commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word ''trial''.
We may notice that in Ajendraprasadji N. Pandey and Anr. v. Swami Keshavprakeshdasji N. and Ors. [2006] 12 SCC 1, this Court noticed the
decision of this Court in Kailash (supra) to hold:
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.
Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1.7.2002. It had a provision
permitting 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.
As such, the dictum laid down by the Hon''ble Apex Court is squarely applicable to the facts and circumstances of this case. Hence, I could see no
merit in this civil revision petition and accordingly the same is dismissed confirming the order passed by the lower Court in I.A. No. 278 of 2008.
No costs. Consequently, the connected miscellaneous petition is closed.