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Badri Prasad Soni Vs. S. Kripal Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revision No. 603 of 1980
Judge
Reported inAIR1981MP228; 1981MPLJ606
ActsCode of Civil Procedure (CPC) , 1908 - Order 4, Rule 1 - Order 6, Rule 17 - Order 20, Rule 3
AppellantBadri Prasad Soni
RespondentS. Kripal Singh
Appellant AdvocateT.C. Naik, Adv.
Respondent AdvocateG.C. Bhatia, Adv.
DispositionRevision allowed
Cases ReferredArjun Singh v. Mohindra Kumar (supra). The
Excerpt:
- - mohindra kumar (supra) held that in view of the expression 'the court has adjourned the hearing of the suit ex parte and the defendant at or before such hearing appears and assigns good cause':an application under order 9. rule 7 of the code of civil procedure is maintainable only when the case is adjourned for bearing and is not maintainable after the stage of hearing has passed, and in its view the hearing was closed when the judgment was reserved. i am of the view that the trial court has, on an erroneous view about its competency to consider that application for amendment on its merits, failed to exercise the jurisdiction vested in it......that this expression does not limit the power of the court to allow the amendment only up to the stage of hearing of the final arguments. the court is competent to permit the amendment even when after hearing the final arguments, the case is reserved for judgment, as till then the court has seisin of the matter. he further argued that when the amendment can be allowed even at the stage of the second appeal and even when the matter is pending before the supreme court there is no reason to hold that the word 'proceedings' does not include the stage when the judgment has to be delivered by the trial court. the learned counsel for the plaintiff relied for support of his averments on a decision in s. burrayya v. atchayyamma. air 1959 andh pra 26. he further argued that the powers of the.....
Judgment:
ORDER

U.N. Bhachawat, J.

1. The present revision has been filed by the plaintiff and has arisen in the following manner.

2. Plaintiff has filed the suit for eviction of the defendant-non-applicant herein from the suit shop alleging that he bona fide needs the suit shop for settling his son-in-law who along with his daughter is living with him and is dependent on him for maintenance. The relevant averment in the plaint are as under:

'2. Plaintiff has one issue -- Smt. Asha Bai. She has been married with Shri Deenak Kumar. They live with the plaintiff as members of his family. They depend on him for their maintenance.

3. Plaintiff is old and has now developed cancer. He may close his eves any day. He therefore wants to settle his son-in-law by opening a shop of Jewellery--will make a show room and self Silver wares and Silver ornaments etc. Plaintiff will open a shop for him with a capital of Rs. 20,000/- which plaintiff has got. Plaintiff's son-in-law for whom he requires the premises in suit is not in possession of premises of his own in the town of Jabalpur for the purpose aforesaid.'

3. The suit has been resisted by the defendant controverting the main plaint allegations. After the arguments were heard and the case was posted for delivery of judgment on 15-2-1980, on this date, the plaintiff made an application to amend his plaint so as to add the following at the end of paragraph 3 of the plaint.

'The premises in suit are held for the benefit of Deepak Kumar who is the only male member in plaintiff's family entirely dependent on him.'

4. The application was opposed by the defendant.

5. The trial Court vide the impugned order dismissed the application only on the ground that no such application is maintainable after the final arguments were heard and the case was reserved for judgment.

6. The trial Court came to this conclusion relying on the decision of the Supreme Court in Arjun Singh v. Mohindra Kumar AIR 1964 SC 993. The relevant cart of the order roads as under:-- (Matter in Vernacular hence omitted -- Ed.).

The arguments of the learned counsel for the plaintiff were that the expression used in Order 6, Rule 17 of Civil P. C. is 'at any stage of the proceedings allow either party to alter or amend his pleading' and contended that this expression does not limit the power of the Court to allow the amendment only up to the stage of hearing of the final arguments. The Court is competent to permit the amendment even when after hearing the final arguments, the case is reserved for judgment, as till then the Court has seisin of the matter. He further argued that when the amendment can be allowed even at the stage of the second appeal and even when the matter is pending before the Supreme Court there is no reason to hold that the word 'proceedings' does not include the stage when the judgment has to be delivered by the trial Court. The learned counsel for the plaintiff relied for support of his averments on a decision in S. Burrayya v. Atchayyamma. AIR 1959 Andh Pra 26. He further argued that the powers of the Court for permitting the amendment are very wide: the amendment should be allowed as a rule: refusal is an exception. He further argued that there is already a foundation in the pleading of the plaintiff for the allegations sought to be raised by way of proposed amendment. The proposed amendment is only an elaboration of a plea which is already impliedly covered in plaintiff's pleading and as such the lower Court ought to have allowed the proposed amendment, It was also submitted by the learned counsel for the plaintiff, during the course of his argument that the plaintiff would not lead any evidence in support of the proposed amendment and as such there is no ground for not allowing the proposed amendment particularly when it is not mala fide.

7. The argument of the learned counsel for the defendant was mainly this that by the proposed amendment the plaintiff wanted to set up altogether a new case. Originally the case of the plaintiff is that he is the owner of the suit premises as is obtainable from the Plaint paragraph 1 whereas by the proposed amendment the plaintiff wants to contend that he is holding the suit premises not as an owner but as a trustee for his son-in-law. The plaintiff cannot be permitted to set up a new case.

8. The first point for consideration is whether the Court can permit the amendment at the stage when the case is reserved for judgment. This calls for an interpretation of the word 'proceedings.'

9. In Halsbury's Laws of England, Third Edition. Volume 1, pages 5-6, para 7, it is laid down.--The term 'proceeding' is frequently used to denote a step in an action, and obviously it has that meaning in such phrases as 'proceeding in any cause or matter.' When used alone however, it is in certain statutes to be construed as synonymous with, or including, 'action'; and in para. 8 regarding the termination of an action, it is laid down -- 'An action, in the strict sense of the term, ends at judgments). Thus a provision as to the costs of an 'action' does not affect the costs of an appeal against the judgment therein: so it was ruled that a release of 'all actions' would not bar execution upon a judgment already obtained: secus a release of 'all suits', for without 'suit or prayer' none could have execution.'

10. The word 'proceedings' is defined in the Shorter Oxford Dictionary as doing a legal action or process, any act done by the authority of a Court of law.

11. In 'Words and Phrases' permanent Edition, Volume 34. various meanings are given: two of them which I shall just set out, bring out the essential import of the word, 'proceeding', (i) The word 'proceeding' ordinarily relates to forms of law, to the modes in which judicial transactions are conducted '(page 141) -- (ii)'. The term 'proceeding' is a very comprehensive term. and. generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoiced (pane 142).

12. In Ganga Naicken v. A. Sundaram Ayyar, AIR 1956 Mad 597. Krishna-swami Nayudu, J. held that the meaning to be given to the word 'proceeding' would depend on the scope of the enactment in which it occurred and the context in which the word was used.

13. In China v. Harrow Urban District Council. (1953) 2 All ER 1296 (1300) it has been observed to the effect that 'proceeding' is a word with a larger meaning than 'action'. Every action is a proceeding; but it is not possible to say that every proceeding is an action.

14. The suit is commenced on the pre-sentation of plaint as is obtainable from Order 4, Rule 1 Civil P. C. instituted as 'Suit to be commenced by plaint' and is disposed of so far as the trial Court is concerned, on the pronouncement of judgment under Order 20. Rule 3 of the Civil P. C. This being the position regarding the commencement of the suit and its termination in the trial Court, in the light of the discussion contained in the preceding paragraph of this order, the irresistible conclusion is that delivery of judgment by the trial Court is a stage in the proceeding. In this view of the matter, it can safely be held that because of the expression 'at any stage of the proceedings' employed in Order 6, Rule 17 of the Civil P. C., the Court is competent to allow either party to alter or amend his pleading any time before the judgment is pronounced as till then the Judge has the seisin Over the case and is not functus officio This view is in line with the view taken by the Andhra Pradesh High Court in S. Burrayya v. S. Atchayyamma (AIR 1959 Andh Pra 26) fsupra). The relevant observation reads as under:

'This rule empowers a Court to allow either party to alter or amend his pleadings at any stage of the proceedings etc.'

It implies that so long as the Court is in seisin of the proceedings, it is competent for it to allow amendment of the pleadings. Till the suit reaches the stage of final decree, the proceedings must be deemed to be pending in that Court with regard to a partition suit. The judgment of their Lordships of the Privy Council in Jadhunath v. Parame-swar AIR 1940 PC 11 is an authority for that position.

'If the suit is not concluded by the passing of the final decree and is only at the stage of the preliminary decree, we think it is competent for the Court to allow amendment of the pleadings. (See Latchayya v Seethamma, AIR 1932 Mad 275). That apart, the language of Section 153, C. P. C. is in wide terms and confers powers on a Court to correct errors in any proceeding at any stage in order to determine the real question. These two provisions are meant to enable the Court to decide the points in issue and to render justice to the parties.'

15. I may hasten to observe that the aforesaid discussion is only with reference to the competence of the Court regarding the stage up to which it can permit amendment. Whether an amendment should be allowed in a particular case or not is a matter to be decided by the Court in the light of the facts and circumstances of an individual case.

16. The upshot of the above discussion is that the trial Court was not right in holding that it had no jurisdiction to allow amendment after the close of the case when it was reserved for judgment. The Supreme Court case Arjun Singh v. Mohindra Kumar. (AIR 1964 SC 993) (supra) relied upon by the trial Court to support its view has not been correctly understood by the trial Court. The decision was in the context of the interpretation of the words. 'Where the Court has adjourned the hearing of the suit ex parte': here in Order 6. Rule 17 of the Code of Civil Procedure, the expression is 'at any stage of the proceedings'. The Supreme Court in Ariun Singh v. Mohindra Kumar (supra) held that in view of the expression 'the Court has adjourned the hearing of the suit ex parte and the defendant at or before such hearing appears and assigns good cause': an application under Order 9. Rule 7 of the Code of Civil Procedure is maintainable only when the case is adjourned for bearing and is not maintainable after the stage of hearing has passed, and in its view the hearing was closed when the judgment was reserved. The expression 'at any stage of the proceedings' was not for interpretation before the Supreme Court in Arjun Singh v. Mohindra Kumar (supra). The two are the distinct expressions and no analogy can be drawn from the interpretation of one for the interpretation of the other. The net of the power of the Court so far as amendment is concerned is wider in view of the expression 'at any stage of proceedings' and not 'hearing'.

17. As a result of the foregoing discussion. I am of the view that the trial Court has, on an erroneous view about its competency to consider that application for amendment on its merits, failed to exercise the jurisdiction vested in it.

18. The second question that arises is about the merits of the application.

19. The argument of the learned counsel for the plaintiff was that the proposed amendment is nothing but an elaboration of a ground which has its seed in the plaint; whereas according to the learned counsel for non-applicant-defendant, it was altogether a new ground which cannot be permitted.

20. Elaborate arguments were advanced from both the sides on this question. As the matter is pending decision before the trial Court and lest any observation made by this Court may cause embarrassment to the trial Court in its decision on the merits of the case as it will also have to be considered whether the amendment is impliedly covered in the averments already made or not with reference to constitution of a ground under Section 12(1) (ft of the M. P. Accommodation Control Act. and the trial Court has also not applied its mind on the merits of the question of allowing the amendment, I consider it advisable to set aside the impugned order and send the case back to the trial Court with the direction that it shall re-hear the parties on the merits of the amendment application dated 15-2-1980 and decide it on merits in the light of the observations made in this order.

21. In the result, the revision is allowed as indicated hereinabove. I make no order as to costs.


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