Allowed

Shri K. Ganeshan and Anr., v. Shri Shambu D. Gauns and Anr.

Bombay HC17 Feb 2014WP/55/2014

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Bombay at Goa quashed two trial Court orders allowing an amendment to the defendants' written statement and dismissing a recall application, holding that the trial Court violated principles of natural justice and failed to properly consider CPC provisions regarding belated amendments.

What did the court decide?

The impugned orders allowing the amendment and dismissing the recall application were quashed. The trial Court is directed to give the plaintiffs an opportunity to file a reply before deciding the ame

Shri K. Ganeshan and Anr., Vs Shri Shambu D… — Civil Procedure and Limitation | Bombay HC (2014)

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WP55/14

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 55 OF 2014

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1.	SHRI K. GANESHAN, s/o Kannayaram, aged 65 years, married, retired, Indian National, r/at H. No. 3(1), Mala, Chandel, Pernem, Goa.
2.	SMT. KAMAXI GANESHAN, wife of Shri K. Ganeshan, major, married, housewife, r/at H. No. 3(1), Mala, Chandel, Pernem, Goa. .. Petitioners.
	Versus
1)	SHRI SHAMBU D. GAUNS, s/o Shri Dasharath Gauns, major, married, aged 45 years, Bus Owner, r/at Chandel, Pernem, Goa.
2)	SMT. SULOCHANA S. GAUNS, wife of Shri Shambu Gauns, major, married, aged 35 years, Nurse, working at Purva Hospital, r/at Chandel, Pernem, Goa. .. Respondents.
Mr.	Shivan Dessai, Advocate for the petitioners.
Mr.	S. Karpe, Advocate for the respondents.

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CORAM :- U. V. BAKRE, J. DATE : 17th February, 2014

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ORAL JUDGMENT :

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Heard Mr. Dessai, learned Counsel appearing on

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behalf of the petitioners and Mr. Karpe, learned Counsel appearing on behalf of the respondents.

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2. Rule. Rule is made returnable forthwith. By consent, heard forthwith.

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3. By this petition, the petitioners have taken exception to the orders dated 16/12/2013 and 22/01/2014, passed by the learned Civil Judge, Senior Division at Pernem, Goa ('trial Court') in Regular Civil Suit No.17/2006.

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4. The petitioners are the original plaintiffs whereas the respondents are the original defendants in the said Regular Civil Suit No. 17/2006 pending before the learned trial Court. For the sake of convenience, the parties shall be referred to as per their designation in the said suit.

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5. The defendants have filed their written statement in the said suit thereby disputing the case of the petitioners. The defendants filed an application dated 21/11/2013 for amendment of the written statement. By order dated 16/12/2013, the learned trial Court allowed the said amendment application. In the said order, the learned trial Court observed that the learned Advocate for the defendants submitted that the Advocate for the plaintiffs

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had refused to accept the copy of the amendment application on the last date of hearing when Presiding Officer was not sitting and was on leave and that the said Advocate for the plaintiffs had also refused to accept the copy of the amendment application when he had visited the office. The trial Court observed that the fact of refusal of the copy of the amendment application in the Court was confirmed from the Bench Clerk of the Court. The learned Advocate for the respondents was directed to file affidavit of the defendants in respect of the refusal of the acceptance of copy of the amendment application by Advocate for the petitioners, at his office. The trial Court observed that the matter was taken up on priority basis on account of the direction given by the High Court by order dated 28/10/2013. The trial Court observed that the time to dispose of the suit was further extended till 30/04/2014. He held that in the facts and circumstances of the present case, there was absolutely no reason for the petitioners or their Advocate to refuse to accept the copy of the amendment application. The trial Court held that the only inference that can be drawn from the above is that the plaintiffs are trying to delay the matter without any valid reason. The learned trial Court, therefore proposed to decide the application for amendment without hearing the plaintiffs. The trial Court held that it is satisfied that the said amendment is very much necessary to

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determine the real question in controversy between the parties and that the same appears to be of clarificatory nature, which shall not change the nature of the proceedings. It was further observed that it should be appreciated that the Court had allowed similar application belatedly filed by the plaintiffs after closing evidence of the defendants vide order dated 07/10/2013. The trial Court held that by applying the same principle of law and by applying the principle of parity, the present application also deserves to be granted. The trial Court held that the decision of the Hon'ble Apex Court in the case of “Rajesh Kumar Aggarwal Vs. K. K. Modi”, [AIR 2006 SC 1647] also applies to the facts of the present case. The trial Court held that it is settled that amendment to the written statement should be more liberally granted as compared to the amendment of the plaint.

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6. The plaintiffs then filed an application dated 21/12/2013 before the trial Court for recall of the order dated 16/12/2013. It was pointed out in this application that the trial Court had fixed the suit for re-examination of plaintiff no.1 on 15/11/2013 and that subsequently, the same was posted on 21/11/2013 and 30/11/2013 and in view of the fact that the Judge was on leave, the matter was adjourned and posted for reexamination of plaintiff no.1 on 16/12/2013 at 2.30 p.m. The

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plaintiffs further explained that on 15/11/2013, the defendants sought time to engage a new Advocate and on 21/11/2013, Advocate Teli, junior colleague of Advocate A. F. D'Souza, Mapusa appeared and tried to present the application for amendment with a prayer to serve a copy on the Advocate for the plaintiffs, though the suit was posted for plaintiffs' evidence. The plaintiffs further stated that there was no refusal on the part of their Advocate on 21/11/2013 and there was only a conversation that he will accept the copy on the next date of hearing. The plaintiffs further stated that thereafter the suit was taken up on 30/11/2013 and the Bench Clerk, instead of affording the Advocate for the plaintiffs a convenient date of 17/12/2013, gave the date as 16/12/2013 at 2.30 p.m., though it was pressed that the said date was not convenient to the Advocate. In the said application, the plaintiffs further stated that on 16/12/2013, the advocate for the defendants appeared and made false statements about 'refusal' without support of any proof. It was alleged that the defendants and their Advocate misled and misguided the Court. It was, therefore, urged that the order dated 16/12/2013 was improper without giving any opportunity to file their reply and to advance arguments. The plaintiffs, therefore, prayed for recall of the order dated 16/12/2013.

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7. By order dated 22/01/2014, the learned trial Court dismissed the application for recall. It was held that the perusal of the material on record transpires that the learned Advocate for the plaintiffs did not accept the copy of the amendment application on 21/11/2013, in the Court itself. The trial Court held that the conduct of the learned Advocate for the plaintiffs was not proper and that nothing had prevented him from accepting the copy of the amendment application which was placed on record by the defendants in the Court file. It was held that refusal to accept the copy was without any sufficient reason and, therefore, the order dated 16/12/2013 passed without hearing the plaintiffs, does not suffer from any illegality.

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8. Mr. Dessai, learned Counsel appearing on behalf of the plaintiffs submitted that the application was filed in the Court on the date when the matter was fixed for re-examination of plaintiff no.1 and that the copy of the same was sought to be given to the advocate for the plaintiffs on a day when the presiding officer was on leave. He further submitted that without hearing the Advocate for the plaintiffs and in the absence of the plaintiffs or their Advocate, the application for amendment was allowed. He submitted that no notice of the amendment application was given to the plaintiffs. He submitted that it is

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true that the defendants had attempted to serve a copy on the learned Advocate for the plaintiffs, however, the Advocate for the plaintiffs was not bound to accept the said copy legally though morally he could have accepted the same. He pointed out that the learned Advocate for the defendants was directed to file affidavit regarding refusal of the acceptance of the copy by the Advocate for the plaintiffs. He submitted that as on 16/12/2013, no such affidavit was filed. He submitted that since the matter was not fixed for filing any application for amendment, the learned trial Court ought to have given an opportunity to the petitioners to file reply to the said application and ought to have posted the matter for arguments on a future date. He submitted that the issues were already framed and the matter was at the stage of trial and that in terms of proviso to Order VI, Rule 17 of the C.P.C., no application for amendment can be allowed after the trial had commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial. He submitted that there is no compliance with the said proviso. The learned Counsel submitted that the principles of natural justice have not been followed. He, therefore, urged that both the impugned orders be quashed and set aside.

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9. On the contrary, Mr. Karpe, learned Counsel appearing on behalf of the defendants, submitted that the conduct of the plaintiffs was such that they did not deserve any opportunity of being heard. He submitted that the attempt of the plaintiffs was only to delay the matter in which there is High Court direction to dispose of the same on or before 30/04/2014. He submitted that the petitioners have made false averments in the application for recall of the order dated 16/12/2013. He submitted that actually, it is an admitted fact that the Advocate for the plaintiffs had refused to accept the copy of the amendment application in the Court as well as in the office of the Advocate for the plaintiffs. The learned Counsel further submitted that previously, the plaintiffs had also filed an application for amendment the plaint, which was also after the issues were framed and the trial Court had allowed the said application, though it was filed after the evidence of the defendants was closed. He, therefore, submitted that the trial Court, by applying the principles of parity and by satisfying itself that the amendment was necessary to determine the real question in controversy between the parties, allowed the same. According to him, there is no perversity in the impugned orders and, therefore, this Court should not interfere with the same in the exercise of writ jurisdiction.

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10. I have perused the entire material on record. I have also considered the submissions made on behalf of both the parties.

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11. Indisputably, the application for amendment of the written statement filed by the defendants was decided by the trial Court without giving opportunity to the plaintiffs to file reply to the same and also without hearing the learned Advocate for the plaintiffs. The said application for amendment of the written statement had come before the trial Court, for hearing, admittedly, for the first time on 16/12/2013. The trial Court could not have asked the bench clerk and believed him. Though the trial Court had directed the Advocate for the defendants to file affidavit of the defendants in respect of refusal of acceptance of copy of the amendment application by Advocate of the plaintiffs at his office, it did not wait for such an affidavit to be filed and decided the application on the same day. Therefore, it was the duty of the trial Court to have given an opportunity to the plaintiffs to file reply to the same. Merely on the ground that the Advocate for the plaintiffs had refused to accept the copy of the amendment application prior to its filing in the court, that was not sufficient for the trial Court to hear the application without giving opportunity to the plaintiffs to file reply to the same and

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thus violate the principles of natural justice. Though there was no reply filed by the plaintiffs and though the plaintiffs or their Advocate were not heard, the trial Court has observed that there was absolutely no reason for the plaintiffs or their Advocate to refuse to accept the copy of the amendment application of the defendants. Such a remark could not have been passed without hearing the plaintiffs or their Advocate. The question of applying principle of parity to the case cannot at all be permissible. The application filed by the plaintiffs earlier must have been allowed because there was merit in the said application and the ingredients of proviso to order VI, Rule 17 of the C.P.C. were complied with. If that was not so, the application for amendment of the plaint would not have been allowed. Insofar as the application for amendment filed by the defendants, is concerned, the same was filed much belatedly after the issues were framed and the trial had commenced. Proviso to Order VI, Rule 17 of the C.P.C. provides 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 the trial. Therefore, whether the defendants had acted with due diligence or not was one of the the main questions. The trial Court has not considered the aspect of the said proviso to Rule 17 of order VI of

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C.P.C., while deciding the application for amendment filed by the defendants.

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12. In the application for recall of the order dated 16/12/2013, the plaintiffs had specifically explained that on 30/11/2013, the Bench Clerk had fixed the matter on 16/12/2013 at 2.30 p.m. though the Bench Clerk was asked to give convenient date for Advocate of the plaintiffs which was 17/12/2013. The plaintiffs had specifically stated in this application that 16/12/2013 at 2.30 p.m. was not the date convenient to their Advocate, due to his personal commitments. It is pertinent to note that the learned trial Court did not even wait till the end of the afternoon session and pronounced the order by about 3.25 p.m. itself.

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13. In my considered view, the impugned orders are arbitrary and grossly in violation of the principles of natural justice and have been passed in the exercise of jurisdiction with material irregularity. The trial Court appears to have acted in undue haste only because there was direction from the High Court. I am, therefore, satisfied that the impugned orders are liable to be quashed and set aside.

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14. In the result, the petition is allowed.

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(a) The impugned orders dated 16/12/2013 and 22/01/2014 passed by the learned Civil Judge, Senior Division, Pernem in Regular Civil Suit No.17/2006 are quashed and set aside.

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(b) The learned trial Court shall give an opportunity to the plaintiffs to file appropriate reply to the application for amendment filed by the defendants and shall decide the said application after hearing both the parties, in accordance with law.

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15. The petition stands disposed of accordingly, with no order as to costs.

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SMA

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U. V. BAKRE, J.

Shri K. Ganeshan and Anr., v. Shri Shambu D. Gauns and Anr.

Case brief

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Shri K. Ganeshan and Anr., v. Shri Shambu D. Gauns and Anr.

Case brief

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What did the court decide?

What the court decided

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