NEELAKANDAN NAIR Vs. PARAMESWARA KURUP
HIGH COURT OF KERALA
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(1.) The revision petitioner is the plaintiff before the Court below and he is aggrieved by the order passed by the learned Munsiff on an application for amendment of the plaint under O.6, R.17. The suit as instituted initially was one for injunction simpliciter. On the allegation that during the pendency of the suit, the defendants perpetrated trespass and therefore the proposed amendments were necessitated and the application for amendments was filed. The contention of the respondents / defendants was based on the proviso to O.6, R.17 introduced by the Code of Civil Procedure Amendment Act, 2002 under which the amendments will not be allowed after the commencement of the trial 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'. The learned Munsiff had accepted this contention since he did not find any averment in the affidavit in support of the amendment application in the context of the proviso. The amendment application was filed admittedly before any of the parties or other witnesses were examined in the suit. According to the learned Munsiff, it is well settled position that trial in a civil case commences with the raising of issues.
(2.) Shri. N. Ashok Kumar, learned counsel for the petitioner assails the order of the learned Munsiff on two reasons: (1) According to the learned counsel, the proviso referred to by the learned Munsiff does not apply to the present case since the original pleadings in respect of which amendment was sought for was instituted prior to 1.6.2002 when S.7 of Act 22 of 2000 as well as S.16 of Act 46 of 1999 was put into force. The expression 'trial' in the context of proviso to O.6, R.17 according to the learned counsel, means actual trial meaning examination of witnesses or adducal of other evidence in the suit. Even though the learned counsel for the respondents supported the impugned order very much, I do not find any difficulty in accepting the submissions of the learned counsel for the revision petitioner. S.16(2)(b) of the Code of Civil Procedure Amendment Act, 2002 clearly shows that the provisions of R.17 of O.6 as amended by S.16 of C.P.C. Amendment Act, 1999 or by S.7 of the C.P.C. Amendment Act, 2002 will not apply in respect of a pleading filed before the commencement of S.16 of the Amendment Act, 1999 and S.9 of the Amendment Act, 2000. Thus the suit on hand will not be governed by O.6 R.17 as it stands now.
(3.) I am also of the view that the learned Munsiff is not correct in his view as to the point of time when trial commences for the purposes of the proviso to O.6 R.17 as amended by the Amendment Act of 2002. The expression 'trial' is of very wide import. In its widest sense, trial will include all proceedings right from the stage of institution of a plaint in a civil case to the stage of its final determination by a judgment and decree of the Court. In a slightly narrower sense, trial connotes, as the learned Munsiff observes the stage from the formulation of issues till the final judgment. In a still narrower sense which in my opinion is the common parlance idea of trial it will mean only the stage of actual adducal of evidence - documentary or oral. The Supreme Court held in the context of summary suits under O.37 as well as S.10 of the C.P.C. that the meaning to be given to the expression 'trial' will depend upon the nature and object of the provision and the context in which it is used and went on to hold that having regard to the scheme of the summary procedure provided by O.37, a stage of determination of the matter in issue arises only after the defendants obtain leave and therefore trial in that context will really begin (emphasis supplied) only after the leave is granted to the defendants.;
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