- (1.) THIS revisional application is directed against order No. 51 dated December 9, 2009, passed by the learned Civil Judge (Junior Division), 3rd Court, Baruipur, 24-Parganas (South), allowing an application filed by the opposite party/plaintiff under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure.
(2.) THE opposite party/plaintiff filed the suit under reference for a decree of declaration that the attempt on the part of the petitioners/ defendants to obstruct the construction work of bricks amounts to interference in the peaceful enjoyment of the suit property. In the plaint, the opposite party stated that he had taken possession of the suit property and paid Rs. 22,46,879/- only time to time on different dates to different persons and the receipts granted thereof would be produced before the Court when required. THEreafter, at the time of examination-in-chief under Order 18 Rule 4 of the Code of Civil Procedure while tendering the documents showing payments to different persons, objections were raised on behalf of the petitioners. Consequent thereupon, the opposite party filed the application under reference under Order 6 Rule 17 of the Code of Civil Procedure for amending his plaint for complete adjudication of the matter. THE above application was allowed by the learned Court below. Hence this application. It is submitted by the learned Advocate, appearing on behalf of the petitioners, that in the impugned order there was a definite finding that the opposite party could not be said to have exercised due diligence. Therefore, according to him, the application under reference was liable to be dismissed in view of the provisions of proviso to Order 6 Rule 17 of the Code of Civil Procedure. He relied upon the decision of Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N and Ors. reported in (2006)12 SCC 1 to submit that that in absence of particulars which would satisfy the requirement of law, an application for amendment of plaint cannot be allowed under Order 6 Rule 17 of the Code of Civil Procedure. On the other hand, it is submitted on behalf of the opposite party that for the purpose of Order 6 Rule 17 of the Code of Civil Procedure, the commencement of trial means the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. According to the learned Advocate, appearing for the opposite party, the trial had not been advanced at the time of allowing the application under reference by the learned Court below. He relied upon the decision of Baldev Singh and Ors. v. Manohar Singh and Another reported in (2006)6 SCC 498: (2006)2 WBLR (SC) 904 in support of his above submissions.
(3.) I have heard the learned Advocate, appearing for the respective parties, at length and I have considered the facts and circumstances of this case. it is not in dispute that the learned Court below took into consideration the statements made in paragraph 6 of the plaint with regard to payment of money to various persons by the opposite party for the purpose of obtaining possession of the suit property. It is also not in dispute that due to objection raised by the petitioners, the opposite party did not file the documents showing payment to different persons at the time of examination in chief under Order 18 Rule 4 of the Code of Civil Procedure. It is true that in accordance with the provisions of Order 7 Rule 14 of the Code of Civil Procedure, a plaintiff is under obligation to produce and deliver the documents and a copy thereof at the time of filing the plaint. But in accordance with the provisions of Order 6 Rule 17 of the Code of Civil Procedure, a plaintiff is also entitled to amend his pleading in such manner and on such terms as may be just and all such amendments should be made as may be necessary for the purpose of determining the question in controversy between the parties. The proviso to Order 6 Rule 7 is applicable in a case where the trial has commenced. Commencement of trial as used in proviso to Order 6 Rule 17 of the Code of Civil Procedure must be understood in the limited sense meaning thereby the final hearing of suit, examination of witnesses, filing of document in absence of arguments. Reference may be made to Baldev Singh (supra) and the relevant portion of the above decisions is quoted below : 17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 of the Code of Civil Procedure must be understood is in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings". ;