2008 (12) TMI 723 - SC - Indian Laws

Whether pleadings can be directed to be amended after the hearing of a case begins? Whether the trial had commenced or not? Whether the documents should have been called for or not by the court without there being the amended written statement before it?

Summary

Issues Involved:
1. Amendment of pleadings after the commencement of trial.
2. Applicability of Order VI Rule 17 of the Code of Civil Procedure.
3. Determination of the commencement of trial.

Detailed Analysis:

1. Amendment of Pleadings After the Commencement of Trial:
The primary issue in this case was whether pleadings can be directed to be amended after the hearing of a case begins. The plaintiffs filed a suit for specific performance of an agreement of sale, and the defendants sought to amend their written statement after the trial had commenced. The trial court dismissed the application for amendment, stating that the proposed amendment would introduce an entirely new case. The High Court, however, allowed the amendment, emphasizing that an amendment application can be filed at any stage of the proceeding and that the parties must be allowed to plead.

2. Applicability of Order VI Rule 17 of the Code of Civil Procedure:
Order VI Rule 17 of the Code of Civil Procedure, as amended by the Civil Procedure Code (Amendment) Act, 2002, includes a proviso that no application for amendment shall be allowed after the trial has commenced unless the court concludes that, despite due diligence, the party could not have raised the matter before the commencement of the trial. The Supreme Court highlighted that this proviso is mandatory and restricts the court's jurisdiction to allow amendments unless the conditions precedent are satisfied. The Court noted that the respondents did not fulfill the pre-condition of due diligence as required by the proviso.

3. Determination of the Commencement of Trial:
The Supreme Court examined whether the trial had commenced in this case. It concluded that the trial had indeed commenced when the issues were framed and the parties filed their affidavits by way of evidence. The Court referred to the definition of "trial" and "commence" and previous judgments to establish that the trial begins with the performance of the first act or step necessary to proceed with the trial. The Court also referred to Order XVIII Rule 4(1) of the Code, which states that the examination-in-chief of a witness shall be on affidavit, indicating that the filing of an affidavit amounts to the commencement of the trial.

Conclusion:
The Supreme Court held that the High Court committed a serious illegality by allowing the amendment of the written statement after the trial had commenced without satisfying the due diligence condition. The Court emphasized that the proviso to Order VI Rule 17 restricts the court's power to allow amendments after the commencement of the trial. The judgment of the High Court was set aside, and the appeal was allowed. The Court also observed that the question of whether the documents should have been called for by the court without the amended written statement may be considered afresh. No order as to costs was made.