Introduction
|
Maintenance
of Parents and Senior citizen is the responsibility of very person. In
India the uncared senior citizens including parents who are unable to
maintain themselves from their own resources or are abandoned by their
children, can get the relief under an Act known as The Maintenance and
Welfare of Parents and Senior Citizens Act. Under this Act, children and
property heirs must take care of the maintenance of their
parents/senior citizens. The purpose of enacting this Act was to fulfill
the gaps in Section 125 of the Code of Criminal Procedure, 1973.
The Code of Criminal Procedure, 1973 has limited provision for maintenance of parents only and is silent on welfare measures. Whereas the Maintenance and Welfare of Parents and Senior citizen Act 2007, has provisions for maintenance and also look after the welfare of parents and senior citizens. It is a comprehensive Act. It has a broader scope and is not limited to the sphere of parent-child relationship only. The Act holds the State responsible for the implementation of welfare measures for senior citizen. By bringing out the Maintenance and Welfare of parents and citizens Act, the Government has taken a small step towards bringing a smile to the faces of the elders of our society. As a nation, it is every citizens duty to ensure that Senior Citizens live a happy, healthy and secure life. We should always keep in mind that who took care of us in their youth and helped us to grow, we owe them a better tomorrow. The act extends to the whole of India except the Sate of Jammu and Kashmir and it applies also to citizens of India outside India. |
PROVISIONS OF THE ACT:
|
Ø A
senior citizen includes parents who are unable to maintain themselves
through their own earnings or out of their own property, may apply for
maintenance from their adult children or any legal heir (who is in
possession of or is likely to inherit their property) of the childless
senior citizen. This maintenance includes the provision of proper food,
shelter, clothing and medical treatment.
Ø Parents include biological, adoptive and step mothers and fathers, whether senior citizens or not. JURISDICTION FOR FILING APPLICATION FOR MAINTENANCE The proceedings under the provision of the Act may be taken against any children or relative in any district:- a. where the senior citizen or parent resides or last resided; b. where children or relative resides. |
DEPOSIT OF THE MAINTENANCE AMOUNT
|
o
When a maintenance order is made under this Act, the children or
relative who is required to pay must deposit the entire amount in such
manner as the Tribunal, within thirty days of the date of announcing the
order by the Tribunal.
o Where any Tribunal makes an order for maintenance under this Act, such Tribunal may also direct that in addition to the amount of maintenance, simple interest to be paid at such rate and from such date not earlier than the date of making the application, which can not be less than five per cent, and not more than eighteen per cent. APPEALS Ø Any senior citizen or a parent, who gets aggrieved by the order of the Tribunal can prefer an appeal at the Appellate Tribunal within sixty days from the date of the order. Ø The Appellate Tribunal after examining the appeal and the records called for may either allow or reject the appeal. Ø The Appellate Tribunal adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal is the final. No appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative. |
REVOCATION OF WILL
|
As
per the provision of the Act, a senior citizen can seek to revoke any
property, which has been transferred in favour of children/relative on
the condition that such children/relative would provide maintenance to
him but are not providing the same. The tribunals are empowered to
declare such transfers as void on the applications of such parent.
OFFENCES AND PROCEDURE FOR TRIAL Ø Exposure and abandonment of senior citizen : Erring persons are punishable with imprisonment up to three months or a fine of up to rupees five thousand or with both. Ø Cognizance of offences : (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) every offence under this Act shall be cognizable and bailable. (2) An offence under this Act shall be tried summarily by a Magistrate. PROVISIONS FOR MEDICAL CARE OF SENIOR CITIZEN The Act provides that the State Government shall ensure : - · the Government hospitals or hospitals funded fully or partially by the Government shall provide beds for all senior citizens as far as possible; · separate queues be arranged for senior citizens; · facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens; · research activities for chronic elderly diseases and ageing is expanded; · there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care. Ongoing transition in the families today as a result of changes in the cultural contours in the society has posed several challenges to the elderly care in the society. There is crisis in the institution of family, which carries special significance to the care of elderly people. The State Government is required to set up one or more tribunals in every sub-division. It sholud also set up Appellate Tribunals in every district to hear the appeals of Senior Citizens against the decision of the Tribunals. State Governments should set up at least one Old Age Home for every 150 beneficiaries in a district. These homes are to provide Senior Citizens with minimum facilities such as food, clothing and recreational activities. All Government hospitals or those funded by the Government must provide beds for Senior Citizens as far as possible. Also, special queues to access medical facilities should be arranged for them. source:helplinelaw.com |
Showing posts with label Civil Procedure Code. Show all posts
Showing posts with label Civil Procedure Code. Show all posts
The Maintenance And Welfare Of Parents And Senior Citizens
Dishonor of Cheque
Dishonor of Cheque
Liability under the negotiable instruments act
- Where
any cheque drawn by a person for the discharge of a liability is
returned by the bank unpaid, either because of the amount of money
standing to the credit of that account is insufficient
to honor the cheque or;
- That
it exceeds the amount arranged to be paid from that account by an
agreement made with that bank
Such person cheque shall be
deemed to have committed an offence and shall be punishable with imprisonment
for a term, which may extend to two year, or with fine, which may extend to
twice the amount of the cheque or with both.
What constitutes an offence
Such
cheque should have been presented to the bank within a period of six months of
the date of on which it is drawn or within the period of its validity, which
ever is earlier; and
The
payee or holder in due course of such cheque should have made a demand for the
payment of the said amount of money by giving a notice, in writing, to the
drawer of the cheque within thirty days of the receipt of the information by
him from the bank regarding the return of the cheque unpaid; and
The
drawer of such cheque should have failed to make the payment of the said amount
of money to the payee or the holder in due course of the cheque within fifteen
days of receipt of the said notice.
The cheque in question should have been
issued in discharge of whole or part of a debt or liability otherwise the maker
of the cheque is not liable for prosecution. For example if the cheque is given as a gift or present and if the
bank dishonors it the maker of the cheque is not liable for prosecution.
Offences by Companies
If
the person committing the offence is a company, every person who, at the time
offence was committed, was in charge of, and responsible to the company for the
conduct of the business of the company shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished.
If
a person proves that the offence was committed without his knowledge, or that
he had exercised due diligence to prevent the commission of such offence, he
shall not be punishable.
Where
a person is nominated as a Director of a company by virtue of his holding any
office or employment in the Central Government or State Government or a
financial Corporation owned or controlled by the Central Government or State
Government, he shall not be liable for prosecution.
Where any offence has been committed by
a Company and f it is proved that the offence has been committed with the
consent or connivance of, or is attributable to, any neglect on the part of any
director, manager, secretary, or other officer of the Company, such person
shall also be deemed to be guilty of that offence and shall be liable to be
proceeded against and punished accordingly.
Presentation of cheque any number of times
There
is no embargo upon the payee to successively present a dishonored cheque during
the period of its validity.
There
is no restriction regarding the no of times a cheque can be presented and that
every subsequent representation and dishonor gives rise to fresh cause of
action for filing complaint.
In
the course of business transactions it is not uncommon for a cheque being
returned due to insufficient funds or similar such reason and being presented
again by the payee after sometime, on his own volition or at the request of the
drawer, in expectation that it would be encashed.
For
dishonor of one cheque there can be only one offence and such offence is
committed by the drawer immediately on his failure to make the payment within
15 days of the receipt of the notice served.
On
each presentation of the cheque and its dishonor, a fresh right and not cause
of action accrues. Therefore the payee without taking pre-emptory action in
exercise of his right may, go on presenting the cheque so as to enable him to
exercise such right at any point of time during the validity of the cheque.
Cause
of action would arise only on failure to pay after notice.
Once a notice for payment is given a
fresh cause of action will not arise if the cheque is presented again and it is
dishonored.
Effect of stop payment
Stop
payment instructions cannot obviate the offence.
Even
if stop payment instructions are given and notice of the same is given to the
payee or holder in due course liability cannot be avoided.
The
position will not be different even if the drawer had instructed the bank to
stop payment prior to the presentation of the cheque for encashment.
Once the cheque is issued there is a
presumption, that the holder received the cheque for the discharge, of any debt
or liability and merely because the drawer issues a notice to the drawee or to
the bank for stoppage of the payment it will not preclude an action under the
Act.
Notice in case of dishonor
The
requirement of giving of notice is mandatory. If no notice making a demand for
payment is served upon the drawer within 30 days from the date of dishonor of
cheque, a complaint is not maintainable unless the complainant satisfies the
Court that he had sufficient cause for not making a complaint within such
period.
Notice
means a notice in writing.
A
postal acknowledgement due containing the signature of the accused is proper
proof of service of the notice on the addressee shown in the postal
acknowledgement.
When
a notice is returned by the sender as unclaimed such date would be the
commencing date in reckoning the period of 15 days. Such reckoning would be without
prejudice to the right of the drawer of the cheque to show that he had no
knowledge that the notice was brought to his address.
The
notice need not necessarily be by registered post only. It can be sent by a
telegram, fax or by a letter as well.
However it is preferable to send the
notice by registered post, as that is clear evidence of service.
Period for payment
If
payment is not made within 15 days of the receipt of the notice then the
offence shall be deemed to have been committed.
The
cause of action for filing complaint would arise after the completion of 15
days from the date the drawer receives the notice and fails to pay the amount
within that period.
The
court cannot take cognizance prior to the lapse of the period of 15 days even
if there was a denial of the liability earlier, even after denial liability to
pay the amount, the accused can at any time change his mind within 15 days of
receipt of notice, make payment and avoid prosecution.
The
offence shall be deemed to be committed only from the date when notice period
expired.
The
drawer cannot take the excuse that he had no reason to believe when he issued
the cheque that the cheque may be dishonored on presentation for the reasons
stated above.
Remedies
1.
To file a civil suit
2.
To file a complaint under section 138
of the Negotiable Instruments Act, 1881
3.
To file complaint under section 420 for
cheating under the Indian Penal Code
In
case a person has filed suits for recovery, he is not precluded from filing a
complaint under section 138 of the Negotiable Instruments Act and section 420
of the Indian Penal Code. Both remedies may be simultaneously possible. A civil
suit cannot debars the criminal prosecution.
AMENDMENT OF PLEADINGS - AFTER COMMENCEMENT OF TRIAL
AMENDMENT OF PLEADINGS – BAR AFTER COMMENCEMENT OF TRIAL
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7251 OF 2008
[Arising out of SLP (Civil) No. 4740 of 2008]
Vidyabai & Ors. ...Appellants
Versus
Padmalatha & Anr. . ...Respondents
( Also reported in AIR 2009 SC 1433 )
JUDGMENT
S.B. SINHA, J :
1. Leave granted.
2. Whether pleadings can be directed to be amended after the hearing of a case begins is the question involved in this appeal which arises out of a judgment and order dated 24.10.2007 passed by the High Court of Karnataka at Bangalore in Writ Petition No. 14013 of 2007.
3. On or about 16.12.2003, the plaintiffs - appellants filed a suit for specific performance of an agreement of sale. According to the plaintiffs, one Prashant Sooji (since deceased) executed an agreement of sale on 15.01.2001 in respect of the suit property for a sum of Rs. 21 lakhs. Defendants - Respondents are the predecessors in interest of the said Prashant Sooji.
A written statement was filed on 17.04.2004. An application for amendment of the written statement was filed on 8.11.2006. In between the period 17.04.2004 and 8.11.2006, however, indisputably issues were framed and parties filed their respective affidavits by way of evidence. Dates had been fixed for cross-examination of the said witnesses.
On or about 8.11.2006, an application had been filed under Order VI Rule 17 of the Code of Civil Procedure (for short "the Code"), which was marked as IA 9 of 2006, seeking amendment to the written statement. On the same day, another application, which was marked as IA 10 of 2006, had also been filed purported to be under Order VIII Rule 1A of the Code for production of additional documents.
By reason of an order dated 18.07.2007, the learned Principal Civil
Judge (Sr. Dn.) Hubli dismissed the said applications holding that an entirely new case is sought to be made out. The contention that they had no knowledge of the facts stated therein and the respondents could not gather the materials and information necessary for drafting proper written statement earlier was rejected, stating:
"...However, this contention cannot be accepted. Because according to proposed amendment sought by defendants at para 3(a) will is dated 18.3.94. Therefore, naturally same would have been in the knowledge of defendants right from the date and moreover when they say that mother-in-law of defendant No. 1 is also necessary party and she is also got right and interest in the suit property and that she is alive, then through her defendants would have known about will right from beginning and hence it cannot be said that defendant No. 1 required time to gather information regarding will and further as details of will would have been within the knowledge of defendants and/ or could have been given by mother-in-law of defendant No. 1 i.e. Subhadrabai, then it was not necessary for defendant No. 1 to have any social activities or have knowledge of business to know about the will and hence proposed amendment regarding will cannot said to be not within the knowledge of defendants at the time of filing of written statement. Further regarding husband of defendant No. 1 being addicted to bad vices like womanizing, drinking etc again this would have been within the personal knowledge of defendant No. 1 as she is wife of deceased Prashant against whom whose allegations are made and this would have been in where knowledge right from the beginning and to have said knowledge again she need not have any knowledge of business or social activities and thus she also did not require any time to gather that the information which are well within her own knowledge..."
4. A writ petition was filed thereagainst. By reason of the impugned judgment, the High Court noticed the defence of the appellants in the following terms:
"There is no retracting of statement made in written statement already filed by the defendants".
It, however, took into consideration the fact that the said IAs were filed after the affidavit of evidence had been filed by the plaintiffs -appellants. Despite noticing the proviso appended to Order VI, Rule 17 of the Code, it was held;
"...According to Order 6 Rule 17, an amendment application can be filed at any stage of the proceeding. Filing of affidavit by way of evidence itself is not a good ground to reject the application filed seeking amendment of written statement. It is not out of place to mention that the parties must be allowed to plea. Such a valuable right cannot be curtailed in the absence of good ground."
I.A. 10 was also directed to be allowed.
5. Mr. S.K. Kulkarni, learned counsel appearing on behalf of the appellants, would submit that in view of the proviso appended to Order VI Rule 17 of the Code, the High Court committed a serious illegality in passing the impugned judgment.
6. Ms. Kiran Suri, learned counsel appearing on behalf of the respondents, on the other hand, would contend that the proviso appended to Order VI Rule 17 of the Code is not attracted in the instant case as by reason of the amendment to the written statement, no new case has been made out. It was submitted that `leave' to amend the written statement was filed for the purpose of elaborating the defence which had already been taken by the defendants and in that view of the matter, this Court should not exercise its
jurisdiction under Article 136 of the Constitution of India particularly when it is well-known that an application for amendment of written statement should be dealt with liberally.
7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:
"Provided 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 trial."
It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition.
The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to `commencement of
proceeding'.
9. Although in a different context, a Three-Judge Bench of this Court in Union of India and Others v. Major General Madan Lal Yadav (Retd.) [(1996) 4 SCC 127] took note of the dictionary meaning of the terms "trial" and "commence" to opine:
19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.
The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.
10. Order XVIII, Rule 4(1) of the Code reads as under:
"4. Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the
parties rely upon the documents, the proof and
admissibility of such documents which are filed
along with affidavit shall be subject to the orders
of the Court."
This aspect of the matter has been considered by this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702] in the following terms:
"15. The examination of a witness would include
evidence-in-chief, cross-examination or re-
examination. Rule 4 of Order 18 speaks of
examination-in-chief. The unamended rule
provided for the manner in which "evidence" is to
be taken. Such examination-in-chief of a witness
in every case shall be on affidavit.
16. The aforementioned provision has been made
to curtail the time taken by the court in examining
a witness-in-chief. Sub-rule (2) of Rule 4 of Order
18 of the Code of Civil Procedure provides for
cross-examination and re-examination of a witness
which shall be taken by the court or the
Commissioner appointed by it."
In Kailash v. Nanhku [(2005) 4 SCC 480], this Court held:
"13. At this point the question arises: when does
the trial of an election petition commence or what
is the meaning to be assigned to the word "trial" in
the context of an election petition? In a civil suit,
the trial begins when issues are framed and the
case is set down for recording of evidence. All the
proceedings before that stage are treated as
proceedings preliminary to trial or for making the
case ready for trial. As held by this Court in
several decided cases, this general rule is not
applicable to the trial of election petitions as in the
case of election petitions, all the proceedings
commencing with the presentation of the election
petition and up to the date of decision therein are
included within the meaning of the word "trial"."
We may notice that in Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. and Others [(2006) 12 SCC 1], this Court noticed the decision of this Court in Kailash (supra) to hold:
"35. By Act 46 of 1999, there was a sweeping
amendment by which Rules 17 and 18 were
wholly omitted so that an amendment itself was
not permissible, although sometimes effort was
made to rely on Section 148 for extension of time
for any purpose.
36. Ultimately, to strike a balance the legislature
applied its mind and reintroduced Rule 17 by Act
22 of 2002 w.e.f. 1-7-2002. It had a provision
permitting amendment in the first part which said
that the court may at any stage permit amendment
as described therein. But it also had a total bar
introduced by a proviso which prevented any
application for amendment to be allowed after the
trial had commenced unless the court came to the
conclusion that in spite of due diligence the party
could not have raised the matter before the
commencement of the trial. It is this proviso which
falls for consideration."
This Court also noticed Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] to hold:
"41. We have carefully considered the submissions
made by the respective Senior Counsel appearing
for the respective parties. We have also carefully
perused the pleadings, annexures, various orders
passed by the courts below, the High Court and of
this Court. In the counter-affidavit filed by
Respondent 1, various dates of hearing with
reference to the proceedings taken before the
Court has been elaborately spelt out which in our
opinion, would show that the appellant is
precluded by the proviso to rule in question from
seeking relief by asking for amendment of his
pleadings.
42. It is to be noted that the provisions of Order 6
Rule 17 CPC have been substantially amended by
the CPC (Amendment) Act, 2002.
43. Under the proviso no application for
amendment shall be allowed after the trial has
commenced, unless in spite of due diligence, the
matter could not be raised before the
commencement of trial. It is submitted, that after
the trial of the case has commenced, no
application of pleading shall be allowed unless the
above requirement is satisfied. The amended Order
6 Rule 17 was due to the recommendation of the
Law Commission since Order (sic Rule) 17, as it
existed prior to the amendment, was invoked by
parties interested in delaying the trial. That to
shorten the litigation and speed up disposal of
suits, amendment was made by the amending Act,
1999, deleting Rule 17 from the Code. This
evoked much controversy/hesitation all over the
country and also leading to boycott of courts and,
therefore, by the Civil Procedure Code
(Amendment) Act, 2002, provision has been
restored by recognising the power of the court to
grant amendment, however, with certain limitation
which is contained in the new proviso added to the
rule. The details furnished below will go to show
as to how the facts of the present case show that
the matters which are sought to be raised by way
of amendment by the appellants were well within
their knowledge on their court case, and manifests
the absence of due diligence on the part of the
appellants disentitling them to relief."
The ratio in Kailash (supra) was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and Others v. Manohar Singh and Another [(2006) 6 SCC 498], wherein it was opined:
"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 in the Code of
Civil Procedure must be understood 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 CPC which confers
wide power and unfettered discretion to the court
to allow an amendment of the written statement at
any stage of the proceedings.
It is not an authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence.
13. Reliance has also been placed by Ms. Suri on Pradeep Singhvi and Another v. Heero Dhankani and Others [(2004) 13 SCC 432]. Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure had no application.
Reliance has also been placed by Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others [(2006) 4 SCC 385]. No doubt, as has been held by this Court therein that the court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side.
14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of
the plaint.
15. In Salem Advocate Bar Assn (supra), this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question.
16. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned Trial Judge exceeded its jurisdiction in passing the order impugned before it. It has also not been found that any error of law has been committed by it.
The High Court did not deal with the contentions raised before it. It has not applied its mind on the jurisdictional issue. The impugned judgment, therefore, cannot be sustained, which is set aside accordingly.
17. However, we may observe that the question as to whether the documents should have been called for or not by the court without there being the amended written statement before it may be considered afresh.
18. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
...............................J.
[S.B. Sinha]
................................J.
[Cyriac Joseph]
New Delhi;
December 12, 2008
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7251 OF 2008
[Arising out of SLP (Civil) No. 4740 of 2008]
Vidyabai & Ors. ...Appellants
Versus
Padmalatha & Anr. . ...Respondents
( Also reported in AIR 2009 SC 1433 )
JUDGMENT
S.B. SINHA, J :
1. Leave granted.
2. Whether pleadings can be directed to be amended after the hearing of a case begins is the question involved in this appeal which arises out of a judgment and order dated 24.10.2007 passed by the High Court of Karnataka at Bangalore in Writ Petition No. 14013 of 2007.
3. On or about 16.12.2003, the plaintiffs - appellants filed a suit for specific performance of an agreement of sale. According to the plaintiffs, one Prashant Sooji (since deceased) executed an agreement of sale on 15.01.2001 in respect of the suit property for a sum of Rs. 21 lakhs. Defendants - Respondents are the predecessors in interest of the said Prashant Sooji.
A written statement was filed on 17.04.2004. An application for amendment of the written statement was filed on 8.11.2006. In between the period 17.04.2004 and 8.11.2006, however, indisputably issues were framed and parties filed their respective affidavits by way of evidence. Dates had been fixed for cross-examination of the said witnesses.
On or about 8.11.2006, an application had been filed under Order VI Rule 17 of the Code of Civil Procedure (for short "the Code"), which was marked as IA 9 of 2006, seeking amendment to the written statement. On the same day, another application, which was marked as IA 10 of 2006, had also been filed purported to be under Order VIII Rule 1A of the Code for production of additional documents.
By reason of an order dated 18.07.2007, the learned Principal Civil
Judge (Sr. Dn.) Hubli dismissed the said applications holding that an entirely new case is sought to be made out. The contention that they had no knowledge of the facts stated therein and the respondents could not gather the materials and information necessary for drafting proper written statement earlier was rejected, stating:
"...However, this contention cannot be accepted. Because according to proposed amendment sought by defendants at para 3(a) will is dated 18.3.94. Therefore, naturally same would have been in the knowledge of defendants right from the date and moreover when they say that mother-in-law of defendant No. 1 is also necessary party and she is also got right and interest in the suit property and that she is alive, then through her defendants would have known about will right from beginning and hence it cannot be said that defendant No. 1 required time to gather information regarding will and further as details of will would have been within the knowledge of defendants and/ or could have been given by mother-in-law of defendant No. 1 i.e. Subhadrabai, then it was not necessary for defendant No. 1 to have any social activities or have knowledge of business to know about the will and hence proposed amendment regarding will cannot said to be not within the knowledge of defendants at the time of filing of written statement. Further regarding husband of defendant No. 1 being addicted to bad vices like womanizing, drinking etc again this would have been within the personal knowledge of defendant No. 1 as she is wife of deceased Prashant against whom whose allegations are made and this would have been in where knowledge right from the beginning and to have said knowledge again she need not have any knowledge of business or social activities and thus she also did not require any time to gather that the information which are well within her own knowledge..."
4. A writ petition was filed thereagainst. By reason of the impugned judgment, the High Court noticed the defence of the appellants in the following terms:
"There is no retracting of statement made in written statement already filed by the defendants".
It, however, took into consideration the fact that the said IAs were filed after the affidavit of evidence had been filed by the plaintiffs -appellants. Despite noticing the proviso appended to Order VI, Rule 17 of the Code, it was held;
"...According to Order 6 Rule 17, an amendment application can be filed at any stage of the proceeding. Filing of affidavit by way of evidence itself is not a good ground to reject the application filed seeking amendment of written statement. It is not out of place to mention that the parties must be allowed to plea. Such a valuable right cannot be curtailed in the absence of good ground."
I.A. 10 was also directed to be allowed.
5. Mr. S.K. Kulkarni, learned counsel appearing on behalf of the appellants, would submit that in view of the proviso appended to Order VI Rule 17 of the Code, the High Court committed a serious illegality in passing the impugned judgment.
6. Ms. Kiran Suri, learned counsel appearing on behalf of the respondents, on the other hand, would contend that the proviso appended to Order VI Rule 17 of the Code is not attracted in the instant case as by reason of the amendment to the written statement, no new case has been made out. It was submitted that `leave' to amend the written statement was filed for the purpose of elaborating the defence which had already been taken by the defendants and in that view of the matter, this Court should not exercise its
jurisdiction under Article 136 of the Constitution of India particularly when it is well-known that an application for amendment of written statement should be dealt with liberally.
7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:
"Provided 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 trial."
It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition.
The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to `commencement of
proceeding'.
9. Although in a different context, a Three-Judge Bench of this Court in Union of India and Others v. Major General Madan Lal Yadav (Retd.) [(1996) 4 SCC 127] took note of the dictionary meaning of the terms "trial" and "commence" to opine:
19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.
The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.
10. Order XVIII, Rule 4(1) of the Code reads as under:
"4. Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the
parties rely upon the documents, the proof and
admissibility of such documents which are filed
along with affidavit shall be subject to the orders
of the Court."
This aspect of the matter has been considered by this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702] in the following terms:
"15. The examination of a witness would include
evidence-in-chief, cross-examination or re-
examination. Rule 4 of Order 18 speaks of
examination-in-chief. The unamended rule
provided for the manner in which "evidence" is to
be taken. Such examination-in-chief of a witness
in every case shall be on affidavit.
16. The aforementioned provision has been made
to curtail the time taken by the court in examining
a witness-in-chief. Sub-rule (2) of Rule 4 of Order
18 of the Code of Civil Procedure provides for
cross-examination and re-examination of a witness
which shall be taken by the court or the
Commissioner appointed by it."
In Kailash v. Nanhku [(2005) 4 SCC 480], this Court held:
"13. At this point the question arises: when does
the trial of an election petition commence or what
is the meaning to be assigned to the word "trial" in
the context of an election petition? In a civil suit,
the trial begins when issues are framed and the
case is set down for recording of evidence. All the
proceedings before that stage are treated as
proceedings preliminary to trial or for making the
case ready for trial. As held by this Court in
several decided cases, this general rule is not
applicable to the trial of election petitions as in the
case of election petitions, all the proceedings
commencing with the presentation of the election
petition and up to the date of decision therein are
included within the meaning of the word "trial"."
We may notice that in Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. and Others [(2006) 12 SCC 1], this Court noticed the decision of this Court in Kailash (supra) to hold:
"35. By Act 46 of 1999, there was a sweeping
amendment by which Rules 17 and 18 were
wholly omitted so that an amendment itself was
not permissible, although sometimes effort was
made to rely on Section 148 for extension of time
for any purpose.
36. Ultimately, to strike a balance the legislature
applied its mind and reintroduced Rule 17 by Act
22 of 2002 w.e.f. 1-7-2002. It had a provision
permitting amendment in the first part which said
that the court may at any stage permit amendment
as described therein. But it also had a total bar
introduced by a proviso which prevented any
application for amendment to be allowed after the
trial had commenced unless the court came to the
conclusion that in spite of due diligence the party
could not have raised the matter before the
commencement of the trial. It is this proviso which
falls for consideration."
This Court also noticed Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] to hold:
"41. We have carefully considered the submissions
made by the respective Senior Counsel appearing
for the respective parties. We have also carefully
perused the pleadings, annexures, various orders
passed by the courts below, the High Court and of
this Court. In the counter-affidavit filed by
Respondent 1, various dates of hearing with
reference to the proceedings taken before the
Court has been elaborately spelt out which in our
opinion, would show that the appellant is
precluded by the proviso to rule in question from
seeking relief by asking for amendment of his
pleadings.
42. It is to be noted that the provisions of Order 6
Rule 17 CPC have been substantially amended by
the CPC (Amendment) Act, 2002.
43. Under the proviso no application for
amendment shall be allowed after the trial has
commenced, unless in spite of due diligence, the
matter could not be raised before the
commencement of trial. It is submitted, that after
the trial of the case has commenced, no
application of pleading shall be allowed unless the
above requirement is satisfied. The amended Order
6 Rule 17 was due to the recommendation of the
Law Commission since Order (sic Rule) 17, as it
existed prior to the amendment, was invoked by
parties interested in delaying the trial. That to
shorten the litigation and speed up disposal of
suits, amendment was made by the amending Act,
1999, deleting Rule 17 from the Code. This
evoked much controversy/hesitation all over the
country and also leading to boycott of courts and,
therefore, by the Civil Procedure Code
(Amendment) Act, 2002, provision has been
restored by recognising the power of the court to
grant amendment, however, with certain limitation
which is contained in the new proviso added to the
rule. The details furnished below will go to show
as to how the facts of the present case show that
the matters which are sought to be raised by way
of amendment by the appellants were well within
their knowledge on their court case, and manifests
the absence of due diligence on the part of the
appellants disentitling them to relief."
The ratio in Kailash (supra) was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and Others v. Manohar Singh and Another [(2006) 6 SCC 498], wherein it was opined:
"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 in the Code of
Civil Procedure must be understood 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 CPC which confers
wide power and unfettered discretion to the court
to allow an amendment of the written statement at
any stage of the proceedings.
It is not an authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence.
13. Reliance has also been placed by Ms. Suri on Pradeep Singhvi and Another v. Heero Dhankani and Others [(2004) 13 SCC 432]. Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure had no application.
Reliance has also been placed by Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others [(2006) 4 SCC 385]. No doubt, as has been held by this Court therein that the court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side.
14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of
the plaint.
15. In Salem Advocate Bar Assn (supra), this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question.
16. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned Trial Judge exceeded its jurisdiction in passing the order impugned before it. It has also not been found that any error of law has been committed by it.
The High Court did not deal with the contentions raised before it. It has not applied its mind on the jurisdictional issue. The impugned judgment, therefore, cannot be sustained, which is set aside accordingly.
17. However, we may observe that the question as to whether the documents should have been called for or not by the court without there being the amended written statement before it may be considered afresh.
18. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
...............................J.
[S.B. Sinha]
................................J.
[Cyriac Joseph]
New Delhi;
December 12, 2008
