Anil Kumar, J.@mdashHeard Sri Anurag Shukla, learned Counsel for the revisionist and perused the record. By means of present revision, revisionist has challenged the order dated 7.1.2014 passed by Motor Accident Claims Tribunal/Special Jude, (S.C./S.T.) Act, Hardoi by means of which application moved by the revisionist for recalling the order by which the opportunity to lead evidence by the applicant has been closed as well as application under Chapter 6 Rule 17 for amendment in written statement has been rejected.
2. Facts, in brief, of the present case are that on 28.3.2010 an accident took place due to which Manoj Kumar @ Kallu died. In view of the said fact a Motor Accident Claim Petition u/s 166 of the Motor Vehicle Act has been filed by his legal representatives registered as Claim Petition No. 156 of 2010 before the Motor Accident Claims Tribunal/Special Judge, (S.C./S.T.) Act, Hardoi impleading the revisionist/Vijai Kant Pandey (owner of the vehicle) and Vijay Kant Pandey (driver of the vehicle) as respondent Nos. 1 and 2 as well as National Insurance Company as respondent No. 3 on 9.8.2010. By order dated 7.11.2013 an opportunity to lead evidence of the revisionist has been closed. On 7.1.2014 an application has been moved on behalf of the revisionist for recalling the order dated 7.11.2013 registered as paper No. 53-GA. In additional to above said fact, revisionist also moved an application for amendment in written statement under Order VI, Rule 17 read with section 151 C.P.C. (54-Kha); both the application-rejected by order dated 7.1.2014.
3. Sri Anurag Shukla, learned Counsel for the revisionist submits that neither any objection has been filed on the application for recalling the order by which evidence has been closed, registered as paper No. 53-Ga nor any objection has been made by the plaintiff/claimant on the application for amendment in written statement moved on behalf of the respondents and pray for cost has been made so the action on the part of Court below/Tribunal thereby rejecting the said applications, is illegal, arbitrary in nature contrary to law liable to be set aside. In support of his arguments he placed reliance in the case of
On critically analysing both the English and Indian cases, some basic principles emerge which out to be taken into consideration while allowing or rejecting the application for amendment:
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI, Rule 17. These are only illustrative and not exhaustive.
4. I have heard learned Counsel for the revisionist and gone through the record.
5. So far as the first point which has been argued in the matter in question on behalf of the revisionist that by the impugned order dated 7.1.2014 application for recall of the order dated 7.11.2013 by which the opportunity to lead evidence of revisionist/defendant has been closed, is an action which arbitrary in nature and contrary to the facts on record as from the perusal of the record the position which emerge out is to the effect that in the present case the sole ground which has taken by the revisionist/defendants for recall of the order dated 7.11.2013 that his Counsel has not taken steps to file evidence so keeping in view the said facts as well as the law as laid down by Hon''ble the Apex Court in the case of
The advocate is the agent of the party. His act and statements, made within the limits of authority given to him, are the acts and statements of the principal, i.e., the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is not such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised.
6. I do not find any illegality or infirmity in the order dated 7.1.2014 passed by the Tribunal thereby rejecting the application (53-Ga) for recalling the order dated 7.11.2013.
7. The next point which has been argued in the matter in question by learned Counsel for the revisionist that the Court below has wrongly rejected the application for amendment moved on behalf of revisionist/defendant to amend in written statement. In order to decide the said controversy, it is necessary to state the following facts in brief.
Order VI, Rule 17, C.P.C. as exists before 1999 is quoted as under:
Order VI, Rule 17:
17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
The aforesaid provision was omitted by the CPC (Amendment) Act, 1999
Section 16 of the Amendment Act reads as follows:
16. Amendment of Order VI.--in the First Schedule, in Order VI --
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(iii) Rules 17 and 18 shall be omitted.
The provision as it exists now after the CPC (Amendment) Act, 2002
Order VI, Rule 17
17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
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 seen that before the amendment of Order VI, Rule 17 by Act 46 of 1999, the Court has taken a very wide view of the power to amend the pleadings including even the plaint as could be seen from
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.
Ultimately, to strike a balance the Legislature applied its mind and reintroduced Rule 14 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 the proviso which falls for consideration.
8. It is to be noted that the provisions of Order VI, Rule 17, C.P.C. have been substantially amended by the C.P.C. (Amendment) Act, 2002.
9. 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 amendment of Order VI, 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 CPC (Amendment) Act, 2002, provision has been restored by recognizing 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 dis-entitling them to relief.
10. In the case of
By reason of the CPC (Amendment) Act, 2002 (Act 22 of 2002) 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 condition precedent, therefore, 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.
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 plain.
11. Further in the case of North Eastern Railway Administration, Gorakhpur v. North Eastern Railway Administration, Gorakhpur Bhawan Das (D) By L.Rs. 2009 (74) ALR 370 (SC) wherein Hon''ble Supreme Court has held as under:
In so far as the principles which govern the question of granting or disallowing amendments under Order VI, Rule 17, C.P.C., (as it stood at the relevant time) are concerned, these are also well-settled. Order VI, Rule 17, C.P.C. Postulates amendment of pleadings at any stage of the proceedings. In
12. Thus in nutshell, the provisions of amendment of pleading provided under Order VI, Rule 17, C.P.C. as exits today can be summarized and crystallized as under:-
Order VI, Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has against been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment to any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of the due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous application which are filed to delay the trial. There is no illegality in the provision.
13. In the present case Sri Anurag Shukla, learned Counsel for the revisionist has very fairly admitted that the facts which sought to be brought by way of amendment in written statement are not subsequent event and they are available with the revisionist/defendant when the written statement has been filed, so keeping in view the said facts and that the claim petition is fixed for hearing before Tribunal as such as per the law as laid down by Hon''ble the Apex Court in the case of
In the result, the revision lacks merit and is dismissed.
No order as to cost.
