It would also be useful to refer to Order VI Rule 17 of CPC. This, again refers to a “stage of the proceedings” and not the “hearing”, as in Order IX Rule 7 of CPC. Thus, an application for amendment may be filed by either party “at any stage of the proceedings”. Of course, if the trial has commenced, the court may not allow such amendments, unless there was due diligence. As noticed hereinbefore, the “stage” of the case can be at the time of pronouncement as well as beyond, in the form of an appeal. Thus, an application for amendment can be filed upto the pronouncement of judgment and even after filing the appeal.
{Para 22}
IN THE HIGH COURT OF DELHI AT NEW DELHI
CM (M) 412/2020,
M/S BDR DEVELOPERS PVT LTD. Vs NARSINGH SHAH alias NARSINGH SAH
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
Pronounced on: 3rd August, 2021
1. These five petitions have been filed by M/s. BDR Developers
Private Limited (“the petitioner”, for short) challenging the orders dated
4th August, 2020, passed in five suits that were filed by the
petitioner/plaintiff against various persons, named as defendants in the
said suits. Vide the said orders dated 4th August, 2020, separately passed
in each of the suits, the learned Trial Court had listed the cases for
arguments on the application under Order VI Rule 17 of the Code of Civil
Procedure, 1908 (“CPC”, for short). The petitioner/plaintiff seeks the
setting aside of the said orders primarily on the ground that the cases had
been fixed on 4th August, 2020 for passing orders on the applications that
the petitioner/plaintiff had filed under Order XII Rule 6 of CPC and under
Order XV-A of CPC, however, the learned Trial Court adjourned the
matter for arguments to be heard on the application filed by the
respondents under Order VI Rule 17 of CPC. Since the issues involved
are the same in all these petitions, they are being disposed of vide this
common order.
2. The petitioner/plaintiff claimed to be the landlord of premises No.
F-419 admeasuring 200 square yards, part of Khasra No. 814; No. F-15,
ad-measuring 244 Sq. yds. part of Khasra No.811, 813/2 and 814; No. P-
80B, ad-measuring 163 Sq. Yds. part of Khasra No.812/2; No. A-25, admeasuring
396 Sq. Yds., (92+304) and 342 Sq. Yds. (196+146); and,
No.464, ad-measuring 283 Sq. Yds. part of Khasra No.782, all situated at
Molarband, Post Office, Badarpur Road, New Delhi. By means of the
respective Registered Lease Deeds dated 13th June, 2018 and 11th June,
2018, the petitioner/plaintiff claimed that it had inducted the
respondents/defendants as tenants in the said properties at a monthly rent
of Rs.50,000/-. The civil suits were filed on 25th May, 2019 being CS
DJ/471/2019, CS DJ/467/2019, CS DJ/474/2019, CS DJ/469/2019 and
CS DJ/473/2019 respectively, for eviction, recovery of arrears of rent and
mesne profits against the respondents/defendants on the ground that they
had defaulted in paying the monthly rent for more than two months
consecutively. Written statements had been filed in all the suits by the
respondents/defendants and thereafter, the petitioner/plaintiff filed
applications under Order XII Rule 6 of CPC seeking judgment on
admissions, pointing out that the respondents/defendants had admitted the
execution of the respective Registered Lease Deeds dated 13th June, 2018
and 11th June, 2018.
3. Mr. Akhil Sachar, learned counsel for the petitioner/plaintiff has
submitted that extensive arguments were heard on this application under
Order XII Rule 6 of CPC and the learned Trial Court adjourned the
matter for orders, firstly to 1st August, 2020 and thereafter, to 4th August,
2020. The learned counsel further submitted that the
respondents/defendants took several adjournments on the plea of ill
health of their counsel and thereafter, changed the counsel twice. It was
on 28th July, 2020, that the new counsel for the respondents/defendants
filed written arguments and therefore, the learned Trial Court put the case
‘for orders’ on 1st August, 2020, on which date, due to a Court holiday,
the matter was then taken up on 4th August, 2020. On 1th August, 2020,
the new counsel engaged by the respondents/defendants sent an
application requesting the court to adjourn the passing of the orders under
Order XII Rule 6 of CPC, till the disposal of the application under Order
VI Rule 17 of CPC, which was also being filed along with certain
documents. The learned Trial Court mentioned this fact of the filing of
the application under Order VI Rule 17 of CPC and passed the impugned
order adjourning the matter for hearing on the application under Order VI
Rule 17 of CPC.
4. Learned counsel for the petitioner/plaintiff submitted that the
learned Trial Court, despite his objections, was unwilling to dispose of
the application under Order XII Rule 6 of CPC and directed the hearing
of both the applications together on the next date of hearing, which was
fixed for 14th August, 2020. As the present petitions were filed, this Court
directed the deferment of the hearing of the cases on 11th August, 2020.
Thereafter, vide orders dated 1st September, 2020, this Court directed the
respondents/defendants to make payment of the entire arrears @
Rs.50,000/- per month, whether it was to be described as “rent” or
“interest”, and without prejudice to the rights and contentions of the
parties. This order has been complied with.
5. Learned counsel for the petitioner/plaintiff has placed reliance on
the judgment of the Supreme Court in Arjun Singh v. Mohindra Kumar,
(1964) 5 SCR 946 to submit that the court when it reserves a judgment, it
does so under Order XX Rule 1 of CPC, after the hearing is completed. In
the present case, the record discloses that the arguments were heard and
the written submissions were filed in respect of the application under
Order XII Rule 6 of CPC, which sought a judgment on admission and
thus, there was no hearing left and, it was not permissible to move any
application during the interregnum, from the conclusion of the hearing till
the pronouncement of the orders. Therefore, the learned Trial Court had
erred in not first disposing of the application under Order XII Rule 6 of
CPC, and rather accepting the application under Order VI Rule 17 of
CPC, and further fixing the hearing on that application. Reliance has also
been placed on this Court’s judgment in Satya Bhushan Kaura v. Vijaya
Myne, 2006 SCC OnLine Del 1611.
6. Mr. Ashwin Vaish, learned counsel for the respondents/defendants
however, argued that in none of the judgments relied upon by the learned
counsel for the petitioner/plaintiff, has the inter-play between Order XII
Rule 6 of CPC and Order VI Rule 17 of CPC been decided. Learned
counsel submitted that Order VI Rule 17 of CPC is not akin to Order IX
Rule 7 of CPC inasmuch as Order IX Rule 7 refers to a “hearing”,
whereas Order VI Rule 17 refers to “any stage of the proceedings”.
Learned counsel submitted that any stage would mean just that, and so, an
application seeking amendment could be filed, even if the case has been
reserved for judgment. Reliance has also been placed on Panchdeo
Narain Srivastava v. Jyoti Sahay, 1984 Supp SCC 594 [partly overruled
in Ram Niranjan Kajaria v. Sheo Prakash Kajaria, (2015) 10 SCC 203],
Usha Balashaheb Swami v. Kiran Appaso Swami, (2007) 5 SCC 602
and S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287, to submit
that an application under Order VI Rule 17 of CPC for amendment could
be moved at any stage.
7. It was submitted by learned counsel for the respondents/defendants
that the mere reservation of the order on the application under Order XII
Rule 6 of CPC could not be taken to mean that the application was to be
allowed and the judgment was to follow. The learned Trial Court could
have used its discretion to decline the relief and therefore, the learned
Trial Court mentioned the words “orders” and not “judgment” in its order
dated 28th July, 2020. That would also indicate that the hearing had not
been concluded as required under Order XX Rule 1 of CPC, and this was
not a case where judgment had been reserved. According to the learned
counsel for the respondents/defendants, an application under Order XII
Rule 6 of CPC would not prohibit the court from considering an
application under Order VI Rule 17 of CPC. The petitioner/plaintiff
cannot presume that the application under Order XII Rule 6 of CPC
would have been decided and the suit decreed in its favour, to insist that
the reservation of the matters “for orders” on the application could only
mean “reservation for judgment”.
DISCUSSION
8. In order to determine whether the order dated 28th July, 2020 was a
“judgment” or not and was only an “interlocutory/intermediate” order, for
answering the question as to whether the application under Order VI Rule
17 of CPC could have been filed after the learned Trial Court had heard
arguments on the application under Order XII Rule 6 of CPC, it would be
useful to understand what is a “judgment” and what is an “order”.
9. That “judgment” and “order” do not mean the same thing is
obvious from the fact that the CPC itself defines them separately.
“Judgment” has been defined under Section 2(9) of CPC as below:
“ “judgment” means the statement given by the Judge
of the grounds of a decree or order.”
while an “Order” has been defined under Section 2(14) of CPC as
under: -
“ “order” means the formal expression of any
decision of a Civil Court which is not a decree.”
10. It is, therefore, clear that an “order” is something that does not
result in a decree or, therefore, a final conclusion of a matter, though a
“judgment” may include an “order”. The term “judgment” indicates a
judicial decision given on the merits of the disputes brought before the
Court. It determines the rights of the parties finally. In contrast, an
“order” may not be so but could be an interlocutory one, if it does not
determine or decide the rights of the parties once and for all. Thus, there
are, broadly speaking, two kinds of “orders”, one, that is in the nature of a
final order and the other not determining the main issue with any finality.
If such orders have been passed to help with the progress of the case, they
may dispose of a specific question finally, but without finally disposing
of the dispute. There is yet another category of “orders”, which, if
decided one way, would result in the determination of the rights of the
parties finally, but, if determined in any other way, would result in the
continuation of the proceedings. Such orders have been described as
“intermediate” or “quasi final orders”.
11. The Supreme Court in V.C. Shukla v. State through CBI, 1980
Supp SCC 92, looked into several English cases to consider the nature
and attributes of a “final order” and an “interlocutory order”. It was
observed that in general, a “judgment” or “order”, which determines the
principal matter in question, would be termed as final, and the others
would be “interlocutory”. The court summed it up in the following
words:-
“24. To sum up, the essential attribute of an
interlocutory order is that it merely decides some point or
matter essential to the progress of the suit or collateral to
the issues sought but not a final decision or judgment on
the matter in issue. An intermediate order is one which is
made between the commencement of an action and the
entry of the judgment…….. ”
12. The observations and the tests proposed in V.C. Shukla (supra) to
determine whether an “order” is a “final order” or an “interlocutory
order” or an “intermediate order”, were applied by the Supreme Court in
Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8. Though the
question before the court related to the maintainability of a Letters Patent
Appeal, the court once again considered the meaning of “judgment”,
“interlocutory orders that would amount to judgment” and “interlocutory
orders that would not amount to a judgment”. A “judgment” which
decided all the questions or issues in controversy and left nothing else to
be decided was a “final judgment”. There were two kinds of “preliminary
judgments”. One is where the trial judge dismisses the suit without going
into the merits of it and only on a preliminary objection raised by the
defendant. The second one is where these preliminary objections raised
by the defendant are decided against him, and the suit proceeds further.
These distinctions were no doubt, drawn in order to answer the question
whether a Letters Patent Appeal would lie. The Supreme Court also
discussed “intermediary” or “interlocutory” judgment and order, again in
order to answer whether a Letters Patent Appeal was maintainable.
Depending on the effect of the decision taken by the trial judge, the court
held that if such an order vitally affected a valuable right of the
defendant, “it would be treated as a judgment”, such as, where leave to
defend is declined. However, where the order, though affecting the
plaintiff adversely, does not cause him direct or immediate prejudice, but
only remote prejudice, or damage was of a minimal nature as his rights to
prove his case and show the defence to be false still remained, the order
would not partake of the characteristics of a “judgment”.
13. It was further observed that not every “interlocutory order” can be
regarded as a “judgment”, as there were many orders that were routine in
nature, such as, condonation of delay in filing the documents, orders
refusing adjournment, orders refusing to summon additional witness, etc.,
which may involve exercise of jurisdiction in respect of a procedural
matter against one party or the other.
14. On the other hand, “interlocutory orders” which would have the
effect of depriving a party of a valuable right, though purely
discretionary, may contain attributes and characteristics of finality and
could be treated as a “judgment”. The court referred to the exercise of
discretion of the courts in respect of an application for amendment under
Order VI Rule 17 of CPC to press home the point of what would
constitute a “judgment” or an “interlocutory order in the nature of a
judgment” or “an interlocutory order not in the nature of a judgment”.
15. In the light of all what has been said by the Supreme Court, it
would be useful to consider what is the nature of an application under
Order XII Rule 6 of CPC and the nature of the order thereupon. Order XII
relates to “admissions” and Rule 6 provides that the court may “at any
stage” of the suit, either on the application of any party or on its own
motion, without waiting for a determination of any other question
between the parties, make such order or give such judgment as it may
think fit. Where a judgment is pronounced, a decree is to be drawn up. In
other words, Order XII Rule 6 of CPC does not per se provide for a final
determination of the rights between the parties, though it may result in
such a final determination.
16. Unlike Order IX Rule 7 of CPC, which was being discussed by the
Supreme Court in Arjun Singh (supra), where the word used was
“hearing”, which would indicate that the suit is still to be finally disposed
of, Order XII Rule 6 of CPC refers to the “stage” of a suit. The “stage” of
a suit and the “hearing” of a suit do not connote the same thing. The suit
progresses through various stages. For instance, the stage for filing of
documents, stage for admission/denial of documents, the stage for
framing of issues, the stage for leading of evidence, and so on and so
forth. Hearings would take place at each stage, multiple times. There may
be several dates of hearing during the course of recording of evidence as
it may involve the examination of the witnesses. During multiple hearings
when the witnesses are being examined, the “stage” for the recording of
evidence would remain the same. A party who absents during a date of
hearing can join the proceedings if the stage of the case allows it, that is,
arguments had not been heard finally and only judgment remains to be
pronounced.
17. The exercise of powers under Order XII Rule 6 of CPC being “at
any stage” of the proceedings is, therefore, not dependent on “hearing” as
much as on the “stage”. Ipso facto, therefore, the judgment of Arjun
Singh (supra) cannot be applied to the disposal of an application under
Order XII Rule 6 of CPC. The “hearing” may conclude once the
“judgment” is reserved. But, the pronouncement of judgment is also a
stage, just as on the filing of an appeal, that would also be a stage in the
life of a suit.
18. It is, therefore, not possible to accept the contention of the learned
counsel for the petitioner/plaintiff that when the learned Trial Court
reserved orders on the application under Order XII Rule 6 of CPC, the
hearing had come to an end and therefore, as held in Arjun Singh
(supra), there was no scope left for the respondents/defendants to file an
application under Order VI Rule 17 of CPC.
19. The learned counsel for the petitioner/plaintiff relied upon the
judgment of this Court in Satya Bhushan Kaura (supra) to contend that
“reservation of orders” on the application under Order XII Rule 6 of CPC
would amount to “reservation of a judgment” and “cessation of hearing”.
A perusal of the said judgment would reveal that this court had actually
disposed of, on merits, the application moved under Section 151 CPC to
bring to the notice of the court the filing of another suit, after it had heard
arguments on the application under Order XII Rule 6 of CPC and
reserved the orders thereon. While doing so, the court merely noted the
objections raised by the learned counsel for the plaintiff as to the
maintainability of that application on the ground that there was no hiatus
between the stages of “reservation of judgment” and “pronouncement of
the same in open court”. Therefore, it cannot be said that this decision
had finally determined that after hearing arguments on an application
under Order XII Rule 6 of CPC, no application under Order VI Rule 17
of CPC could be filed.
20. It cannot be lost sight of that the court exercises an absolute
discretion when it deals with an application under Order XII Rule 6 of
CPC. The courts have repeatedly held that “judgments on admissions”
should not be passed lightly and that even if there is an unequivocal
admission by a party, judgment on admission may be declined, if the
court is of the opinion that passing such a judgment would work injustice
to the party making such an admission. This has been reiterated in S.M.
Asif (supra) that the exercise of powers under Order XII Rule 6 of CPC
cannot be claimed as a matter of right. The Rule is only an “enabling
provision” and “discretion” has to be used judiciously. This discretion should not be exercised in any manner to deny a valuable right to the defendant to contest the claim.
21. It is the considered view of this court, therefore, that given the
nature of the powers vested in the court under Order XII Rule 6 of CPC,
while a decision thereon may be treated as a “judgment” for purposes of
entertaining an appeal under the Letters Patent [as held in Shah Babulal
Khimji (supra)], at the stage when the case is reserved for orders, it is
still at a stage that would be at best, intermediate. It could lead to the
conclusion of the suit on account of complete determination of the rights
of the parties on the basis of admissions and the decree could follow. It
could equally result in the continuation of the suit, wholly or in part, on
account of the rejection of the application seeking judgment on the basis
of admissions. Therefore also, this Court concludes that there was nothing
to preclude the learned Trial Court from hearing the application under
Order VI Rule 17 of CPC, which was filed by the respondents/
defendants, even after the hearing on the application under Order XII
Rule 6 of CPC filed by the petitioner/plaintiff was concluded.
22. It would also be useful to refer to Order VI Rule 17 of CPC. This, again refers to a “stage of the proceedings” and not the “hearing”, as in Order IX Rule 7 of CPC. Thus, an application for amendment may be filed by either party “at any stage of the proceedings”. Of course, if the trial has commenced, the court may not allow such amendments, unless there was due diligence. As noticed hereinbefore, the “stage” of the case can be at the time of pronouncement as well as beyond, in the form of an appeal. Thus, an application for amendment can be filed upto the pronouncement of judgment and even after filing the appeal.
23. A similar view has been taken by the Allahabad High Court and
the Bombay High Court (Nagpur Bench). In Om Rice Mill v. Banaras
State Bank Ltd., 1999 SCC OnLine All 966, the High Court of
Allahabad, while relying on the judgments in Roe v. Davies, (1876) 2 Ch
D 729, 733, Baker Ltd. v. Medway & Co., (1958) 1 WLR 1216 (CA),
Badri v. S. Kripal, AIR 1981 Madh Pra 228 and B.N. Das v. Bijaya, AIR
1982 Orissa 145, observed that the expression used in Order IX Rule 7 of
CPC and that in Order VI Rule 17 of CPC are completely different and no
analogy could be drawn in order to interpret the term “at any stage”
occurring in Order VI Rule 17 of CPC on the basis of an interpretation of
Order IX Rule 7 of CPC.
24. In Laxman Marotirao Paunikar v. Keshaorao Rambhau
Paunikar, 2000 SCC OnLine Bom 169, the Bombay High Court (Nagpur
Bench) opined that the wording of Order VI Rule 17 of CPC was clear
and that amendment could be effected “at any stage of the proceedings”
irrespective of the fact that the hearing was complete, as amendment can
be sought even at the stage of appeal.
25. It is the considered view of this Court that since the purpose of
Order VI Rule 17 of CPC is to allow either party, at any stage, to alter or amend their pleadings in such manner as are necessary for the purpose of determining the real questions/controversies between the parties, subject to satisfying the court of due diligence, and in view of the fact that the power of the court under Order XII Rule 6 of CPC is discretionary, and could result in the final disposal of the matter, permanently debarring the defendant from exercising his right to defend such a suit, the application under Order VI Rule 17 of CPC should be considered on merits before the power under Order XII Rule 6 of CPC is exercised by the Trial Courts.
26. It may be noted that the decisions relied upon by the learned
counsel for the respondents/defendants, namely, Usha Balashaheb
Swami (supra) and Panchdeo Narain Srivastava (supra) relate to the
disposal on merits of applications seeking amendments to pleadings with
which this Court is not presently concerned.
27. This Court finds no error in the decision of the learned Trial Court
to take up the application under Order VI Rule 17 of CPC for hearing and
disposal despite having already heard the parties on the application under
Order XII Rule 6 of CPC. Needless to add that it would be for the learned
Trial Court to consider both the applications on merits.
28. The petitions being devoid of merits are accordingly dismissed
along with the pending applications. It is made clear that nothing
contained in this order shall be a reflection on the merits of the
application under Order VI Rule 17 of CPC or under Order XII Rule 6 of
CPC, which the learned Trial Court shall dispose of in accordance with
law.
29. The judgment be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
AUGUST 03, 2021
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