Case Note & Summary
The case arises from a suit for eviction filed by the landlord (appellants) against the tenant (respondents) for default in payment of rent from April 1990. The trial court decreed the suit on 25.4.1997. The tenant appealed (Civil Appeal No.113 of 1997). During the appeal, the tenant filed an application under Order 41 Rule 27 CPC to produce rent receipts, which was rejected on 7.8.2001. That rejection was upheld by the High Court in Writ Petition No.5276 of 2002 on 2.6.2003. Thereafter, on 21.7.2003, the tenant filed an application under Order VI Rule 17 CPC to amend the written statement to plead that before the suit, he had twice forwarded rent to the landlord which was not accepted. The Additional District Judge rejected that application on 16.8.2003. The tenant then filed a review application under Section 114 read with Section 47 CPC on 2.9.2003, which was allowed by the Appellate Court on 16.9.2003, permitting the amendment subject to costs of Rs.10,000. The landlord challenged this review order in the present appeal. The High Court held that the review was not maintainable as there was no error apparent on the face of the record. The amendment sought after the decree could not be allowed as it would re-open the trial and circumvent the finality of the decree. The court also noted that the tenant had earlier failed to produce evidence and had not shown any diligence. The appeal was allowed, setting aside the impugned order.
Headnote
A) Civil Procedure - Review - Section 114 CPC - Review of order rejecting amendment - The Appellate Court reviewed its earlier order dated 16.8.2003 rejecting the tenant's application for amendment of written statement and permitted the amendment subject to costs. The High Court held that the review was not maintainable as the earlier order was not based on any error apparent on the face of the record and the tenant had not shown any new facts or changed circumstances. (Paras 6-10)
B) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Amendment after decree - The tenant sought to amend the written statement after the suit had been decreed and the appeal was pending. The High Court held that such amendment could not be allowed as it would amount to re-opening the trial and circumventing the finality of the decree. (Paras 4-5, 11-12)
C) Civil Procedure - CPC (Amendment) Act 2002 - Section 16(2) - Applicability to pending appeals - The tenant contended that the amended Order VI Rule 17 CPC did not apply to the appeal as it was pending before the amendment. The High Court held that Section 16(2) of the Amendment Act saved only those proceedings where the amendment had already been made, not pending applications. (Paras 5, 13-14)
Issue of Consideration
Whether the Appellate Court could review its earlier order rejecting the tenant's application for amendment of written statement and permit such amendment after the suit had been decreed and the appeal was pending.
Final Decision
The appeal is allowed. The impugned order dated 16.9.2003 passed below Exhibit 49 in Civil Appeal No.113 of 1997 is set aside. The tenant's application for review and amendment is dismissed. No order as to costs.
Law Points
- Review jurisdiction under Section 114 CPC is limited and cannot be used to re-open concluded issues
- Amendment under Order VI Rule 17 CPC cannot be allowed after trial has concluded and decree passed
- Section 16(2) of CPC (Amendment) Act 2002 does not apply to appeals pending before amendment
Case Details
2012 LawText (BOM) (10) 63
Appeal from Order No.604 of 2010
Ms. Gauri Godse for Appellants, Mr. P.S. Dani for Respondent nos. 1 to 4
Waman Ramchandra Bhayde, Deepak Waman Bhayde, Ravindra Waman Bhayde
Kanta Narayan Patel, Chandrakant Narayan Patel, Raju Narayan Patel, Kirti Narayan Patel
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Nature of Litigation
Appeal against order granting review and permitting amendment of written statement in a rent eviction suit.
Remedy Sought
The appellants (landlords) sought to set aside the order dated 16.9.2003 passed by the Additional District Judge allowing the tenant's review application and permitting amendment of the written statement.
Filing Reason
The landlords challenged the review order as the tenant sought to amend the written statement after the suit was decreed and after earlier amendment application was rejected.
Previous Decisions
The trial court decreed the suit on 25.4.1997. The tenant's appeal (Civil Appeal No.113 of 1997) was pending. The tenant's application under Order 41 Rule 27 was rejected on 7.8.2001, upheld by High Court on 2.6.2003. The tenant's application under Order VI Rule 17 was rejected on 16.8.2003. The review of that rejection was allowed on 16.9.2003.
Issues
Whether the Appellate Court could review its earlier order rejecting the tenant's application for amendment of written statement and permit such amendment after the suit had been decreed and the appeal was pending.
Whether the amendment sought by the tenant after the decree could be allowed under Order VI Rule 17 CPC.
Submissions/Arguments
Appellants/Landlords argued that the review was not maintainable as there was no error apparent on the face of the record and the amendment after decree could not be allowed.
Respondents/Tenants argued that the amended Order VI Rule 17 CPC did not apply to the appeal as it was pending before the amendment, and the review was justified.
Ratio Decidendi
A review under Section 114 CPC is not maintainable unless there is an error apparent on the face of the record. The tenant's earlier application for amendment was rejected on merits, and no new facts or changed circumstances were shown. The amendment sought after the decree would re-open the trial and circumvent the finality of the decree, and hence cannot be allowed. Section 16(2) of the CPC (Amendment) Act 2002 does not save pending applications for amendment but only those where amendment had already been made.
Judgment Excerpts
The Plaintiff/Landlord has filed this Appeal under Order 43 Rule 1 of CPC challenging the Order passed below Exhibit 49 in Civil Appeal No.113 of 1997 granting his Review Application and permitting him to amend his Written Statement subject to payment of costs of Rs.10,000/ before the Appellate Court.
The Appellate Court after hearing the respective parties rejected that Application dated 10.7.2001 on 7.8.2001.
By impugned order dated 16.9.2003 passed below Exhibit 49 the Appellate Court granted that Review and permitted the Tenant to amend his Written Statement subject to payment of costs of Rs.10,000/.
Procedural History
The suit for eviction (R.C.S. No.20 of 1995) was decreed on 25.4.1997. The tenant appealed (Civil Appeal No.113 of 1997). During appeal, the tenant filed an application under Order 41 Rule 27 CPC which was rejected on 7.8.2001, upheld by High Court on 2.6.2003. On 21.7.2003, the tenant filed an application under Order VI Rule 17 CPC to amend written statement, rejected on 16.8.2003. On 2.9.2003, the tenant filed a review application under Section 114 read with Section 47 CPC, which was allowed on 16.9.2003. The landlord challenged this review order by filing a writ petition (W.P. No.6994 of 2003) which was converted into the present appeal (Appeal from Order No.604 of 2010) on 13.4.2010.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 43 Rule 1, Order 41 Rule 27, Order VI Rule 17, Section 114, Section 47
- CPC (Amendment) Act, 2002: Section 16(2)
