JUDGMENT
S.A. Bobde, J.
1. Heard Shri Mardikar, the learned counsel for the petitioner, and Shri Haq, the learned counsel for the respondents.
2. Rule returnable forthwith. Heard by consent.
3. This petition is directed against the order dated 26-3-2003 passed by the learned Joint Civil Judge, Senior Division, Akola by which the plaintiff’s application for amendment is rejected.
4. Mr. Mardikar, the learned counsel for the petitioner submits that the learned Civil Judge, Senior Division, Akola was not entitled to reject the application only on the ground the case was already closed for judgment. He submits that in view of Order VI, Rule 17 of Code of Civil Procedure an amendment can be allowed at any stage of suit.
5. Mr. Haq, the learned counsel for the respondents vehemently opposes this contention on the ground that the wordings empowering a Court to amend pleadings “at any stage of the proceedings” do not apply to the situation where the suit has been heard and reserved for judgment. He relies on a judgment of learned Single Judge in Wasudeorao Babasaheb Sonone and Anr. v. Agananath Ramlalji Jugele, reported in 1985 Mh.LJ. 565. That was a case in which this Court took the view that even though the Order XVIII, Rule 2 of the Code of Civil Procedure provides for examination of witnesses at any stage as mentioned in explanation in Rule 2 of Order XVIII of the Code of Civil Procedure, it is clear that if an application in regard to hearing of the suit is to be filed, it must be filed before the hearing of the suit is completed and not thereafter. Undoubtedly, the judgment takes the above view, but that is in the context of Order XVIII, Rule 2 of Civil Procedure Code. The learned Single Judge has observed the words “at any stage” occurring in explanation Rule 2 of Order XVIII which is applicable to the State of Maharashtra. Therefore, it must be construed in the above setting of Rule 2 and the subject matter of Order XVIII.
6. Order 18 Rule of the Code, at the relevant time read as follows :-
“2. (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case. Explanation — Nothing in this rule shall affect the jurisdiction of the Court, for reasons to the recorded in writing, to direct any party to examine any witness at any stage.
(See Sub-section (1) of Section 97 of Central Act 104 of 1976 reproduced on page V ante.)
7. It is clear that the subject matter of Order XVIII is different from the subject matter of Order VI. On the other hand, Mr. Mardikar, the learned counsel for the respondent relied on a judgment of the learned Single Judge of this Court in Laxman Marotirao Paunikar v. Keshaorao Rambhau Paunikar reported in 2000(4) Mh.L.J. 482, This case directly decides the entitlement of a plaintiff to amend the plaint after the case was closed for judgment. While considering the Order VI, Rule 17 of the Code of Civil Procedure, the learned Single Judge has considered the provisions of Order VI, Rule 17 of the Code of Civil Procedure and hold that the plaintiff is entitled to amend the pleadings “at any stage of the proceedings” and therefore, also after the matter is closed for orders.
8. Mr. Haq, the learned counsel for the respondent relied on the decision of the Supreme Court , Arjun Singh v. Mohindra Kumar and Ors., in which the matter fell for consideration under Order IX, Rule 7 of the Code. Order IX, Rule 7 of the Code which reads as follows:
“Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.” Interpreting this provision the Supreme Court observed as follows :–“Where the Court has adjourned the hearing of the suit ex parte”. Obviously they assume that there is to be a hearing on the date to which the suit stands adjourned. If the entirety of “hearing” of the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order 20, Rule 1, there is clearly no adjournment of “the hearing” of the suit, for there is nothing more to be heard in the suit.”
9. Their Lordship as observed as follows :
“The opening words of that rule are, as already seen, “Where the Court has adjourned the hearing of the suit ex parte’. Now, what do these words mean? Obviously they assume that there is to be a hearing on the date to which the suit stands adjourned. If the entirety of the “hearing” of the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order XX, Rule 1, there is clearly no adjournment of “the hearing” of the suit, for, there is nothing more to be heard in the suit.”
10. On the basis of aforesaid ruling the learned counsel contended that once the matter is closed for judgment, there is nothing more to be heard in the suit and therefore, phrase in Order VI to amend the plaint “at any stage of the proceeding” must be construed to limit the power of the Court to amend the plaint only till the hearing of the suit continues and not after this hearing is concluded and matter is reserved for judgment.
11. I am not inclined to accept this argument at all since the observation of the Supreme Court are made in a completely different context and particularly in view of the phraseology of Order IX, Rule 7 of the Code, which deals with what is to be done when a suit is adjourned for hearing.
12. It is true as pointed out by the learned counsel that the Single Judge of this Court while deciding Wasudeo ‘s case cited supra while construing the Order XVIII, Rule 2 of the Code construed the similar words which enable the Court to direct the parties to examine any witness “at any stage” to mean only till the stage of the hearing of the suit. That in my view was because the learned Single Judge was considered the question of examination of witnesses which is obviously a part of the hearing of the suit. Moreover, the words, “at any stage” appearing in Order 18, Rule 2 simply stop at that. The words in Order VI, Rule 17 specifically use the phrase “at any stage of the proceedings”, in my view therefore, the judgment of the Supreme Court and of the learned Single Judge of this Court is rendered under a different provision of law which is worded differently. The additional words “of the proceedings” require regard to be had to the proceeding as a whole, might from institution of the suit to its determination by a judgment. In fact, while considering the Order VI, Rule 16 of the Code fell for consideration of the Madhya Pradesh High Court in Badri Prasad Soni, v. S. Kripal Singh , the learned Single Judge took the view after referring to the several meanings of the word “proceeding” came to the following conclusion :-
“The suit is commenced on the presentation of plaint as is obtainable from Order 4, Rule 1 Civil Procedure Code instituted as “Suit to be commenced by plaint” and is disposed of so far as the trial Court is concerned, on the pronouncement of judgment under Order 20, Rule 3 of the Civil Procedure Code. This being the position regarding the commencement of the suit and its termination in the trial Court, in the light of the discussion contained in the preceding paragraph of this order, the irresistible conclusion is that delivery of judgment by the trial Court is a stage in the proceeding. In this view of the matter, it can safely be held that because of expression “at any stage of the proceedings” employed in Order 6, Rule 17 of the Civil Procedure Code, the Court is competent to allow either party to alter or amend his pleading any time before the judgment is pronounced, as till then the Judge has the seisin over the case and is not functus officio.”
13. The Madhya Pradesh High Court also referred to the same view taken by the Andhra Pradesh in S. Burrayya v. Satchayyamma, .
14. This view is followed by the learned Single Judge of this Court in an unreported case Sou. Hardeep Kaur w/o Jaswantsingh Jaggi v. S. Prabha w/o Prabhakarrao Sabnis in Civil Revision Application No. .859/1986 decided on 14th December, 1989.
15. I am therefore, of the view that the pleadings can be allowed to be amended in accordance with law at any stage of proceedings, including when the case is reserved for judgment. Indeed, there are several situations in which such an amendment might become necessary such as addition due to the death of a party which requires averments to be added in respect of the status of the legal representative or some other relevant subsequent events which has taken place subsequent to the closing of the case for judgment. Indeed the law provides for such amendments, in appropriate cases even at the appellate stage.
16. In the result, I am of view that the petition deserves to be allowed. Accordingly, the petition is allowed in terms of prayer Clause (1).