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  • #112098 Reply
    Tina DU
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    Order VI Rule 16 CPC reads as under:-

    “16. Striking out pleadings.- The Court may at any stage of
    the proceedings order to be struck out or amended any matter
    in any pleading –
    (a) which may be unnecessary, scandalous, frivolous or
    vexatious, or
    (b) which may tend to prejudice, embarrass or delay the fair
    trial of the suit, or
    (c) which is otherwise an abuse of the process of the court.”
    8. Thus this provision clearly empowers the Court to strike out any
    pleading if it is unnecessary, scandalous, frivolous or vexatious or tends
    to prejudice, embarrass or delay the fair trial of the suit or is otherwise
    an abuse of the process of Court. The underlying object of the Rule is
    to ensure that every party to a suit presents his pleading in an intelligible
    form without causing embarrassment to his adversary

    Sathi Vijay Kumar, 2006 (13) SCC 353

    Order VI Rule 16 held-

    “27. The above provision empowers a Court to strike out any
    pleading if it is unnecessary, scandalous, frivolous or vexatious
    or tend to prejudice, embarrass or delay fair trial of the suit or
    is otherwise an abuse of the process of the Court. The underlying
    object of the rule is to ensure that every party to a suit should
    present his pleading in an intelligible form without causing
    embarrassment to his adversary [vide Davy v. Garrett).

    1. Bare reading of Rule 16 of Order 6 makes it clear that the
      Court may order striking off pleadings in the following
      circumstances; (a) Where such pleading is unnecessary,
      scandalous, frivolous or vexatious; or (b) Where such pleading
      tends to prejudice, embarrass or delay fair trial of the suit; or (c)
      Where such pleading is otherwise an abuse of the process of the
      Court.

    At the same time, however, it cannot be overlooked that
    normally a Court cannot direct parties as to how they should
    prepare their pleadings. If the parties have not offended the rules
    of pleadings by making averments or raising arguable issues, the
    Court would not order striking out pleadings. The power to
    strike out pleadings is extraordinary in nature and must be
    exercised by the Court sparingly and with extreme care, caution
    and circumspection [vide Roop Lal v. Nachhatar Singh Gill,
    K.K. v. K.N. Modi ; United Bank of India v. Naresh Kumar)
    34. More than a century back, in Knowles v. Roberts Bowen,
    L.J. said:

    “It seems to me that the rule that the Court is not to
    dictate to parties how they should frame their case, is one
    that ought always to be preserved sacred. But that rule is,
    of course, subject to this modification and limitation, that
    the parties must not offend against the rules of pleading
    which have been laid down by the law; and if a party
    introduces a pleading which is unnecessary, and it tends
    to prejudice, embarrass and delay the trial of the action,
    it then becomes a pleading which is beyond his right. It
    is a recognized principle that a defendant may claim ex
    debito justitiae to have the plaintiff’s claim presented in an
    intelligible form, so that he may not be embarrassed in
    meeting it; and the Court ought to be strict even to severity
    in taking care to prevent pleadings from degenerating into
    the old oppressive pleadings of the Court of Chancery.”

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    • #112109 Reply
      Tina DU
      Guest

      Period of Limitation

      Supreme Court in the case of Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn.: (1971) 2
      SCC 860 as under:

      “7. ….. The necessity for enacting periods of limitation
      is to ensure that actions are commenced within a
      particular period, firstly to assure the availability of
      evidence documentary as well as oral to enable the
      defendant to contest the claim against him; secondly to give effect to the principle that law does not assist
      a person who is inactive and sleeps over his rights by
      allowing them when challenged or disputed to remain
      dormant without asserting them in a court of law. The
      principle which forms the basis of this rule is expressed
      in the maximum vigilantibus, non dermientibus, jura
      subveniunt (the laws give help to those who are
      watchful and not to those who sleep). Therefore the
      object of the statutes of limitations is to compel a
      person to exercise his right of action within a
      reasonable time as also to discourage and suppress
      stale, fake or fraudulent claims. ….”

      Arbitration Matter

      The Supreme Court has held in Union of India Vs. Popular Construction Co., AIR 2001 SC
      4010, that the power of the court to condone delay does not
      extend beyond the period of 30 days under Arbitration Act. The delay in re-filing of the
      petition has to be viewed in the light of the aforesaid period of
      limitation which is not stretchable beyond the period of three
      months and thirty days.

      The judgment of the Supreme Court in Improvement Trust was rendered
      by the Supreme Court while considering a case falling under
      Section 5 of the Limitation Act. Even though Limitation Act is
      applicable to a petition under the Arbitration and Conciliation Act,
      the limitation provided under Section 34(3) is elastic only to a
      limited extent, and not beyond that.

      Supreme Court in the case of Bharat Barrel and Drum
      Mfg. Co. Ltd. v. ESI Corpn.: (1971) 2 SCC 860 as under:
      “7. ….. The necessity for enacting periods of limitation is to
      ensure that actions are commenced within a particular period,
      firstly to assure the availability of evidence documentary as well
      as oral to enable the defendant to contest the claim against him;
      secondly to give effect to the principle that law does not assist
      a person who is inactive and sleeps over his rights by allowing
      them when challenged or disputed to remain dormant without
      asserting them in a court of law. The principle which forms the
      basis of this rule is expressed in the maximum vigilantibus, non
      dermientibus, jura subveniunt (the laws give help to those who
      are watchful and not to those who sleep). Therefore the object
      of the statutes of limitations is to compel a person to exercise
      his right of action within a reasonable time as also to discourage
      and suppress stale, fake or fraudulent claims. ….”

      The Supreme Court in the case of Union of India v. Popular
      Construction Company: (2001) 8 SCC 470 has held that the time limit
      prescribed under section 34 of the Act to challenge an award is not
      extendable by the Court under section 5 of the Limitation Act, 1963 in
      view of the express language of section 34(3) of the Act. However, this
      decision would not be applicable in cases where the application under
      section 34 of the Act has been filed within the extended time prescribed,
      and there is a delay in re-presentation of the application after curing the
      defects that may have been pointed out. This is so because section 5 of
      the Limitation Act, 1963 would not be applicable in such cases. Section
      5 of the Limitation Act, 1963 provides for extension of the period of
      limitation in certain cases where the Court is satisfied that the appellant/
      applicant had sufficient cause for not preferring an appeal or making an
      application within the specified period. In cases, where the application/
      appeal is filed in time, section 5 would have no application. The Supreme
      Court in the case of Indian Statistical Institute v. Associated Builders:
      (1978) 1 SCC 483 considered the applicability of section 5 of the Limitation
      Act, 1963 where the objection to an award under the provisions of the
      Arbitration Act, 1940 was filed in time but there was substantial delay in
      re-filing the same. The High Court in that case held that there was a delay
      in filing the objections for setting aside the award and consequently,
      rejected the application for condonation of delay. An appeal against the
      decision of the High Court was allowed and the Supreme Court rejected
      the contention that there was any delay in filing objections for setting
      aside the award.

      REFERRED TO:

      1. Delhi Transco Ltd. & Anr. vs. Hythro Engineers Pvt. Ltd.: 2012 (6) R.A.J. 299 (Del.).
      2. India Tourism Dev. Corporation Ltd. vs. R.S. Avtar Singh & Co.: FAO(OS) No.58/2011, Decided on 10.02.2011.
      3. M/s. Competent Placement Services through its Director/ Partner vs. Delhi Transport Corporation through its Chairman: 2011 (2) R.A.J. 347 (Del).
      4. The Executive Engineer vs. Shree Ram Construction Co.: 2011 (2) R.A.J. 152 (Del.).
      5. Improvement Trust vs. Ujagar Singh, (2010) 6 SCC 786.
      6. DSA Engineers (Bombay) vs. Housing & Urban Development Corporation Ltd.: 2003 (1) AD (Delhi) 411.
      7. Union of India vs. Popular Construction Company: (2001) 8 SCC 470.
      8. Union of India vs. Popular Construction Co., AIR 2001 SC 4010.
      9. S.R. Kulkarni vs. Birla VXL Limited: 1998 (5) AD (Delhi) 634.
      10. D.C. Sankhla vs. Ashok Kumar Parmar: 1995 (1) AD
        (Delhi) 753.
      11. Ashok Kumar Parmar vs. D.C. Sankhla: 1995 RLR 85.
      12. Indian Statistical Institute vs. Associated Builders: (1978) 1 SCC 483.
      13. Bharat Barrel and Drum Mfg. Co. Ltd. vs. ESI Corpn.: (1971) 2 SCC 860
    • #112110 Reply
      Tina DU
      Guest

      CONSOLIDATION OF SUIT

      Complete or even substantial and sufficient similarity of issue arising for decision in two
      different suits, enables them for consolidation for trial and decision.

      REFER TO

      Nirmala Devi vs. Arun Kumar Gupta, JT 2000 (4) SC 229.
      Col. Suresh Chand & Anr. vs. Shri Satish Dayal, I.A. no. 11307/2009 in CS(OS)2319/2006 decided on 28.01.2010.
      Chitivalsa Jute Mills vs. Jaype Rewa Cement, 2004 (3) SCC 85.
      Nirmala Devi vs. Arun Kumar Gupta and Ors., JT 2000 (4) SC 229.
      Virender Gupta vs. Nitender Gupta and Ors., 31(1987) DLT 406

      IN Nirmala Devi vs. Arun Kumar Gupta, JT 2000 (4) SC 229 to contend that a probate petition can be
      clubbed with a suit.

      1. Learned counsel appearing for defendants No. 1 to 3 and 5 has
        strenuously urged that the beneficiary of the Will in the probate petition,
        namely, the second wife of Late Sh. R.P. Srivastava is a senior citizen
        being above the age of 80 years. It is submitted that the present application
        is only an attempt to delay the whole proceedings. The probate petition
        throws up limited questions of law and facts which could be expeditiously
        disposed of. On the other hand, the present suit has raised various issues
        which would require a detailed trial and needlessly delay the proceedings
        in the probate petition. Reliance is placed on the following three judgments
        to contend that in such circumstances as that of the present case, the
        Court would normally not exercise power under Section 24 of the Civil
        Procedure Code.

      The Hon’ble Supreme Court in the case of Chitivalsa Jute Mills vs. Jaype Rewa Cement, 2004(3) SCC 85 in para 12 held as follows:

      “12. … Complete or even substantial and sufficient similarity of
      the issues arising for decision in two suits enables the two suits
      being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials.
      The evidence having been recorded, common arguments need to
      be addressed followed by one common judgment. …

      Nirmala Devi vs. Arun Kumar Gupta and Ors., JT 2000 (4) SC229 relied upon by the learned counsel for the plaintiff which states as follows:-

      “4. … Therefore, now remains the question whether the probate
      proceedings could be clubbed with the suit. Learned counsel for
      respondent No. 1 submitted that the civil suit is of the year 1987
      and that despite various orders of the High Court, it has remained
      pending and the probate proceedings are initiated by the appellant
      in 1997 regarding the Will of 1984. Be that as it may, the decision in the probate proceedings on the question of proof of the Will,
      will have a direct impact on the suit. Only on this short ground
      and without expressing any opinion on the merits of the
      controversy between the parties, we request learned District Judge,
      Gopalganj to make it convenient to dispose of the Probate
      proceedings being Probate Case No. 11 of 1997 along with civil
      suit being T.S. No. 27 of 1987….

    • #112121 Reply
      Tina DU
      Guest

      Code of Civil Procedure, 1908—Order VI Rules 17— Party proposing to make amendment—Application for
      amendment of pleadings must clearly state what is proposed to be omitted, altered, substituted or added
      to the original pleadings—Amendment cannot be allowed if it tantamount to changing the whole plaint
      with a new plaint—Complete replacement of old plaint with a completely new plaint is not permitted under
      Order VI Rule 17.

      Party moving an application for amendment of pleadings must state the portion proposed to be omitted, altered, substituted or added to original pleadings.

      Supreme Court in the case of M/
      s. Estralla Rubber vs. Dass Estate (Pvt.) Ltd., AIR2001 SC 3295 to
      submit that every amendment of pleading is to be allowed where such
      amendment is required for proper and effective adjudication of controversy
      between the parties and to avoid multiplicity of judicial proceedings subject
      to certain conditions such as allowing amendment should not result in
      injustice to the other side, a clear admission should not be allowed to be
      withdrawn and a time barred claim cannot be allowed to be raised.

      Gurdial Singh vs. Raj Kumar Aneja, (2002)2 SCC 445. In para 13, the Hon’ble Supreme Court held as follows:-

      1. …. Unless and until the court is told how and in what
        manner the pleading originally submitted to the court is proposed
        to be altered or amended, the court cannot effectively exercise
        its power to permit amendment. An amendment may involve
        withdrawal of an admission previously made, may attempt to
        introduce a plea or claim barred by limitation, or, may be so
        devised as to deprive the opposite party of a valuable right accrued
        to him by lapse of time and so on. It is, therefore, necessary for
        an amendment applicant to set out specifically in his application,
        seeking leave of the court for amendment in the pleading, as to
        what is proposed to be omitted from or altered or substituted in
        or added to the original pleading.

      The Hon’ble Supreme Court in the said judgment also took into account an amendment which is applicable in the State of Punjab and Haryana and the Union Territory of Chandigarh where Order 6 Rule 17
      sub-clause 2 has been added which reads as follows:-

      “17.(2) Every application for amendments shall be in writing and
      shall state the specific amendments which are sought to be made
      indicating the words or paragraphs to be added, omitted or
      substituted in the original pleading.”

      Order 6 Rule 17 CPC provides as follows:-

      “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 meaning of ‘alter’ in the Black’s Law Dictionary, Sixth Edition-1996 by Henry Campbell reads as follows:-

      “Alter: To make a change in; to modify; to vary some degree;
      to change some of the elements or ingredients or details without
      substituting an entirely new thing or destroying the identity of
      the thing affected. To change partially. To change in one or
      more respects, but without destruction of existence or identity
      of the thing changed; to increase or diminish.”

      The meaning of ‘amend’ in the Black’s Law Dictionary, Sixth Edition-1996 by Henry Campbell reads as follows:“ Amend. To improve. To change for the better by removing defects or faults. To change,
      correct, revise.


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