Hodam Ningol v. Khomdram Ningol — 1964 DIGILAW 29 (GAU)

ORDER : The Civil Revision petition is filed as against the order of Additional District Judge, Imphal, dated 23-7-63 refusing to permit the amendment of the written statement in Judicial Misc. Case No. 15 of 1962. 2. The material facts leading up to this revision petition are briefly these : That the opposite party No. 1 as a plaintiff brought a suit against the petitioners and opposite party Nos. 2 and 3 for the declaration of her title to one-third of the property described in the Schedule of the plaint and for partition and possession thereof. The defendants-petitioners in their written statement traversed the claim of the plaintiff and inter alia pleaded that the pattas in suit fell in the share of the defendants 1 to 3 and 6, and mutated in their names according to their family settlement about 20 years ago. Those lands are in their exclusive possession and they are directly paying revenue to the Government. They also took the plea of adverse possession. 3. The learned Munsiff after recording the evidence and hearing the parties decreed the plaintiffs suit. The defendants being aggrieved by the judgment and decree of the learned Munsiff preferred an appeal to the Court of District Judge, Imphal, who transferred the case to the file of learned Additional District Judge. 4. Thereafter, during the pendency of the appeal, the petitioners presented an application on 6-8-62, under Or. 6 Rule 17 C.P.C. read with Sec. 107(2) C.P.C. for amendment of their original written statement by adding a new para being para No. 4(1) after para No. 4 of the original written statement by way of giving particulars about the distribution of the suit properties by the last full owner among his heirs. 5. The application was opposed by the plaintiff opposite party No. 1 on the ground that the application, was filed 6 years after the filing of the plaint with a mala fide intention. It was also alleged that the proposed amendment is not necessary for the determination of the real point in controversy. Besides that this amendment will not only cause prejudice and inconvenience to the plaintiff but it will reopen the case for a fresh trial, therefore, it should be rejected. 6. The learned Additional District Judge upheld the objection of the plaintiff and dismissed the amendment application, vide his order dated 23-7-63. Besides that this amendment will not only cause prejudice and inconvenience to the plaintiff but it will reopen the case for a fresh trial, therefore, it should be rejected. 6. The learned Additional District Judge upheld the objection of the plaintiff and dismissed the amendment application, vide his order dated 23-7-63. This revision petition is filed against this order. 7. The sole point for determination in this petition is whether the lower Court erred in law in refusing to allow the amendment sought for by the defendants in their written statement. 8. The learned counsel for the petitioners vehemently contended that the object of Or. 6 Rule 17 is mat the Courts should get at and try the merits of the cases that come before them, and should consequently allow all amendments that may be necessary for the purpose of determining the real question in controversy between the parties provided it can tie done without causing injustice to the other side. 9. In the instant case the deeds of gift executed by the last full owner were not traceable at the time of filing of the written statement, therefore, no reference of them was made in the written, statement. But these particulars are very essential for the correct determination of the real point in controversy in the suit between the parties, therefore, the amendment should be allowed. In support of his argument he relied upon the case Cropper v. Smith, (1884-26 Ch D 700 at p. 710). In this case Bowen L.J. observed (at p. 710) as follows : "It is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I Know of no kind of error or mistake which if not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice as anything else in the case is a matter of right." 10. On behalf of the petitioner, A. Veeraju v. Venkayya, AIR 1960 Andh-Pra 222 was also referred to in support of the contention advanced before the Court. In this case Chandra Reddy J. keeping in view the two ruling? viz., AIR 1921 PC 50, Charandas v. Amirkhan and (3) AIR 1957 SC 357 , L.J. teach and Co. Ltd. v. Jardine Skinner and Co., observed as follows : "The High Court sitting in appeal has ample power to make an amendment of the pleadings which are necessary for effective adjudication of the questions in issue. An appellate Court would normally decline to allow an amendment if a fresh suit is barred by limitation on the date of the application, on the amended claim. But, that is only a circumstance to be regarded in exercise of the discretion and does not take away the power of the Court to do so if the interest of justice require it. A Court can allow an amendment even, where its effect is to take away a right if the interest of justice required. The only thing is that it should exercise circumspection in that regard. Where an amendment of the written statement sought at the stage of appeal did not deprive the plaintiff of any right nor was he taken by surprise there could be no real objection to the granting of amendment." 11. The counsel for the opposite party did not dispute the principle laid down in these rulings, but he contended that these rulings are wit applicable in this case as the proposed amendment is not at all necessary for the determination of the real question in controversy. 12. The counsel for the opposite party did not dispute the principle laid down in these rulings, but he contended that these rulings are wit applicable in this case as the proposed amendment is not at all necessary for the determination of the real question in controversy. 12. It was next urged that by this amendment the petitioners want to introduce a different and inconsistent case and thereby to cause a complete change of the front in the defence. 13. It was further urged on behalf of the opposite party that in this case the proposed amendment was applied for 5 years and 9 months after the filing of the original written statement and 2 years and 8 months after the filing of the present appeal and 3 months after filing an application under Or. 41 Rule 27 for admitting these documents as additional evidence. The petitioners have not explained this extraordinary delay by affidavit or otherwise, therefore by this the Court should infer that the application was not made bona fide. In support of his argument he relied upon. Dyaviah v. Shivamma, AIR 1959 Mys 188 and Chandu Modi v. State of Bihar, AIR 1961 Pat 298 . In both the cases an application for amendment was made at too late a stage, therefore, it was rejected. 14. I have given my most careful and anxious considerations to it and I have fully pondered over the rival considerations and I find that the argument of learned counsel for the opposite party carries a good deal of force. 15. But before dealing with the actual facts of the case I want to point out the settled rule regarding the amendment of pleadings. 16. The settled rule, with regard to amendment of pleadings, is that a party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the application is not made mala fide and the amendment can be allowed without injustice to the other side. 17. 17. On this point I may refer to the recent case Pirgonda Hongonda v. Kaigonda Shidgonda, (S) AIR 1957 SC 363 wherein Honble S.K. Das, J. observed as follows : "All amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in cost by depriving him of a good defence to the claim. The ultimate test therefore still remains the same can the amendment be allowed without injustice to the other side, or can it not ? In the light of this principle I shall examine the facts of the present case. 18. First of all I shall examine the question as to whether the petitioners are intending to introduce a new or inconsistent case. The petitioners in their written statement set up their case that late Krishna Singh distributed the land orally about 25 years ago. The defendant No. 2 Anganghal Singh son of late A. Krishna Singh as D.W. 3 also stated that the land was distributed to them orally. No attempt was ever made to prove the existence of any deed nor did the petitioners make any reference to the execution of any deed of gift in the way of distribution. In view of these facts it appears that the proposed amendment is not intended for the purpose of clarification or giving particulars of the ways of distribution asserted in the written statement and contended for in the trial, but it is intended to bring in a different and inconsistent case. In these circumstances to allow the amendment would mean to allow them to set up a different and inconsistent case from what was raised in their written statement. In these circumstances to allow the amendment would mean to allow them to set up a different and inconsistent case from what was raised in their written statement. 19. The other governing consideration in an application to amend the written statement should be how far if at all the proposed amendment of the defence is necessary for the determination of the real controversy between the parties. If that testis not satisfied, then the amendment should not be allowed, even on the ground that there can be no real prejudice by the amendment and that the costs awarded against the amending party will act as the panacea for any possible inconvenience occasioned by the amendment. There is always legal prejudice when irrelevant matters are allowed to be introduced by amendment. 20. Now I shall consider whether the proposed amendment of the defence is necessary to determine the real controversy between the parties. The learned Additional District Judge has held that this amendment is not necessary for solving the real controversy between the parties. This finding of the appellate court appears correct in the light of the facts of the case. 21. The facts which are intended to be introduced by way of amendment are merely facts of evidence i.e., facta probantia for the purpose of proving the alleged distribution. This amendment is therefore neither necessary for the determination of the real controversy between the parties nor it can be legally permitted under Or. 6 Rules 2 and 17 of the C.P.C. 22. Now the other important question that arises for consideration, is whether this application for amendment was made in good faith. 23. From the facts of the case it appears that the proposed amendment was applied for 5 years and 9 months after the filing of the written, statement and 2 years and 8 months after the filing of the appeal. The petitioners have not given any adequate explanation for this extraordinary delay. I, therefore, find that this application is not bona, fide. Besides that an amendment which seeks to reagitate the same questions and lead further evidence is an abuse of the process of the Court and hence should not be allowed. In the instant case if the application had been granted it would have necessitated a fresh issue and a fresh recording of evidence, I, therefore, find that the Court was right in rejecting such a belated application. In the instant case if the application had been granted it would have necessitated a fresh issue and a fresh recording of evidence, I, therefore, find that the Court was right in rejecting such a belated application. 24. No other point was raised before me. 25. As a result of the aforesaid discussion, I am fully satisfied that the finding of the lower Court is perfectly sound and calls for no interference at the hands of this Court. 26. The result is that the revision petition fails and is hereby dismissed with costs. Petition dismissed.