[Citation : RLW 2003(1) Raj. 461] (Rajasthan High Court) Jaipur Bench HONBLE GYAN SUDHA MISRA & ANOOP CHAND GOYAL, JJ. Dwarka Prasad Versus State of Rajasthan & Ors. D.B. Habeas Corpus Petition No. 4804 of 2001 Decided on 29.11.2001 Penal Code, Sec. 363 and 379 and Constitution of India, Art. 226 - Habeas Corpus - Allegation of abduction of minor girl in March, 2001 - Filed FIR - Neither traced out her nor filed charge sheet till Nov., 2001 - Filed instant petition - Court took tough attitude - Produced within three days - Held - It is unfortunate that the Court has to engage itself in monitoring the investigation of cases based on FIR - Investigation should be carried out without interference and provoking the informant to file habeas corpus petition - Girl left voluntarily and was major - Respondents are at liberty to initiate action against the petitioner to curb and check frivolous litigation - Left the girl at her liberty to go where she wants. (Paras 2 to 5) Habeas Corpus Petition dismissed be infructuous. We are satisfied that it was not a case of illegal detention since the detenu has stated her age as 19 years who had voluntarily married Rajesh Sharma and out of the wedlock she has given birth to a child who is three moths old. Since the alleged detenu is stated to be a major, she is at liberty to go anywhere she wants. (Para 5) Jitendra Pandey, for Petitioner Rajendra Yadav, Public Prosecutor for State Honble CHAUHAN, J.–The instant revision petition has been filed against the order passed by the learned Civil Judge (Senior Division), Makrana, in Civil Suit No. 2/1996 passed on 2.9.99 rejecting the application filed under Order VI Rule 17 of the Code of Civil Procedure (hereinafter called ``the Code) for amendment in the plaint. (2). The said application has been rejected, giving the details of the plaint, by the learned trial Court on the ground that the facts suggested in the amendment application are already on record and on the said issues, evidence has already been led, thus, by amendment; the facts sought to be incorporated were not necessary to determine the real controversy in issue between the parties. (3). It is settled legal proposition that amendment in the pleadings may generally be allowed and the amendment may also be allowed at a belated stage. (3). It is settled legal proposition that amendment in the pleadings may generally be allowed and the amendment may also be allowed at a belated stage. However, it should not cause injustice or prejudice to the other side. The amendment sought should be necessary for the purpose of determining the real question in controversy between the parties. Application for amendment may be rejected if the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him injury which could not be compensated in terms of cost or change the nature of the suit itself as it cannot be permitted to create an entirely new case by amendment. A right accrued in favour of a party by lapse of time cannot be permitted to be taken away by amendment. Amendment can also be allowed at appellate stage. Introduction of an entirely new case, displacing even admission by a party is not permissible. (Vide P.H. Patil vs. Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil & Ors. (1), Nanduri Yogananda Laxminarsimhachari & Ors. vs. Agasthe Swarswamivaru, (2), M/s. Modi Spinning and Weaving Mills Co. Ltd. vs. M/s. Ladha Ram & Co. (3), Pandit Ishwardas vs. State of M.P. (4), and Mulk Raj Batra vs. District Judge, Dehradun, (5). (4). Similar view has been reiterated in G. Nagamma & Anr. vs. Siromanamma & Anr. (6). However, a party cannot be permitted to move an application under Order 6 Rule 17 of the Code after the judgment has been reserved. (Vide Arjun Singh vs. Mohindra Kumar & Ors. (7). (5). In Laduram vs. Sheodev (8), this Court held that if the plaintiff wants to add certain facts, which the plaintiff had not chosen to mention in the original plaint and the same had been in his knowledge when the plaint was instituted, the plaintiff cannot be allowed to make fresh allegation of facts by way of amendment at a belated stage. While deciding the said case, this Court placed reliance upon the judgment in Gopal Krishanamurthi vs. Shreedhara Rao (9). In Gauri Shankar vs. M/s. Hindustan Trust (Pvt) Ltd. (10), the Apex Court held that in case of gross delay, application for amendment must be rejected. Same view had been reiterated in Union of India & Ors. Vs. Surjit Singh Atwal (11). (6). In Gauri Shankar vs. M/s. Hindustan Trust (Pvt) Ltd. (10), the Apex Court held that in case of gross delay, application for amendment must be rejected. Same view had been reiterated in Union of India & Ors. Vs. Surjit Singh Atwal (11). (6). It is settled legal proposition that amendment sought time- barred, where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of pleadings, amendment in such circumstance must be refused. (Vide Radhika Devi vs. Bajrangi Singh (12), and Dondapati Narayana Reddy vs. Duggireddy Venkatanarayana Reddy (13). (7). In G. Nagamma & Ors. vs. Siromanamma & Anr. (14), the Honble Apex Court held that in an application under Order 6 Rule 17, even an alternative relief can be sought; however, it should change the cause of action or materially affect the relief claimed earlier. (8). In Vineet Kumar vs. Mangal Sain Wadhera (15), the Honble Supreme Court held that normally amendment is not allowed if it changes the cause of action, but where the amendment does not constitute the addition of a new cause of action, or raises a new case, but amounts to not more than adding to the facts already on record, the amendment should be allowed even after the statutory period of limitation. (9). In Pasupuleti Venkateswarlu vs. Motor & General Traders (16), the Honble Supreme Court observed as under :- ``It is basic to our processual jurisprudence that the right to relief must be judges to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. (10). Equity justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. (10). In Muni Lal vs. Oriental Fire & General Insurance Co. Ltd. (17), the Honble Apex Court held that the relief of amendment should be granted to ``render substantial justice without causing injustice to the other party or violating fair play and the Court should be entitled to grant proper relief even at the state of appellate forum. Similar view has been reiterated in Jagdish Singh vs. Nathu Singh (18). (11). In A.K. Gupta & Sons vs. Damodar Valley Corporation (19), the Honble Supreme Court held that where the amendment does not constitute the addition of new cause of action or raises a different case but amounts to no more than an additional different approach to the same facts, the amendment should be allowed even if the statutory period of limitation has expired. While deciding the said case, reliance had been placed upon the judgment in Charan Das vs. Amit Khan (20) and L.J. Leaon & Co. Ltd. vs. Jardine Skinner & Co. (21). The Court observed as under :- ``The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action, particularly when a suit on new case or cause of action is barred (Weldon vs. Neal, (1887) 19 QBD 394), but it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raises a different case but amounts to no more than a different or additional approach of the same facts, the amendment can be allowed even after the expiry of statutory period of limitation. (Charandas vs. Amir Khan, AIR 1921 PC 50; and L.J. Leach & Co. Ltd. vs. Jardine Skinner & Co., AIR 1957 SC 357 ). (12). (Charandas vs. Amir Khan, AIR 1921 PC 50; and L.J. Leach & Co. Ltd. vs. Jardine Skinner & Co., AIR 1957 SC 357 ). (12). In Smt. Ganga Bai vs. Vijay Kumar (22), the Honble Supreme Court observed as under :- ``The power to allow an amendment is undoubtedly wide a.05.at any stage, be properly exercised in the interest of justice, the law of limitation notwithstanding, but the exercise of such far-reaching discretionary power is governed by judicial consideration and wider the discretion, greater ought to be the care and circumspection on the part of the Court. (13). In M/s. Ganesh Trading Co. vs. Maoji Ram (23), the Honble Supreme Court observed that where amendment is found to be necessary for promoting the ends of justice and not for defeating it, the application should be allowed. Similar view had been reiterated in B.K.N. Pillai vs. P. Pillai & Anr. (24). (14). In Estrella Rubber vs. Dass Estate Pvt. Ltd., (25), the Supreme Court held that mere delay in making the amendment application is not enough to reject the application unless a new case is made out, or serious prejudice is shown to have been caused to the other side so as to take away any accrued right. (15). Similarly, in Siddalingamma & Anr. vs. Mamdha Shenoy (26), the Honble Supreme Court held that the Doctrine of Relation Back applies in case of amendment for the reason that the amendment generally governs the pleadings as amended pleadings would be deemed to have been filed originally as such and the evidence has to be read and appreciated in the light of the averments made in the amendment petition. Similar view has been reiterated in Raghu Thilak D. John vs. S. Rayappan & Ors. (27). (16). But in Vishwambhar & Ors. vs. Laxmi Narayan (28), the Honble Supreme Court held that the amendment, though properly made, shall not relate back the date of filing of the suit and cure the defect of limitation where the amendment changes the basis of the suit itself and in such an eventuality, suit has to be considered to have been filed on the date of amendment for the purpose of limitation. (17). (17). In Laxmidas Dahyabhai Kabarwala vs. Nanabhai Chunilal Kabarwala (29), the Honble Supreme Court observed as under :- ``It is true that save in exceptional cases, leave to amend under Order 6 Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations added or fresh relief sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. The present is a fortioti so. (18). In Om Prakash Gupta vs. Ranbir B. Goyal (30), the Apex Court held that the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed ordinarily has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. The Court further observed as under :- ``Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial note of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the former case, the court may take judicial note of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so far the purpose of determining the real questions in controversy between the parties. (19). The amendment may be necessary for the reason that decision of a case cannot be based on grounds out-side the pleadings of the parties and it is the case pleaded that has to be founded; without the amendment of the pleadings, the Court would not be entitled to modify or alter the relief as relief not founded on pleadings cannot be granted. (Vide Shri Mahant Govind Rao vs. Sita Ram Kesho (31); and Trojan & Co. vs. RM. N.N. Nagappa Chettiar (32). (20). In Fritiz T.M. Clement & Anr. vs. Sudhakaran Nadar & Anr. (33), the Apex Court examined the similar issue and held as under :- ``There is nothing in these two sub-paras which changes the basis and character of the suit. Nor can they have any prejudicial effect vis-a-vis the defence of respondents.....Some of these averments may, at best be considered unnecessary but do not tantamount to setting up a new case or cause of action. So also, the mere fact that in regard to quantification of the fee, some changes are sought to be introduced while retaining the total amount claimed in the original plaint, does not mean that the nature of relief claimed has undergone a material change. Therefore, the grounds of rejection of amendments are legally unjustified and based on non-application of mind to the exact nature of amendments. (21). Therefore, the grounds of rejection of amendments are legally unjustified and based on non-application of mind to the exact nature of amendments. (21). In Hanuwant Singh Rawat vs. M/s. Rajputana Automobiles, Ajmer (34), this Court (Jaipur Bench) summarised the legal position as under :- (i) That the amendment of pleadings should ordinarily be allowed by the Court, once it is satisfied that the amendment is necessary for the just and proper decision of the controversy between the parties; (ii) The amendment of the pleadings should not ordinarily be declined only on the ground of delay on the part of the appellant in seeking leave of the Court to amend the pleadings, if the opposite party can suitably be compensated by means of costs etc. Even inconsistent pleas can be allowed to be raised by amendment in the pleadings; (iii) However, amendment of pleadings cannot be allowed so as to completely alter the nature of the suit; (iv) Amendment of the pleadings must not be allowed when amendment is not necessary for the purpose of determining the real questions in the controversy between the parties; (v) The amendment should be refused where the plaintiffs suit would be wholly displaced by the proposed amendment; (vi) Where the effect of the amendment would be to take away from the defendant a legal right which has accrued to him by lapse of time or by operation of some law; (vii) The amendment in the pleadings should not be allowed where the court finds that amendment sought for has not been made in good faith or suffers from lack of bonafides; and (viii) Ordinarily, the amendment must not be allowed where a party wants to withdraw from the admission made by it in the original pleadings. (22). The instant case requires consideration in the light of the aforesaid settled legal propositions. In the instant case, as the amendment sought does not go to the root of the case, nor it is necessary to decide the controversy and the facts, which petitioner wanted to add, were in his knowledge and the amendment application has been moved at a belated stage, i.e. after several years, and at such a belated stage the amendment sought by the revisionist is not possible, nor the same is necessary to decide the real controversy in the dispute between the parties. Therefore, it cannot be held that in refusing the amendment, the Court below has committed any irregularity or jurisdictional error and as such, the order impugned requires to be interferred in exercise of jurisdiction of this Court under Sec. 115 of the Code. The revision is devoid of any merit and accordingly dismissed.