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2003 DIGILAW 1296 (AP)

Pratap Reddy v. M. Venkat Reddy

2003-10-22

P.S.NARAYANA

body2003
( 1 ) C. M. P. NO. 21161 of 2003 is filed to vacate the interim stay granted in C. M. P. No. 17779 of 2003 in the Civil Revision Petition dated 26-8-2003. At the stage of hearing of the vacate application, both the Counsel had advanced elaborate arguments touching the merits and demerits of the Civil Revision petition itself and with the consent of both the Counsel the main Revision is being disposed of. ( 2 ) THE present Revision is filed under article 227 of the Constitution of India by the revision petitioner/petitioner/plaintiff aggrieved by an order made by the Junior civil Judge Tandur, Ranga Reddy District, dated 6-2-2003 in I. A. No. 315/2002 in O. S. No. 1/1992. The said application was filed by the petitioner /plaintiff under Order 6 rule 17 of the Code of Civil Procedure, hereinafter referred to as "code" in short, praying the Court to amend the prayer adding the words "defendants 1 to 4" in the place of "defendants 1 and 2". It was specifically stated that it is a suit for specific performanceofcbntractandinjunctionbased on an agreement of sale dated 16-12-1985 filed by the petitioner/plaintiff against defendants 1 and 2 and the petitioner/ plaintiff came to know that the defendants 1 and 2 sold away the property in question under registered sale deed Ex. B-1 dated 4-1-1992 in favour of defendants 3 and 4 and in the light of the same, on advice, the application was moved with a prayer to amend the relief portion. The learned Junior civil Judge, Tandur as can be seen from the impugned order was mainly carried away by the delay in presenting the application and ultimately dismissed the application observing that the petitioner /plaintiff can file a fresh suit as against the subsequent purchasers - respondents 3 and 4. Assailing the same the present Civil Revision Petition had been preferred. ( 3 ) SRI N. Vasudeva Reddy, the learned counsel representing the Revision petitioner had submitted that while deciding an application for amendment of pleading, technicalities need not be gone into and the court may have to look into the substance of the amendment sought. Assailing the same the present Civil Revision Petition had been preferred. ( 3 ) SRI N. Vasudeva Reddy, the learned counsel representing the Revision petitioner had submitted that while deciding an application for amendment of pleading, technicalities need not be gone into and the court may have to look into the substance of the amendment sought. The learned Counsel also had drawn the attention of the Court to section 19{b) of the Specific Relief Act, 1963, hereinafter in short referred to as "act" for the purpose of convenience and had submitted that in this view of the matter since by way of bona fide mistake as against the subsequent purchasers the relief was not prayed for, to avoid future complications relating to the execution of decree in the event of the suit being decreed ultimately, the amendment application was moved. The learned Counsel also submitted that it is not a case where defendants 3 and 4 are being brought on record at this stage, but it is a case where the said parties already are on record, but by mistake there was an omission in the prayer. The learned Counsel also pointed out the respective pleadings of the parties in this regard and had submitted that in the interest of justice the amendment application may have tobe allowed. The learned Counsel also further contended that as far as the proviso introduced in Order 6 Rule 17 of the code as it stands as on today is concerned, the proviso cannot control the main provision and at any rate inasmuch as it is clear from the facts that it is only a bonafide mistake, the proviso will not be attracted and at any rate the conditions specified in the proviso also are satisfied. The learned Counsel further maintained that the grounds mentioned in the impugned order by the learned Junior civil Judge while dismissing the application cannot be sustained. ( 4 ) PER contra, Sri Bajrang Singh Thakur, the learned Counsel representing the contesting respondents/vacate petitioners had advanced elaborate arguments. The learned Counsel had maintained that there is inordinate delay inmoving this application at the stage of arguments and on this ground alone, the relief has to be negatived. ( 4 ) PER contra, Sri Bajrang Singh Thakur, the learned Counsel representing the contesting respondents/vacate petitioners had advanced elaborate arguments. The learned Counsel had maintained that there is inordinate delay inmoving this application at the stage of arguments and on this ground alone, the relief has to be negatived. The learned Counsel also had drawn the attention of this Court to Article 54 of the Limitation act, 1963 and had contended that since the present amendment application was moved beyond three years from the date of filing of the written statement the same is definitely barred by limitation and such relief by way of amendment cannot be granted. The learned Counsel also had taken this Court through the contents of the affidavit and had submitted that no reasons had been explained in the affidavit why at this stage the present amendment application had been thought of by the petitioner/plaintiff. Certain decisions also had been relied upon by the learned counsel representing the contesting respondents. ( 5 ) HEARD both the Counsel and perused the contents of the affidavit and also the respective pleadings of the parties on record. ( 6 ) IT may be appropriate to have a look at order 6 Rule 17 of the Code as introduced by act No. 22 of 2002 and the said provision reads as hereunder: 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: provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. " it may also be appropriate to have a look at order 6 Rule 17 as it originally stood and the said provision reads as hereunder: amendment of pleadings:-Thecourt 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. " much stress had been laid on the proviso which had been introduced in the said provision by Act No. 22 of 2002. It is pertinent to note that Rules 17 and 18 of Order 6 of the code were omitted by Act No. 46 of 1999 and were again substituted by the Amending act - Act No. 22 of 2002, dated 1-7-2002. It is also pertinent to note that no doubt in the proviso it is specified that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. As far as the main provision is concerned, the same is intact and the amendment of pleading can be allowed if the following conditions are satisfied, viz. 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 such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. In the present case, on facts, it is clear that the subsequent purchasers also were on record already and in the prayer portion the relief was prayed for as against defendants 1 and 2, the original owners only in fact who are not contesting the suit at all. It is also pertinent to note that the relief of injunction was prayed for as against all the parties. Thus, from the facts it is clear that it is a bona fide mistake or bona fide omission on the part of the petitioner/plaintiff in framing the prayer or in praying for the relief. I have no hesitation in holding that when such a bona fide mistake is brought to the notice of the court, the same can be rectified and the proviso pointed out by the learned Counsel for the contesting respondents may not come in the way of granting such relief in such cases. I have no hesitation in holding that when such a bona fide mistake is brought to the notice of the court, the same can be rectified and the proviso pointed out by the learned Counsel for the contesting respondents may not come in the way of granting such relief in such cases. ( 7 ) SECTION 19 (b) of the Act specifies that except as otherwise provided by this Chapter, specific performance of a contract may be enforced against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Likewise, Article 54 of the Limitation act 1963 reads as hereunder: description of Suit period of Limitation time from which period begins to run for specific Performance of a Contract three years the date fixed for the performance, or, if no, such date is fixed, when the Plaintiff has notice that performance is refused it may be true that the written statement was filed on 8-7-1992. The stand taken by the learned Counsel representing the contesting respondents is that since specific stand was taken in the written statement even in the year 1992 and since the amendment application was not moved within three years from the said date, the application is barred by limitation. It is relevant to note that always the question of limitation necessarily need not be a pure question of law. It may be a question of fact and law as well depending upon the facts and circumstances of a particular case. Strong reliance was placed on Additional District Magistrate Agra v. Prabhakar Chatitrvedi to the effect that an application for amendment of plaint beyond the period of limitation cannot be permitted. In Laxidas Dayabhai Kabrawala v. Nanabhai chunilal Kabrawalaand others the threejudge bench of the Apex Court held;. . . . . . . . . It is, no doubt, 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 are added or fresh reliefs sought by way of amendment. But this rule can apply only when either fresh allegations are added or fresh reliefs 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, the question of a bar of limitation is not one of the questions to be considered is allowing such clarification of a matter already contained in the original pleading. " as already referred to supra, from the facts it is clear that in the pleading and also in the relief, the relief of injunction in fact was prayed for as against all the parties, but there was omission while praying for the relief of specific performance in including defendants 3 and 4. In Vineet Kumar v. Mangal Sain the apex Court held that normally amendment is not allowed if it changes the cause of action, but it is well recognized that where the amendment does not constitute an addition of a new cause of action, or raise a new case but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. In Evelyn. J. Disney v. Rajeshwar Nath Gupta the Division bench of the Delhi High Court held that the mere delay in filing an application for amendment of pleading is per se no ground to dismiss it provided the amendment is bonafide and is necessary for determining the real question in controversy. In Sanatan Jena v. Babji Sahu it was held:"provisions contained in Order 6 rule 17 of C. P. C. aim at furtherance of ends of justice. One of the major factors which should weigh with the Court while dealing with an application for amendment of plaint is to ascertain whether intention of the party seeking amendment is mala fide or aimed at delaying the due process of law. The circumstances should indicate that the defendant would not suffer grave injustice or would not be materially prejudiced, if the prayer of amendment is allowed. If the ends of justice is subserved by allowing the amendment, then the power to allow the amendment should be liberally exercised, subject to the case that by amendment, the nature and character of the suit is not materially affected or altered. If the ends of justice is subserved by allowing the amendment, then the power to allow the amendment should be liberally exercised, subject to the case that by amendment, the nature and character of the suit is not materially affected or altered. The power to grant amendment of the pleading is intended to serve the ends of justice and is not fettered by any narrow or technical limitation. "in Dalip Kaur v. Major Single the circumstances which are relevant in the case of amendment of pleading had been enumerated as hereunder:"the purpose and object of Order 6, rule 17, C. P. C. is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts and the hon ble Supreme Court of India, it was held in AIR 1967 SC 96 , AIR 1974 SC 1126 , AIR 1978 SC 484 that the object of the rule was to decide the rights of the parties and not to punish them for their mistakes, by allowing the amendment of the pleadings in the appropriate cases. The exercise of such far-reaching discretionary power is governed by judicial consideration and wider the discretion greater has to be the care and circumspection on the part of the court on the basis of the different judgments it is settled that the following principles should be kept in mind in dealing with the applications for amendment of the pleadings:- (i) All amendments should be allowed which are necessary for determination of the real controversies in the suit; (ii) the proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original lis was raised; (iii) inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment. (iv) proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs; (v) amendment of a claim or relief barred by time should not be allowed; (vi) no amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time; (vii) no party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties; (viii) the delay in filing the petitions for amendmentofthepleadings should be properly compensated by costs; (ix) error or mistake which if not fraudulent should not be made on ground for rejecting the application for amendments of pleadings. "in M/s. Allahabad Law Journal Co. Ltd. v. Skyways Construction Corporation it was held that when additional relief was sought on same facts as stand pleaded in original plaint, amendment shall be allowed and the fact that the said relief was pleaded by defendant to be barred by limitation is immaterial. In suryanarayana v. Anasuyamma it was held that the Courts of law should bear in mind the sacred duty of doing justice between the parties in accordance with the provisions of the Code of Civil Procedure and that they do not exist for the purpose of punishing the parties, and the rules of procedure being intended to secure the proper administration of justice and that full powers of amendment must be enjoyed and should always be liberally exercised to serve that purpose. In vimala Ammal v. C. Suseela it was held thatin a suit for specific performance of a sale agreement the subsequent purchaser of the property is a necessary party and unless he is impleaded, the decree is nullity and cannot be executed against him. ( 8 ) IT is no doubt true that a proviso was introduced in Order 6 Rule 17 of the Code by act No. 22 of 2002. It is no doubt true that a party applying for the amendment may have to now explain the reasons so as to specify the additional ingredients specified in the proviso. But, at the same time the ingredients specified in the main provision also cannot be lost sight of and the provision as a whole should be read and interpreted to do substantial justice between the parties. But, at the same time the ingredients specified in the main provision also cannot be lost sight of and the provision as a whole should be read and interpreted to do substantial justice between the parties. The amendment of pleadings are to be liberally allowed no doubt, subject to certain limitations and exceptions. The proviso which had been introduced is only a safeguard to have a check. It is no doubt true that in view of the present proviso, the parties are expected to be more careful and cautious while moving application praying for amendment of pleadings. It is needless to say that the reasons specifying the ingredients of the proviso also may have to be explained. It is also pertinent to note that the Courts, while deciding such applications, may have to take into consideration the whole material available on record before the Court. I am thoroughly satisfied that on the respective pleadings of the parties and the reliefs which had been prayed for, the learned Junior Civil judge, definitely had erred in dismissing the application praying for amendment of pleading praying for the relief as against the defendants 3 and 4 also on the ground that the petitioner/plain tiff can be driven to yet another suit. In fact, it is a fundamental principle that as far as possible multiplicity of litigation is to be avoided. In stead, making such an observation, the relief was negatived and the application for amendment of pleading ultimately had been dismissed. Technicalities should not come in the way of doing substantial justice between the parties. Strong reliance was placed by the learned counsel for the respondents on a decision of the Apex Court in Gurdial Singh and others v. Raj Kumar Aneja and others wherein the apex Court held that an application relating to amendment of pleadings must set out exactly what is proposed to be omitted from, or substituted in or altered or added to the original pleadings. It is no doubt true that if the application is not a bonafide one, the party may not be entitled to the relief. In the present case, it is needless to say that the Revision petitioner is very specific stating that the petitioner is praying for the relief of specific performance as against defendants 1 to 4 in stead of defendants 1 and 2 as specified originally. In the present case, it is needless to say that the Revision petitioner is very specific stating that the petitioner is praying for the relief of specific performance as against defendants 1 to 4 in stead of defendants 1 and 2 as specified originally. But, there was a bonafide omission wherein defendants 3 and 4, the subsequent purchasers, were not mentioned in the relief portion in the plaint. If this is not rectified, the petitioner/plaintiff would be put to heavy suffering. ( 9 ) HENCE, viewed from any angle, I am satisfied that the impugned order cannot be sustained and the same is liable to be set aside. Accordingly, the order in question made by the Junior Civil Judge, Tandur, ranga Reddy District, Dated 6-2-2003 in i. A. No. 315/2002ino. S. No. l/1992 is hereby set aside and the same is hereby allowed. ( 10 ) ACCORDINGLY, the Civil Revision petition is allowed. No order as to costs.