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2010 DIGILAW 1111 (ALL)

LAXMI NARAIN v. SHYAM LAL

2010-04-05

ANIL KUMAR

body2010
JUDGMENT ANIL KUMAR, J.-By means of the present writ petition, the petitioner has challenged the order dated 9.9.1999 passed. by VIth Additional District Judge, Lakhimpur Kheri by which amendment application moved under Order VI, Rule 17 of Civil Procedure Code, 1908 of the respondent Nos.1 and 2 for amendment in written statement was allowed at the appellate stage. 2. In brief, the facts of the instant case are that the petitioner filed a Civil Suit (Civil Suit No. 262 of 1987) in the Court of Civil Judge (Junior Division) Lakhimpur Kheri for permanent injunction on 4.9.1987. In the said suit the plea which were taken by the petitioner in respect of two sets of property mentioned in paras 1 and 2 of the plaint. One, in respect to a house belonging to Smt. Chandrakali from whom the petitioner claims his right on the basis of registered Will dated 11.6.1974 and another, in respect to the tenancy right in rental shop in which petitioner claimed that he is running the utensil business alongwith Smt. Chandrakali and his brother Ashok Kumar. Respondent Nos. 1 and 2 Shyam Lal and Smt. Phoolmati, who are father and mother of the petitioner, had filed a written statement in the suit, on the ground that- a Will has been executed by Smt. Chandrakali (sister of respondent No.1) in favour of Smt. Phoolmati as such they are the owner of the property, if any left by Late Chandrakali, plea was also taken by them that the house left by Smt. Chandrakali was benami in her name and it actually belongs to them. On the basis of pleadings and material evidence on record, the Trial Court by the judgment and decree dated 21.5.1996 allowed the suit. 3. Aggrieved by the same, the respondent Nos. 1 and 2 filed an appeal (Appeal No. 96 of 1996) on 25.5.1996 before the VIth Additional District Judge, Lakhimpur Kheri, thereafter on 17.5.1999, the respondent Nos. 1 and 2 moved an application under Order VI, Rule 17 of C.P.C. for amendment of the written statement, against which petitioner had filed his objection on 30.7.1999. The said amendment application was allowed by opposite party No.4 by means of order dated 9.9.1999, hence the present writ petition. 4. 1 and 2 moved an application under Order VI, Rule 17 of C.P.C. for amendment of the written statement, against which petitioner had filed his objection on 30.7.1999. The said amendment application was allowed by opposite party No.4 by means of order dated 9.9.1999, hence the present writ petition. 4. Sri S.S. Azmal Advocate brief holder of Sri Safiq Mirza, learned Counsel for the petitioner while assailing the order dated 9.9.1999 passed by respondent No.4 submits that by means of amendment the respondent Nos. 1 and 2 wants to introduce a new case at the belated stage that he was brother of Smt. Chandrakali being her nearest heir, as such the tenancy of the disputed shop shall devolve upon him. The said plea was totally different to the case as set up by the respondent earlier in their written statement that respondent No.2 Smt. Phoolmati was the tenant of the disputed shop. The other amendment sought by means of amendment application that respondent No.3 Ashok Kumar was not traceable since last seven years so he shall be presumed to be dead as such the right and title of respondent No.3 in the property in dispute shall devolve upon respondent No.2. He further submits that the amendment cannot be allowed as in this regard the Trial Court had already rejected an application so the amendment application deserves to be dismissed on said ground as well as on the ground of delay and laches and also on the ground that the application does not discloses that as to why the amendment in spite of due diligence could not have been raised earlier. 5. Sri S.S. Azmal, learned Counsel for the petitioner further submits that the Court below have no jurisdiction to allow the amendment application unless the condition provided in the proviso under Order VI, Rule 17 of the C.P.C are satisfied i.e., the Court below before allowing the amendment had come to the conclusion that in spite of due diligence, the parties cannot raise the plea by way of amendment before commencement of the trial as held in the cases of Vidyabai and others v. Padmalatha and another 1 2009 (74) ALR 357 (SC)=2009 (73) AIC 34 (SC)= (2009) 2 SCC 409 ., and in the instant case there was not a whisper of such satisfaction in the impugned order passed by the opposite party No.4. Moreover, after a decree passed by the Trial Court in favour of petitioner valuable rights have accrued to him and in view of the stand taken by the respondent in the written statement before the Trial Court. The respondents cannot be allowed by this process, to take a new case and deprive the petitioner of the valuable rights that has accrued to him on the basis of the stand taken by the respondents No.1 and 2 in their written statement before the Trial Court. 6. In support of the said submission reliance had been placed upon M/s. Modi Spinning and Weaving Mills Co, Ltd. and another v. M/s. Ladha Ram and Co.2 (1976) 4 SCC 320 ., M/s. New India Fertilizers Barabanki and anatha v. Additional District Judge, Court No. 1 Barabanki and another 3 (2006) (24) LCD 943=2006 (3) ARC 518. and Alijan v. 2nd Addl. District Judge, and others 4 2006 (63) ALR 605. 7. Lastly, it was submitted on behalf of the petitioner that in the impugned order the opposite party No.4 had given a finding that an amendment was not necessary, despite the said finding allowed amendments so the impugned order dated 9.9.1999 is contrary to law as laid down in the case of M/s New India Fertilizers Barabanki and another (supra) and liable to be set aside. 8. Sri N.N. Jaiswal learned Counsel appearing on behalf of opposite parties No. 1 and 2 while defending the order in question passed by opposite party No.4 submits that neither any new case nor defence were set up through the proposed amendment as such the Court below rightly allowed the amendment, keeping in view for proper and adequate disposal of the controversy involved in the case with a cost of Rs. 500/ - so the present writ petition filed by the petitioner is misconceived and liable to be dismissed. 9. I have heard the learned Counsel for the parties and perused the record. 10. In order to resolve the controversy which is involved in the present case, it is necessary to state the following facts in brief. The Order VI, Rule 17 CPC as exists before 1999 is quoted as under: "Order VI, Rule 17: "17. 9. I have heard the learned Counsel for the parties and perused the record. 10. In order to resolve the controversy which is involved in the present case, it is necessary to state the following facts in brief. The Order VI, Rule 17 CPC as exists before 1999 is quoted as under: "Order VI, Rule 17: "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 aforesaid provision was omitted by the Civil Procedure Code (Amendment) Act, 1999. Section 16 of the Amendment Act reads as follows: "16. Amendment of Order VI, in the First Schedule, in Order VI. xxx xxx xxx xxx (iii) Rules 17 and 18 shall be omitted." The provision as it exists now after the Civil Procedure Code (Amendment) Act, 2002 Order VI, Rule 17 "17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 is seen that before the amendment of Order VI, Rule 17 by Act 46 of 1999, the Court has taken a very wide view of the power to amend the pleadings including even the plaint as could be seen from L.J. Leach and Co. Ltd. v. Jardine Skinner and Co.1 AIR 1957 SC 357 = 1957 SCR, 438] SCR at 450 and Gurdial Singh v. Raj Kumar Aneja 2 2002 (48) ALR 635 (SC) = (2002) 2 SCC 445 . By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on section 148 for extension of time for any purpose. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on section 148 for extension of time for any purpose. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 14 by Act 22 of 2002 w.e.f. 1.7.2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit amendment as described therein. 3ut it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is the proviso which falls for consideration." 11. It is to be noted that the provisions of Order VI, Rule 17, CPC have been substantially amended by the CPC (Amendment) Act, 2002. 12. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amendment of Order VI, Rule 17 was due to the recommendation of the Law Commission since Order (sic-Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy /hesitation all over the country and also leading to boycott of Courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. This evoked much controversy /hesitation all over the country and also leading to boycott of Courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and manifests the absence of due diligence on the part of the appellants dis-entitling them to relief.. 13. In the case of Vidyabai alld others v. Padmalatha and another (supra) wherein Hon'ble the Apex Court has held as under: "By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002) Parliament inter alia inserted a proviso to Order VI, Rule 17 of the Code, which reads as under: "Provided that no applicatioi1 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 is couched in a mandatory form. The Court's jurisdiction to allow such an application is taken away unless the condition precedent therefor are satisfied viz, it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint." Further in the case of North Eastern Railway Administration, Gorakhpur v. North Eastern Railway Administration, Gorakhpur Bhawan Das (D) By L.Rs.1 2008 (3) ARC 911 = 2009 (74) ALR 370 (SC), wherein Hon'ble Supreme Court has held as under:- . "In so far as the principles which govern the question of granting or disallowing amendments under Order VI, Rule 17 C.P.C, (as it stood at the relevant time) are concerned, these are also well settled. Order VI, Rule 17 C.P.C. Postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgaonda Shidgonda Patil and others 1 AIR 1957 SC 363 ., which still holds the field, it was held that all amendments ought to be allowed which. satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see: Gajanan jaikishan joshi v. Prabhakar Mohanlal Kalwar 2 (1990) 1 SCC 166 =1990 SCFBRC 134.)". Thus in nutshell, the provisions of amendment of pleading provided under Order VI, Rule 17 CPC as exits today can be summarized and crystallized as under: "Order VI, Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has against been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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 has against been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment to any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of the due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous application which are filed to delay the trial. There is no illegality in the provision." 14. I have carefully perused the pleadings and grounds raised in the present case as well as the facts as mentioned in the amendment application preferred by respondent No. 1 (Annexure-3 to the writ petition). From the same, it is crystal clear that neither facts are pleaded nor any ground has been raised in the amendment application to convince that despite in exercise of due diligence the said matter cannot be raised by the respondent Nos. 1 and 2 earlier. So in these circumstances as per the proviso of Order VI, Rule 17, CPC the relief of amendment as sought by respondent No.1 and 2 deserves to be denied. Further, in the present case the plea which was sought to be introduced after 11 years of filing of written statement at the appellate stage with a view to defeat the rights of the petitioner which has occurred to him by passage of time and by way of amendment the respondents No. 1 and 2 wants to withdraw an admission already made by them that Smt. Phoomati was tenant and by way of amendment wants to introduce new case that Smt., Chandrakali was tenant and not Smt. Phoolmati, so respondent No.1 being brother and nearest heir of deceased Smt. Chandrakali Devi as ,such the tenancy of the disputed shop shall devolve upon him. So I am of the opinion that the amendment sought by the respondents at the appellate stage was not only delayed but also with an intention to recite from the earlier evidence and the evidence which had been given by them earlier at the stage of trial before the passing of decree would definitely be contradictory to the amendment which they were seeking as such the same cannot be allowed (See Alijan v. 2nd Additional District judge and others 3 2006 (63) ALR 605). 15. By the amendment the new plea which the respondent wants to introduce in their written statement in order to displace and demolish the case of the petitioner at the appellate stage is completely contradictory to their earlier admission made in their written statement the same is not permissible by law. In the case of M/s. Modi Spinning & Weaving Mills Co. Ltd. and another v. M/s. Ladha Ram & Co.1 (1976) 4 SCC 320 in which Hon'ble the Apex Court has held as under: "The decision of the Trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendment are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the Trial Court." 16. Moreover, from the perusal of the impugned judgment, the Appellate Court allowed the amendment in question without taken into the proviso under Order VI, Rule 17 CPC which came into existence after Civil Procedure Code (Amendment) Act, 2002 simply on the ground that keeping in view that liberal approach be taken while allowing the amendment in written statement so amendment application could not be rejected on the ground of delay. Thus, the order under challenged is in contravention to the proviso of Order VI, Rule 17 CPC as respondent Nos. Thus, the order under challenged is in contravention to the proviso of Order VI, Rule 17 CPC as respondent Nos. 1 and 2 have failed to prove that in spite of due diligence, they could not have raised the matter before commencement of the trial, which is one of the foremost and mandatory condition for allowing the amendment as per the proviso to Order VI, Rule 17 CPC. as exists now after the Civil Procedure Code (Amendment) Act, 2002. 17. For the foregoing reasons, I am of the opinion that the present writ petition filed by the petitioner deserved to be allowed. 18. Accordingly, the writ petition is allowed and the order dated 9.9.1999 passed by opposite party No.4 as contained in annexure No.5 to the writ petition is hereby set aside. 19. However, I direct the Appellate Court to proceed with the matter on priority basis and dispose of the same on merit after hearing the learned Counsel for the parties at an early date. 20. No order as to costs. Petition Allowed.