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2010 DIGILAW 2804 (ALL)

Ram Babu v. District Judge Unnao

2010-09-14

ANIL KUMAR

body2010
JUDGMENT : Anil Kumar, J. – Heard Sri A.S. Chauhan, learned counsel for the petitioners and Sri Rakesh Srivastava, learned Standing Counsel. By means of present writ petition, the petitioner has challenged the orders dated 16.11.2009 passed by Additional Civil Judge(Junior Division), Unnao and order dated 21.05.2010 passed by District Judge, Unnao. 2. In brief the facts of the present case are to the effect that the plaintiff/respondent no. 3(Ram Devi @ Chandrakala) wife of Late Mohan, filed a Civil Suit numbered as 174 of 2001 in the court of Additional Civil Judge(Junior Division), Unnao for cancellation of sale-deed dated 18.11.1998 alleged to be executed by her in favour of the petitioners who are the defendant in the said Suit. 3. Petitioner-defendant filed written statement denying the allegation and thereafter the replication was also filed by the plaintiff on the basis of pleadings on record, thereafter issues were framed by the trial court on 30.04.2003 and plaintiffs evidence was also recorded as PW-1 and the cross-examination was completed on 20.12.2006. 4. At this stage, defendant moved an application for amendment before the trial court which was registered as paper no. 69-a against which the plaintiff-respondent no. 3 filed her objection. 5. After hearing the parties, the trial court/respondent no. 2 had rejected the same by order dated 16.11.2009. Aggrieved by the same, the petitioner filed a revision(Revision no. 87 of 2009) before the District Judge, Unnao, rejected by order dated 21.05.2010, hence, the present writ petition has been filed by the petitioners thereby challenging the above said orders. 6. Sri A.S. Chauhan, learned counsel for the petitioner while assailing the impugned orders which are under challenge in the present writ petition submits that the court below while passing the order thereby refusing the amendment would in fact lead to justice or lead to multiple litigation, as such the amendment as prayed on behalf of the petitioners in the written statement should be allowed. In support of his case, learned counsel for the petitioners rely on the following judgments :- 1.Usha Devi Vs. Rijwan Ahamad.1 2.Baldeo Singh & Others Vs. Manohar Singh & others.2 8. I have heard learned counsel for the petitioners and learned Standing Counsel who put in appearance on behalf of respondent nos. 1 & 2. 9. In support of his case, learned counsel for the petitioners rely on the following judgments :- 1.Usha Devi Vs. Rijwan Ahamad.1 2.Baldeo Singh & Others Vs. Manohar Singh & others.2 8. I have heard learned counsel for the petitioners and learned Standing Counsel who put in appearance on behalf of respondent nos. 1 & 2. 9. In order to resolve the controversy which is involved in the present case, it is necessary to state the following facts in brief. 10. The Order 6 Rule 17 CPC as exists before 1999 is quoted as under:- "Order 6 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 abovesaid provision was omitted by the Civil Procedure Code (Amendment) Act, 1999 and after amendment reads as follows: "16. Amendment of Order 6- in the First Schedule, in Order 6- *** ****** ****** ****** (iii) Rules 17 and 18 shall be omitted." The provision as it exists now after the Civil Procedure Code (Amendment) Act, 2002 Order 6 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 6 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 and Gurdial Singh V. Raj Kumar Aneja,2. Ltd. v. Jardine Skinner and Co.,1 and Gurdial Singh V. Raj Kumar Aneja,2. 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. But 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 6 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 been commenced, no application of pleading shall be allowed unless the above requirement is satisfied." 13. In the case of Vidyabai and others Vs. 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 6 Rule 17 of the Code, which reads as under:- "Provided that no application for amendment shall be allowed after the trail 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 therefore 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. The Court's jurisdiction to allow such an application is taken away unless the condition precedent therefore 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 6 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." 14. Further in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhawan Das (d) By L.Rs. 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 Vs. Kalgaonda Shidgonda Patil and others, 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 Vs. Prabhakar Mohanlal Kalwar,). 15. Thus in nutshell, the provisions of amendment of pleading as provided under Order 6 Rule 17 CPC can be summarized and crystallized as exists today, is as under:- "Order 6 Rule 17 of the Code deals with amendment of pleadings . By Amendment Act 46 of 1999, this provision was deleted . Prabhakar Mohanlal Kalwar,). 15. Thus in nutshell, the provisions of amendment of pleading as provided under Order 6 Rule 17 CPC can be summarized and crystallized as exists today, is as under:- "Order 6 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. 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." 16. In the case of Raj Kumar Gurwara (Dead) through LRS. Vs. S.K. Sarwagi and Company Private Limited and Another Hon'ble Supreme Court in paragraph 12, 13 and 18 as held as under:- "Para-12:- In order to consider whether the appellant plaintiff has made out case for amendment of his plaint, it is useful to refer Order 6 Rule 17 CPC which reads as under:- "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. 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 mater before the commencement of trial." The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein. However, this Rule is subject to proviso appended therein. The said Rule with proviso again substituted by Act 22 of 2002 with effect from 1-7.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial. "Para--13-- To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso. "Para - 18-- Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even duly considered by the High Court and rightly set aside the order dated 10.03.2004 of the Additional District Judge." 17. In the present case, while passing the impugned judgment dated 21.05.2010 in Revision No. 87 of 2009 (Ram Babu and others Vs. Smt. Ramdevi Alias Chandra Kala), the revisional court has given the following findings :- "The learned counsel for plaintiff/respondent has argued that plaintiff's evidence is likely to conclude after examination of Hand Writing & Finger Prints Expert. The case has commenced much earlier after framing of issues in 2003 and recording of evidence of P.W.1 in 2006. The amendment is malafide which has been moved in order to just delay final disposal of suit, so that decree for cancellation of sale deed in question may be avoided. The learned senior counsel for defendants very well knew that since their names were not mutated over the land in question till the institution of suit, and were mutated only on 24.06.2002 during pending suit they pleaded all the facts in para 16 of written statement but did not plead lack of jurisdiction of Civil Court or bar of Section 331 of U.P.Z.A. & L.R. Act. If in the garb of legal pleas the amendment is permitted, the defendants will press for issue on the point and its preliminary disposal and on disposal in negative as per legal position they will carry on matter upto revision getting the trial stayed for indefinite period. In the case of Manni Lal Gupta Vs. Waqf Haji Inayat Hussain, the Hon'ble High Court Allahabad held that "amendment application moved in the garb of legal pleas with ulterior motive, which would cause injustice and prejudice to the other party may not be allowed and normally amendment cannot be allowed after the trial has commenced till the Court comes to the conclusion that inspite of due diligence the defendant could not have raised the matter before the commencement of the trial. In the case of Ajendra Prasad Vs. Swami Kesha, Hon'ble the Apex Court held that "Since there was nothing to show that despite due diligence matter could not be raised earlier granting of amendment after commencement of the trial would cause serious prejudice to the plaintiff. In view of the discussion made above, I have come to the conclusion that defendants/revisionists have failed to show that deemed amendment could not have been raised before commencement of trial inspite of due diligence and more over, they have failed to show that desired amendment is necessary for the purpose of determining real question in controversy between the parties. There is illegality,material irregularity or jurisdictional error in the impugned order refusing the amendment. The impugned order, if allowed to stand is not likely to cause irreparable injury to the defendants/revisionists or cause failure of justice. Within the provisions of Order VI Rule 17 C.P.C. There is no sufficient ground to interfere with impugned order or set it aside. The revision has no force and is liable to be dismissed with costs." 18. For the foregoing reasons, the finding given by the court below while rejecting the petitioners' application for amendment of written statement after taking into consideration the law as laid down by the Hon'ble Apex Court are perfectly valid, thus I find no infirmity or illegality in the impugned orders passed by the respondent nos. 1 & 2. 19. No other point has been pressed by the learned counsel for the petitioner. 20. Accordingly, the writ petition lacks merit and is dismissed. 21. No order as to costs. Petition Dismissed.