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2010 DIGILAW 3220 (ALL)

Muneshwar v. Special Judge, Barabanki

2010-10-19

ANIL KUMAR

body2010
Anil Kumar, J.:- Matter is taken in the revised cause list. 2. None present on behalf of the respondents. 3. Heard Sri Usman Siddiqui, learned counsel for the petitioners. 4. By means of present writ petition, the petitioners have challenged the order dated 01.07.1994 passed by the respondent no. 1(Special Judge,Barabanki) in Claim No. 87 of 1991(Shyamlal and others Vs. Muneshwar and others) thereby allowing the application for amendment moved on behalf of the claimant-respondent. 5. Facts of the present case are that on 21.03.1991 at about 12:00 noon, an accident took place due to rash and negligent driving of the Tractor (No.U.P.J.5863) in which one Sri Santosh son of Shyamlal in the village Jhanjhara, P.S. Kotwali, District Barabanki aged about 12 years had died. As a result of which a Claim Petition(numbered as 87 of 1991) under Section 166 read with Section 140 of Motor Vehicle Act has been moved by the claimants (Sri Shyamlal and Smt. Kudakka, parents of the deceased), before the Motor Accident Claims Tribunal/Special Judge, Barabanki. 6. During the pendency of the claim petition, the claimants moved an application for amendment of the claim petition (registered as Application No. Kh-20), the same was opposed by the petitioner-respondent and by order dated 01.07.1994, the respondent no. 1 has allowed the application for amendment of the claim petition, hence, the present writ petition has been filed by the petitioners before this Court challenging the order dated 01.07.1994 on the ground that the same is without jurisdiction and arbitrary in nature. 7. It is further submitted by the learned counsel for the petitioners that the amendment in question will change the nature of the case, as such the court below had committed a gross error and mistake while allowing the same and if the same is allowed the petitioners will not have a chance to rebut the said fact, so the order under challenge be set aside. 8. I have heard learned counsel for the parties and perused the record. 9. 8. I have heard learned counsel for the parties and perused the record. 9. So far as, the facts concerned, it is not disputed that due to rash and negligence of the Tractor the accident took place and one Sri Santosh son of Shyamlal in the village Jhanjhara, P.S. Kotwali, District Barabanki aged about 12 years had died and as a result of which a Claim Petition has been filed by the parents of the deceased (Santosh) for claiming compensation and during the pendency of the claim petition, an application for amendment has been moved which is contested by the petitioner who is respondent therein and thereafter hearing the parties, the same was allowed by the respondent no. 1 by order dated 01.07.1994. The Court below has given categorical finding of fact to the effect that the amendment application has not been given with any malafide intention nor the nature of the case has changed and taking into consideration the facts, allowed the application for the amendment. 10. In order to resolve the controversy which is involved in the present case, it is necessary to state the following facts in brief. 11. 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 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., AIR 1957 SC 357 : 1957 SCR 438 , SCR at 450 and Gurdial Singh V. Raj Kumar Aneja, (2002) 2 SCC 445 : AIR 2002 SC 1003 . 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 17 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." 12. In the case of Vidyabai and others Vs. It is the proviso which falls for consideration." 12. 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 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 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." 13. Further in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhawan Das (d) By L.Rs.2008 (3) ARC 911 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. 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, 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 Vs. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166 : 1990 SCFBRC 134)". 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." 14. In the case of Raj Kumar Gurwara (Dead) through LRS. Vs. S.K. Sarwagi and Company Private Limited and Another (2008) 14 SCC 364 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. Vs. S.K. Sarwagi and Company Private Limited and Another (2008) 14 SCC 364 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. 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. 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. 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." 15. In view of the above said facts, it is a settled proposition of law as laid down by the Hon'ble Apex Court that if the amendment neither changes the cause of action nor it introduces any new cause of action, the same should be allowed. 16. In the present case, the said two conditions does not exist, rather the respondent no. 1 while allowing the amendment application had given finding to the effect that the amendment which is sought to be brought on record by the claimant-respondent in the claim petition filed by them for compensation does not in any manner moved with malafide intention or changes the nature of the case. 17. Accordingly, I do not find any illegality or infirmity in the impugned order dated 01.07.1994 passed by the respondent no. 1(Special Judge,Barabanki) in Claim No. 87 of 1991(Shyamlal and others Vs. 17. Accordingly, I do not find any illegality or infirmity in the impugned order dated 01.07.1994 passed by the respondent no. 1(Special Judge,Barabanki) in Claim No. 87 of 1991(Shyamlal and others Vs. Muneshwar and others). 18. Further, so far as the plea raised by the learned counsel for the petitioner that if the amendment is allowed then it will cause prejudice to the case of the petitioner and he will have no opportunity to rebut the same is wholly misconceived as it will be open to him to raise the same when the matter in question is heard and decided by the court below (respondent no. 1) on merit. In his written statement and he can get the issue framed in that regard. 19. For the foregoing reasons, the present writ petition filed by the petitioners lacks merit and is dismissed. 20. No order as to costs