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2012 DIGILAW 224 (MP)

Pushpa Arora v. Anita Arora

2012-02-22

ALOK ARADHE

body2012
Judgment ( 1. ) SHRI A. P. Shroti, learned counsel for the petitioner. SHRI Sanjay Agrawal, learned counsel for the respondents. ( 2. ) WITH the consent of parties, the matter is heard finally. In this writ petition under Article 227 of the Constitution of India the petitioner has challenged the validity of the order dated 10-11-2011 by which the application filed by the petitioner for amendment of the plaint has been rejected. In order to appreciate the petitioner's challenge to the impugned order, few facts need mention, which are state infra. ( 3. ) THE petitioner has filed a suit seeking relief of partition. THE claim in the suit is based on the ground that the petitioner is the mother of deceased Rajeev Arora and a category-I heir. In paragraph 1 of the plaint, it has been stated that defendants No. 1 and 2 i.e. the respondents are widow and son respectively of Late Rajeev Arora. Similarly, in paragraph 9 of the plaint it is stated that the petitioner as well as respondents No. 1 and 2 are entitled to one-third share each in the property of Late Rajeev Arora. Accordingly, the relief of partition of the property has been sought. THE respondents on receipt of summons of the suit have filed written statement in which the claim of the plaintiff that she is entitled to one-third share in the suit property has been admitted. THE respondents filed written statement before the trial Court on 4-11-2011. However, on that very day, the plaintiff filed an application for amendment of the plaint in which it was, inter alia, pleaded that the respondent No. 1 had settled her claim with the son of the petitioner and had separated from him. It was further submitted that respondent No. 1 had stopped using the surname "Arora". Accordingly, by the proposed amendment a plea was sought to be incorporated that respondent No. 1 is not entitled to any share in the property of Late Rajeev Arora. THE respondents filed reply to the aforesaid application for amendment. THE trial Court, however, vide impugned order dated 10-11-2011 rejected the application for amendment filed by the plaintiff on the ground that the application is not supported by documentary evidence. Accordingly, the application for amendment was rejected. In the aforesaid background the petitioner has approached this Court. ( 4. THE respondents filed reply to the aforesaid application for amendment. THE trial Court, however, vide impugned order dated 10-11-2011 rejected the application for amendment filed by the plaintiff on the ground that the application is not supported by documentary evidence. Accordingly, the application for amendment was rejected. In the aforesaid background the petitioner has approached this Court. ( 4. ) LEARNED counsel for the petitioner submitted that the application for amendment was made at the pre-trial stage. It was further submitted that while deciding the application for amendment the merits of the amendment cannot be considered by the trial Court. It was also submitted that the trial Court grossly erred in rejecting the application for amendment filed by the petitioner. In support of his submission, learned counsel for the petitioner has placed reliance on the decision of the Supreme Court reported in 2008(3) MPU (S.C.) 460 = (2008) 3 SCC 717 , Usha Devi vs. Rijwan Ahamad and others. On the other hand, learned counsel for the respondents submitted that the amendment of the plaint was filed with mala fide intention with a view to protract the trial. It was further submitted that marriage of the respondent No. 1 with Late Rajeev Arora was never dissolved and, therefore, the respondent No. 1 is the legally married wife of deceased Rajeev Arora and is entitled to one-third share in the suit property. It was further submitted that if the Court finds that the application for amendment is mala fide, same may be rejected. The order passed by the trial Court is just and legal and does not call for any interference. ( 5. ) I have considered the submissions made on both sides. The Order 6, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. The application for amendment can be made at any stage of the proceedings by the parties to the suit. The application for amendment can be made before the trial is commenced or after the trial is commenced. The law relating to grant of amendment of pleading is well defined a catena of decisions of Supreme Court. The application for amendment can be made at any stage of the proceedings by the parties to the suit. The application for amendment can be made before the trial is commenced or after the trial is commenced. The law relating to grant of amendment of pleading is well defined a catena of decisions of Supreme Court. In Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil, AIR 1957 SC 363 it has been held by the Supreme Court that all amendments ought to have been allowed which satisfy two conditions, namely, of not working injustice to the other side and of being necessary for the purpose of determining the real questions in controversy between the parties. In Savithri Atnma vs. Aratha Karthy, AIR 1983 SC 319 it has been held that test for allowing the amendment is to find out whether the proposed amendment works in serious injustice to the other side. Similarly, in B. K. Narayana Pillai vs. Parameswaran Pillai, (2000) 1 SCC 712 it has been held that though it is true that amendment cannot be claimed as a matter of right, however, it is equally true that Courts while deciding the prayer for amendment should not adopt hyper-technical approach. The liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. It has further been held that amendments in the pleadings to avoid uncalled for multiplicity of litigation should be allowed. It has also been held that a party cannot be allowed by way of amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred. However, the power of the Court to deal with the prayer for amendment if the trial is commenced is has been circumscribed by an amendment in the Code of Civil Procedure (Amendment) Act. The proviso to Order 6, Rule 17 of the Code provides 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, party could not have raised the matter before the commencement of trial. , ( 6. ) THE amended provisions of the Code of Civil Procedure have been considered by the Supreme Court in Salem Advocate Bar Association, T. N. vs. Union of India, (2005) 6 SCC 344 . , ( 6. ) THE amended provisions of the Code of Civil Procedure have been considered by the Supreme Court in Salem Advocate Bar Association, T. N. vs. Union of India, (2005) 6 SCC 344 . THE Supreme Court in Chander Kanta Bansal vs. Rajinder Singh Anand, 2008(4) MPLJ (S.C.) 269 = (2008) 5 SCC 117 has held that the delayed amendment which appears to be afterthought should not be allowed. However, in deserving cases the Court can allow even a belated application for amendment, if other side can be compensated in terms of the cost. In Usha Devi (supra) it has been held that merits of amendment is not the relevant criteria while deciding the application for amendment. In Rajkumar Gurawara (Dead) through LRs. vs. S. K. Sarwagi and Company Pvt. Ltd. and another, (2008) 14 SCC 364 it has been held that just and proper amendment can be introduced at any stage for the purpose of determining the real controversy involved in the suit. In South Konkan Distilleries and another vs. Prabhakar Gajanan Naik and others, (2008) 14 SCC 632 it has been held that if the application for amendment is within limitation or there is an arguable case with regard to the question of limitation, the same should be allowed. However, time barred amendment should not be allowed. In Rajkumar Gurawara (supra) (2008) 14 SCC 364 the Supreme Court while drawing distinction between the pre trial and post trial amendment has further held that greater degree of prejudice is caused by amendments which are sought after commencement of the trial. It has further been held that prejudice likely to be caused depends upon the procedural stage at which the amendment is sought. It has been reiterated that it is a settled law that the grant of application for amendment shall 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; and (iii) when allowing amendment application defeats the law of limitation. THE basic principles with regard to dealing with the application for amendment have been stated by the Supreme Court in Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others, (2009) 10 SCC 84 . THE basic principles with regard to dealing with the application for amendment have been stated by the Supreme Court in Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others, (2009) 10 SCC 84 . In view of the well settled position dealing with the prayer for amendment of the pleadings the following important factors are required to be borne in mind by the Court dealing the application for amendment:- (i) Whether the amendment is necessary for proper and complete adjudication of the controversy involved in the suit. (ii) Whether the application has been made bona fide or with mala fide intention to protract the proceedings. (iii) Whether the proposed amendment, if allowed, would cause any prejudice to either side which cannot be compensated in terms of money. (iv) Whether by the proposed amendment a party is setting up a new case or cause of action which changes the nature and character of the case. (v) THE application for amendment should not be rejected merely on the ground that delay alone, if the other side can be compensated in terms of cost. (vi) THE amendment which is barred by limitation should not be allowed. (vii) In case of post trial amendment, the Court has to come to the conclusion that in spite of due diligence party could not have raised the matter before the commencement of the trial. I may hasten to add here that the aforesaid factors are only illustrative and not exhaustive. The trial Court while passing the impugned order has failed to take into account the basic principles which are to be kept in mind while deciding the application for amendment. ( 7. ) FOR the aforementioned reasons, the impugned order cannot be sustained in the eye of law. The same is hereby quashed. The trial Court is directed to decide the application preferred by the petitioner afresh by a speaking order by taking into account the well settled legal principles governing grant of amendment. Accordingly, the writ petition is disposed of. C.C. as per rules. Order accordingly.