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2012 DIGILAW 273 (BOM)

Dela Gurudal Vanjari v. Uddhal Govardhan Rathod

2012-02-07

R.M.BORDE

body2012
Judgment :- 1. Heard learned Counsel for respective parties. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2. An application tendered by the petitioner – original plaintiff seeking amendment to the plaint has been turned down by the trial Court for the reason that the application is tendered belatedly. 3. Suit is presented by the plaintiff, in the year 2005, initially seeking a declaration that the mutation entry recorded in the revenue record is illegal and for a decree of injunction. It is the contention of the petitioner that application Exhibit-6 presented by the petitioner claiming an order of temporary injunction against the defendant was turned down by the trial Court and thereafter the defendant has forcibly assumed possession over the disputed property. The plaintiff, as such, seeks amendment and claims recovery of possession. The plaintiff also seeks to impeach the transaction dated 12.02.1999 allegedly entered into between the plaintiff and defendant. Plaintiff wants to contend that the transaction entered into between the parties is nominal one and by way of loan transaction and was not to be acted upon. 4. The application was opposed on the ground that the relief sought in respect of the document executed between the parties on 12.02.1999 would be barred by limitation and secondly there is absolutely no reason recorded in the application as to why the application is tendered at belated stage. It is also contended by the Respondent-defendant that issues in the matter are framed and the trial is deemed to have been commenced after framing of issues and in view of proviso to Rule 17 Order 6 of the Code of Civil Procedure, it would be impermissible to permit such amendment. It is also contended that proposed amendment would change nature of the suit. 5. It is contended in the application tendered by the petitioner – original plaintiff seeking amendment to the plaint that after decision on application at Exhibit-6 by the trial Court declining to grant injunction in his favour, the defendant has forcibly taken over possession of the disputed property. The subsequent event in respect of dispossession of the plaintiff can be brought to the notice of the Court and relief can be sought in that regard. The subsequent event in respect of dispossession of the plaintiff can be brought to the notice of the Court and relief can be sought in that regard. The alleged dispossession of the plaintiff has occurred during pendency of the suit and as such, the plaintiff can surely make grievance in that regard by seeking amendment to the pleadings. The plaintiff is also seeking cancellation of transaction entered into between the parties on 12.02.1999 and is seeking relief of declaration to the effect that the transaction dated 12.02.1999 is nominal one and same be cancelled. 6. Learned Counsel appearing for the Respondent-original defendant contends that relief in respect of declaration as well as cancellation of the document dated 12.02.1999 sought for by the plaintiff would defeat defence of limitation available to the defendant. The relief claimed by virtue of proposed amendment is clearly barred by time. It is also contended that there would be substantial change in the nature of the suit as such prayer for amendment has been rightly turned down by the trial Court. 7. I have perused the application as well as impugned order passed by the trial Court. So far as aspect regarding dispossession of the plaintiff during continuance of the proceedings is concerned, the plaintiff would be justified in seeking amendment and also claiming relief in respect of recovery of possession. So far as objection raised by the defendant that the amendment, as requested by the plaintiff, relating to nominal nature of the document and for a declaration that the document executed on 12.02.1999, be declared as sham, bogus and nominal and for cancellation of such document, would be barred by limitation. The proposed amendment would also take away right of the defendant to raise defence in respect of bar of limitation. Another objection raised by the defendant is in respect of belated tendering of application by the plaintiff. It is contended that the application seeking amendment shall not be permitted after commencement of the trial. 8. Useful reference can be made to a judgment of the Apex Court in the matter of Baldev Singh and others Vs. Another objection raised by the defendant is in respect of belated tendering of application by the plaintiff. It is contended that the application seeking amendment shall not be permitted after commencement of the trial. 8. Useful reference can be made to a judgment of the Apex Court in the matter of Baldev Singh and others Vs. Manohar Singh & another, reported in 2006 (5) Mh.L.J. 634, wherein, it has been observed by the Apex Court, thus: “Proviso to Rule 17 of Order 6 of the Code of Civil Procedure provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. The commencement of the trial as used in Proviso to Rule 17 of Order 6 in the Code must be understood in the limited sense as meaning final hearing of the suit, examination of witnesses and filing of documents and addressing of arguments. 9. Learned Counsel appearing for the Respondent-original defendant has invited my attention to the judgment of the Apex Court in the matter of Vidyabai& others Vs. Padmalatha & another, reported in 2009 (4) Mh.L.J. 30, and contended that the trial shall be deemed to have been commenced after issues in the matter have been framed. In the instant matter, issues have been framed and as such, trial shall have to be deemed to have commenced in view of proviso to Rule 17 Order 6 of the Code of Civil Procedure. 10. A reference can be made to a judgment of the Apex Court in the matter of Surender Kumar Sharma Vs. Makhan Singh, reported in 2009 (10) SCC 626 . It is observed by the Apex Court that the question needs to be decided while permitting amendment is whether by allowing the amendment, the real controversy between the parties may be resolved. The trial Court has rejected the application for amendment on the ground that the application is presented at a belated stage. The Apex Court has observed that the prayer for amendment, even if it was belated, can be allowed if such amendment is necessary to set at rest real controversy between the parties. In paragraph 7 of the judgment, it is observed thus: “As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. The Apex Court has observed that the prayer for amendment, even if it was belated, can be allowed if such amendment is necessary to set at rest real controversy between the parties. In paragraph 7 of the judgment, it is observed thus: “As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. The prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. (See B.K.N. Pillai V. P. Pillai and another [ AIR 2000 SC 614 at Page 616]. Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.” 11. Similar issue had arisen for consideration before the Apex Court in the matter of State of Madhya Pradesh Vs. Union of India & another, reported in 2011 (9) Scale 6. It is observed by the Apex Court that the only limitation for refusing to permit the amendment would be as to whether in spite of due diligence, the party could not have raised the matter. Union of India & another, reported in 2011 (9) Scale 6. It is observed by the Apex Court that the only limitation for refusing to permit the amendment would be as to whether in spite of due diligence, the party could not have raised the matter. In paragraph 8 of the judgment, the Apex Court has observed thus: “In order to consider the claim of the plaintiff and the opposition of the defendants, it is desirable to refer the relevant provisions. Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short `the Code) enables the parties to make amendment of the plaint 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 matter before the commencement of the trial. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again 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 at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.” 12. It is observed in the said paragraph that the Court, while deciding such prayers, should not adopt a hyper-technical approach and liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 13. In this context, reliance can be placed on the judgment of the Apex Court in the matter of RevajeetuBuilders & Developers Vs. Narayanaswamy & Sons and others, reported in 2009 (6) All M.R. 986. In paragraph 67 of the judgment, the Apex Court has observed thus: “67 On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” The proposed amendment does not fundamentally change nature of the suit. The application tendered by the plaintiff appears to be bona fide and permitting amendment would certainly curtail multiplicity of litigation. The amendment sought is necessary for proper adjudication of controversy between parties and as such should have been permitted. 14. In the instant matter, considering the facts and circumstances of the case, I am of the view that the amendment needs to be permitted to avoid multiplicity of the litigation. The plaintiff is an agriculturist and hails from rural area and cannot be said to be conversant with procedural intricacies. 14. In the instant matter, considering the facts and circumstances of the case, I am of the view that the amendment needs to be permitted to avoid multiplicity of the litigation. The plaintiff is an agriculturist and hails from rural area and cannot be said to be conversant with procedural intricacies. It also cannot be controverted that some part of the proposed amendment relates to the events which occurred during pendency of the litigation. The trial Court was, therefore, expected to adopt liberal approach in such matters. 15. So far as the objection raised by the defendant for consideration of prayer put forth by way of amendment relating to cancellation of transaction dated 12.02.1999 is concerned, appropriate precaution can be taken so as to save entitlement of the Respondent – original defendant to raise defence of limitation. Reference can be made to a judgment of the Apex Court in the matter of Ragu Thilak D. John Vs. S. Rayappan and others, reported in 2001 (2) SCC 472 , wherein the Apex Court has observed thus: “The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea is that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed.” 16. The interest of the defendant for raising the plea of limitation can be safeguarded by directing the trial Court to consider the issue of limitation that would be raised by the defendant. It is also made clear that the amendment, as proposed by the plaintiff, shall not relate back to the date of the suit and shall be deemed to have been incorporated in plaint on the date of presentation of application under Order 6 Rule 17 of the Code of Civil Procedure. 17. For the reasons recorded above, the impugned order dated 02.08.2011, passed by Civil Judge, Junior Division, Parola, below Exhibit-30 in R.C.S. NO.22/2005, is quashed and set aside. The application tendered by the petitioner – original plaintiff at Exhibit-30 seeking amendment to the plaint shall be deemed to have been allowed. 18. Rule is accordingly made absolute. Considering the facts and circumstances of the case, plaintiff is directed to bear his own costs and pay costs of Rs.2000/- (Rs. The application tendered by the petitioner – original plaintiff at Exhibit-30 seeking amendment to the plaint shall be deemed to have been allowed. 18. Rule is accordingly made absolute. Considering the facts and circumstances of the case, plaintiff is directed to bear his own costs and pay costs of Rs.2000/- (Rs. Two thousand) to the defendant. The amount of costs shall be deposited before the trial Court within six weeks from today.