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2012 DIGILAW 412 (JHR)

Uma Devi v. Ram Kumar Mehta

2012-03-21

POONAM SRIVASTAV

body2012
Order 1. Heard Shri P.K. Prasad, Sr. counsel, assisted by Mr. Ayush Aditya, on behalf of the plaintiff-petitioner and Shri Rohit Roy, counsel on behalf of the respondents. 2. The entire controversy raised in the instant writ petition is regarding an order dated 14.07.2011 (Annexure3) passed by SubJudge VI, Hazaribagh in Title Suit No. 129 of 2007 (Uma Devi Vs. Ram Krishna Mehta & Ors.), rejecting the amendment application under Order VI Rule 17 C.P.C. 3. Submission of the learned counsel at the very outset is that the amendment is absolutely formal in nature and he undertakes that he will not adduce any evidence in support of the amendment, if it is allowed. Further submission is that the amendment application is only in the nature of clarifying/adding to the earlier statement made in the plaint whereas the objection of the counsel appearing on behalf of the contesting respondents is that no reason has been given as to why amendment was moved at such a belated stage and why the amendment sought to be introduced could not have been incorporated in the plaint itself. Evidently, it is not a fact which came to the knowledge of the plaintiff at a latter date which prevented him making the assertion at the stage of institution of the suit. 4. The court below, vide order dated 14.07.2011 has rejected the amendment application specifically on the ground that the plaintiff has failed to make any assertion that in spite of due diligence, party could not raise the matter at the stage of commencement of the trial and the proposed amendment is most essential to decide the real controversy between the parties. The amendment has been filed at a very belated stage and no reason has been attributed for such a long delay when the suit was at the stage of argument. 5. After hearing the respective claim of the parties, it is true that the proposed amendment was filed at a very belated stage and after the evidence was complete, therefore the conclusion of the court below is not incorrect and without any cogent reason, thus, cannot be said to be unjustified. However, the High Courts and the Apex Court have constantly ruled that the parties should be allowed to bring amendment at the very first instance so that the actual controversy may be thrashed out at the inspection of the suit. However, the High Courts and the Apex Court have constantly ruled that the parties should be allowed to bring amendment at the very first instance so that the actual controversy may be thrashed out at the inspection of the suit. However, the amendment is during continuation of the trial which is still continuing. 6. Reliance has been placed on behalf of the petitioner in the case of Andhra Bank Vs. ABN Amro Bank N.V. & Ors., (2007) 6 SCC 167 . The Apex Court in the said case allowed the amendment of written statement since it was only an additional ground of defence and no new case was set up. The other decision relied upon by the learned counsel is in the case of Surendra Kumar Sharma Vs. Makhan Singh, (2009) 10 SCC 626 . The view of the Apex Court was that just because the amendment of the plaint was at a belated stage, this alone cannot be made a ground for rejecting it. In this case also, the plaintiff has only tried to elucidate and clarify the assertions of the plaint by the proposed amendment which the court below has rejected. The Apex Court allowed the amendment of the plaint even at a very belated stage. The case of the plaintiff-petitioner is squarely covered by the aforesaid two decisions. 7. Learned counsel Shri Rohit Roy appearing on behalf of the respondents has cited another decision of the Apex Court to controvert the arguments of the learned counsel appearing on behalf of the petitioners, Raj Kumar Gurawara Vs. S.K. Sarwagi & Company Private Limited & Anr., (2008) 14 SCC 364. The Apex Court was of the view that the courts should not allow the amendment liberally, in case it would prejudice the other parties. The amendments after commencement of trial and specially, after completion of the evidence should be scrutinized and not allowed easily since the proceedings would be hampered on account of accepting the amendments as and when the party desires. The amendment should be accepted only if the parties to the proceedings are able to satisfy the court that inspite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation. 8. The amendment should be accepted only if the parties to the proceedings are able to satisfy the court that inspite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation. 8. The argument of the learned counsel on behalf of the respondents is that in the instant case, this aspect is completely lacking and, therefore, the amendment is liable to be rejected. 9. Having heard counsel for the parties and going through the two judgments as well as the record, it is evident that at the very outset, the plaintiff-petitioner has made a statement that the proposed amendment is only by way of an addition and clarification of the assertions already made in the plaint and it is not a case where new facts are incorporated and which requires additional or fresh evidence, the plaintiff will rely on the evidence already recorded. 10. In such circumstances, I am of the view that the amendment is liable to be allowed. However, it is made clear on the basis of an unequivocal affirmation by the learned counsel that no fresh evidence will be required. The defendants are permitted to file their objections to the amendment. The court below shall ensure that the proceedings are completed as expeditiously as possible. The arguments may be completed within a period of three months from the date amendment is accepted and the defendants are permitted to file their objections. 11. With the aforesaid observations/directions, the writ petition stands disposed of.