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2014 DIGILAW 1273 (ALL)

Siya Ram v. Sheetla Prasad

2014-04-21

ANIL KUMAR

body2014
JUDGMENT Anil Kumar,J.: - Heard lShri Mukesh Saxena, earned counsel for the petitioners and perused the record. 2. Facts in brief of the present case are that initially, petitioners filed a sit for permanent injunction registered as Regular Suit No.560 of 1999, dismissed by judgment and decree dated 17.11.2012. 3. Aggrieved by the said facts, petitioners filed an appeal bearing Civil Appeal No.202 of 2012 (Siya Ram and others vs. Sheetala Prasad and others). During the pendency of the said appeal, an amendment application has been moved by the petitioners to which objection has been filed by the respondents. 4. By order dated 10.03.2014, the appellate court had dismissed the amendment application. The said amendment application has been challenged by the petitioners by filing Civil Revision No.35 of 2014, dismissed by order dated 3.4.2014 with the following direction: - "The answer to the said question finds place in Full Bench Decision given by this Court in the case of Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad and others, AIR 1991 All 114 , where it has been held that an order passed in an appeal is not revisionable. Thus, keeping in view the abovesaid position of law as laid down by a Full Bench of this court in the case of Ganga Saran (Supra), the present revision filed under Section 151 C.P.C. is not maintainable and the same is dismissed. However, as prayed, the revisionists-plaintiffs are at liberty to approach appropriate forum for redressal of their grievances." 5. Now by means of the present writ petition, the petitioners have challenged the impugned order dated 10.03.2014 passed by Additional District Judge, Court No.9, Faizabad thereby rejecting the petitioners' amendment application. 6. Learned counsel for the petitioners submits that the learned appellate court ignored the elasticity of the provisions of order VI rule 17 while passing the impugned order and illegally held that judgment has already been passed on the pleadings of the petitioners which is under challenge before the appellate court. 7. 6. Learned counsel for the petitioners submits that the learned appellate court ignored the elasticity of the provisions of order VI rule 17 while passing the impugned order and illegally held that judgment has already been passed on the pleadings of the petitioners which is under challenge before the appellate court. 7. He also submits that Gata number was sought to be incorporated in the plaint so far as the property in question is concerned but the learned appellate court failed to consider the very material fact which is necessary to be incorporated and which will also not change the nature of the suit but the learned appellate court in the impugned order held that the nature of suit is being changed. 8. He further submits that the provisions of order VI rule 17 C.P.C. has a vide scope for determining the real controversy in between the parties and also for reaching the court at the correct conclusion for the pronouncement of the judgment and moreover no prejudice was going to be caused to the respondents in case the amendment application is allowed. 9. I have heard learned counsel for the petitioners and gone through the record. 10. In order to decide the said controversy , it is necessary to state the following facts in brief. Order 6 Rule 17 C.P.C. 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 aforesaid provision was omitted by the Civil Procedure Code (Amendment) Act, 1999 Section 16 of the Amendment Act reads as follows: "16. Amendment of Order 6- in the First Schedule, in Order 6- *** ****** ****** ****** (iii) Rules 17 and 18 shall be omitted." 11. 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." 11. 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 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." 12. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC ( Amendment ) Act 2002. 13. It is the proviso which falls for consideration." 12. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC ( Amendment ) Act 2002. 13. 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 commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amendment of Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic-Rule) 17, as it existed prior to the amendment , was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by the Civil Procedure Code ( Amendment) Act , 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and manifests the absence of due diligence on the part of the appellants dis-entitling them to relief. 14. In the case of Vidyabai and others Vs. Padmalatha and another (2009) 2 SCC 409 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. 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 plain." 15. Further in the case of North Eastern Railway Administration, Gorakhpur Vs. North Eastern Railway Administration, Gorakhpur 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. 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 provided under Order 6 Rule 17 CPC as exits today can be summarized and crystallized as under: - "Order 6 Rule 17 of the Code deals with amendment of pleadings . Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166 : 1990 SCFBRC 134)". Thus in nutshell , the provisions of amendment of pleading provided under Order 6 Rule 17 CPC as exits today can be summarized and crystallized 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. Thus, in view of the above said facts, I do not find any good ground or reason to interfere in the instant matter in order to set aside the impugned order, under challenge in the present writ petition. 17. For the foregoing reasons, the writ petition lacks merit and is accordingly dismissed.