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2014 DIGILAW 328 (HP)

Kashetar Pal Singh v. Harpal Singh

2014-04-02

RAJIV SHARMA

body2014
JUDGMENT Rajiv Sharma, J. This petition is directed against the order dated 28.2.2014 passed by the Civil Judge (Senior Division), Court No.1, Amb, District Una in the application. 2. “Key facts” necessary for the adjudication of this petition are that petitioner-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) has filed a suit for permanent injunction restraining the respondent-defendant (hereinafter referred to as the “defendant” for convenience sake) from raising any sort of construction blocking the rainy as well as domestic flow of water over the portion A B C D E F G H as shown in the site plan. The suit was contested by the defendant. 3. Plaintiff filed an application for amendment of the plaint under order 6 rule 17 of the Code of Civil Procedure. The application was resisted by the defendant. Learned Civil Judge (Senior Division) rejected the application on 28.2.2014. Hence, the present application. 4. According to the plaintiff, defendant has obstructed portion shown with letters ‘O’ and ‘M’ reflected in red colour in the site plan by raising construction of a brick wall over the drain shown with marks A B C D during the pendency of the suit. Defendant has raised construction upon mark ‘O’ to the extent of 9 feet in height and mark ‘M’ to the extent of 6 feet in height. Defendant has totally blocked the drain. Defendant has denied construction of any brick wall on marks ‘O’ and ‘M’. 5. Civil suit was filed by the plaintiff in the year 2007. Issues were struck on 3.9.2009. Last opportunity was granted to the plaintiff to produce his PWs. Thereafter he has filed an application on 24.7.2013. He has not given the details when the alleged construction was made by the defendant on marks ‘O’ and ‘M’. Defendant has denied raising of construction. Plaintiff has not explained why the amendment was not sought before the commencement of trial despite due diligence. 6. Their Lordships of the Hon’ble Supreme Court in Vidyabai and others versus Padamlatha and another, (2009) 2 SCC 409 have held that order 6 rule 17 of the Code of Civil Procedure is couched in a mandatory form. Their Lordships have further held that the court must come to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. Their Lordships have further held that the court must come to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. Their Lordships have held as under: “10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI 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 conditions precedent therefor 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. 11. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to `commencement of proceeding'. 12. Although in a different context, a Three-Judge Bench of this Court in Union of India and Others v. Major General Madan Lal Yadav (Retd.) [ (1996) 4 SCC 127 ] took note of the dictionary meaning of the terms "trial" and "commence" to opine: 19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.” 7. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.” 7. Their Lordships of the Hon’ble Supreme Court in Revajeetu Builders and Developers versus Narayanaswamy and sons and others, (2009) 10 SCC 84 have culled out the following facts while dealing with application filed under order 6 rule 17 of the Code of Civil Procedure. Their Lordships have held as under: “63. 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 isbona 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 toinjustice 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 declineamendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.” 8. Their Lordships of the Hon’ble Supreme Court in State of Madhya Pradesh versus Union of India and another, (2011) 12 SCC 268 have held that when the 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. Their Lordships have held as under: “6. In view of the fact that at present we are concerned with I.A.No.4 of 2009 - application for amendment of plaint, there is no need to traverse all the factual details as stated in the plaint and written statement. Their Lordships have held as under: “6. In view of the fact that at present we are concerned with I.A.No.4 of 2009 - application for amendment of plaint, there is no need to traverse all the factual details as stated in the plaint and written statement. However, it is relevant to point out the reliefs prayed for by the plaintiff in the main suit which are as under: "(a) Call for the records relating to the impugned Notifications/Orders dated 02.11.2004 and 04.11.2004 and declare the same as null and void as the same is unconstitutional and in violation of Article 14 of the Constitution; (b) Direct 1st defendant to dissolve MPEB in consonance with other orders/directions dated 12.04.2001, 04.12.2001 and 23.05.2003 passed by the 1st defendant under Section 58(4) of MPRA; (c) Direct the 1st Defendant by way of mandatory injunction to perform its constitutional and the statutory duty to lay down proper criteria for apportionment of assets, rights and liabilities in accordance with law and to ensure equitable, just, fair and reasonable apportionment of assets, rights and liabilities amongst the successor Boards on the basis of revenue potential so as to avoid undue hardship and disadvantage to any of the successor Boards; and (d) Pass any other order and/or direction, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 7. In the present application, i.e., I.A. No.4 of 2009, the applicant-State of M.P. has prayed for amendment of the plaint by adding the following relief: "(b) to permit additional relief to be incorporated in the Plaint viz., declare Sections 58(3) and 58(4) of the Madhya Pradesh State Re-organisation Act, 2000 is being unconstitutional, arbitrary and violative of Article 14 of the Constitution" 8. 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. 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 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. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 9. 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. 9. Inasmuch as the plaintiff-State of Madhya Pradesh has approached this Court invoking the original jurisdiction under Article 131 of the Constitution of India, the Rules framed by this Court, i.e., The Supreme Court Rules, 1966 (in short `the Rules) have to be applied to the case on hand. Order XXVI speaks about "Pleadings Generally". Among various rules, we are concerned about Rule 8 which reads as under: "The Court may, at any stage of the proceedings, allow either party to amend his pleading in such manner and on such terms as may be just, but only such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties." The above provision, which is similar to Order VI Rule 17 of the Code prescribes that at any stage of the proceedings, the Court may allow either party to amend his pleadings. However, it must be established that the proposed amendment is necessary for the purpose of determining the real question in controversy between the parties. 10. This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows: (i) Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626 , at para 5: "5. As noted here-in-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. 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 laches in making the application for amendment cannot be a ground to refuse the amendment." (ii) North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, (2008) 8 SCC 511 , at para16: "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil 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 questions 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." (iii) Usha Devi v. Rijwan Ahamd and Others, (2008) 3 SCC 717 , at para 13: "13. Mr. Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05) "17. Mr. Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05) "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings." (iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385 , at paras 15 & 16: "15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties." (v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 , at para 63: "63. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties." (v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 , at para 63: "63. On critically analysing 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 declineamendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." The above principles make it clear that Courts have ample power to allow the application for amendment of the plaint. However, it must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties. We have already pointed out the relief prayed for in the plaint. According to the plaintiff-State of Madhya Pradesh, the Notifications/Orders dated 02.11.2004 and 04.11.2004 have to be declared null and void since the same are unconstitutional and in violation of Article 14 of the Constitution of India. The other relief, prayed for by the plaintiff, is to direct the Ist Defendant-Union of India to dissolve the MPEB in consonance with the orders/directions dated 12.04.2001, 04.12.2001 and 23.05.2003 passed by the Union of India under Section 58(4) of MPR Act. The other relief, prayed for by the plaintiff, is to direct the Ist Defendant-Union of India to dissolve the MPEB in consonance with the orders/directions dated 12.04.2001, 04.12.2001 and 23.05.2003 passed by the Union of India under Section 58(4) of MPR Act. In addition, the plaintiff-State of M.P. has also prayed for to direct the Union of India by way of mandatory injunction to perform its constitutional and statutory duty to lay down proper criteria for apportionment of assets, rights and liabilities in accordance with law and to ensure equitable, just, fair and reasonable apportionment of assets, rights and liabilities amongst the successor Boards on the basis of revenue potential so as to avoid undue hardship and disadvantage to any of the successor Boards.” 9. Their Lordships of the Hon’ble Supreme Court in J. Samuel and others vs Gattu Mahesh and others, (2012) 2 SCC 300 have held that there must be a reasonable cause for allowing amendment under order 6 rule 17 of the Code of Civil Procedure. Their Lordships have held as under: “16. As stated earlier, in the present case, the amendment application itself was filed only on 24.09.2010 after the arguments were completed and the matter was posted for judgment on 04.10.2010. On proper interpretation of proviso to Rule 17 of Order VI, the party has to satisfy the Court that he could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, proviso restricts that power once the trial has commenced. Unless the Court satisfies that there is a reasonable cause for allowing the amendment normally the court has to reject such request.” 10. Accordingly, in view of above discussion, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.