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2014 DIGILAW 452 (MP)

Paraschand v. Rao Rajendra Singh

2014-04-23

S.C.SHARMA

body2014
Judgment: S.C. Sharma, J. 1. The present writ petition has been filed under Article 227 of the Constitution of India against the order dated 19-2-2014 passed in COS No. 15-A/2012. By the aforesaid order, the trial Court has allowed the application for amendment preferred under Order 6, Rule 17 of Civil Procedure Code. The contention of the learned counsel for the petitioners is that the trial Court has erred in law and in fact in allowing the amendment application in spite of the fact that the trial Court has arrived at a conclusion that the plaintiff was having the knowledge of the facts which were mentioned in the amendment application and the plaintiff could have raised the matter before commencement of trial. Learned counsel for the petitioners has prayed for quashment of the aforesaid order. 2. On the other hand, learned Sr. Counsel appearing for the respondent has argued before this Court that the application for amendment has rightly been allowed by the trial Court, as in order to decide the controversy, the amendment was necessary. 3. Learned counsel for the parties have placed reliance upon a judgment delivered by the Apex Court in the case of Rajkumar Gurawara (Dead) Through L.Rs. v. S.K. Sarwagi and Company Private Ltd. and another, reported in (2008) 14 SCC 364 and have also placed reliance upon a judgment delivered by the Apex Court in the case of Usha Devi v. Rijwan Ahmad and ors., reported in 2008(3) MPLJ (S.C.) 460 : AIR 2008 SC 1147 . 4. This Court has carefully gone through the aforesaid judgments as well as the Order 6, Rule 17 of Code of Civil Procedure, 1908. Order 6, Rule 17 of Code of Civil Procedure, 1908 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." 5. The trial Court in paragraph 18 of the impugned order has held as under:-- The aforesaid findings of the trial Court makes it very clear that the plaintiff was aware of the facts which he has mentioned in the amendment application and has not explained the delay and the reasons for not incorporating the same fact in his plaint and therefore, in light of the judgment delivered by the Apex Court in the aforesaid case and also keeping in view the Proviso to Order 6, Rule 17 Code of Civil Procedure, 1908, this Court is of the considered opinion that the order allowing the application for amendment deserves to be quashed. The Apex Court in the case of Rajkumar Gurawara (supra) in paragraphs 12, 13 and 18 has held as under:-- "12. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI, Rule 17 Civil Procedure Code 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 first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 1-7-2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the Court satisfies their explanation, amendment can be allowed even after commencement of the trial. 13. However, if the parties to the proceedings able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the Court satisfies their explanation, amendment can be allowed even after commencement of the trial. 13. To put it clear, Order VI, Rule 17, Civil Procedure Code confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. 18. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of Government Orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument cannot be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time." In light of the aforesaid judgment and keeping in view the Proviso to Order 6, Rule 17 Code of Civil Procedure, 1908, the impugned order passed by the trial Court is hereby set aside. The writ petition stands allowed. No order as to costs.