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2014 DIGILAW 483 (MP)

Jagdish Sharan v. Raghuveer Sharan

2014-04-29

SUJOY PAUL

body2014
Judgment: Impugning the order dated 04­03­2013 (Annexure P­1) passed in Civil Suit No.103­A/2010, this petition is filed under Article 227 of the Constitution. The Court below allowed the amendment application Annexure P­17, dated 04­09­2012 by the impugned order. 2. This matter has a chequred history. Petitioners­plaintiffs filed a suit for partition, declaration and permanent injunction (Annexure P­2). Respondent No.1­ defendant filed his written statement (Annexure P­3). Petitioners filed an application for amendment under Order 6 Rule 17 CPC due to death of plaintiff No.1 (Annexure P­4). By order dated 17­10­2011 (Anenxure P­5), the trial Court allowed the said amendment application and granted liberty to the other side to file consequential amendment, if required. Respondent No.1­defendant filed an application for amendment on 01­11­2011. By this application, he wanted to add certain paragraph in the written statement. It is contended by the petitioners that this amendment was not simply a consequential amendment. In addition to the grounds taken as consequential amendment, certain new lands were sought to be added which were in the name of certain other persons. The petitioners by reply dated 01­12­2011 (Annexure P­7), opposed the consequential amendment. The Court below by order dated 01­12­2011 rejected the consequential amendment of respondent No.1. This order is Annexure P­8. On 16­12­2011, respondent No.1­ defendant again preferred an application under Order 6 Rule 17 CPC, by including counter­claim in it and submitted before the Court. The petitioners­ plaintiffs, in turn, filed an application under Order 8 Rule 6(a) CPC, by praying that the properties included in the application of defendant preferred under Order 6 Rule 17 CPC are not of the plaintiffs and are of some other persons. This application of petitioners is filed as Annexure P­11. The defendant, in turn, filed his reply to the said application on 21­12­2011. The trial Court by order dated 03­01­2012 allowed the application of the petitioners aforesaid submitted under Order 8 Rule 6 (a) CPC. This order is Annexure P­13. 3. The respondent No.1­ defendant filed Writ Petition No.928/2012 challenging the order dated 01­12­2011 (Annexure P­8). This Court opined that the amendment, in whole, of respondent No.1 could not have been allowed treating it to be a consequential amendment. The amendment application dated 01­11­2011 (Annexure P­6) to the extent it was related to consequential amendment, was allowed. For rest of the portion, respondent No.1 was given liberty to file a fresh application before the Court below. This Court opined that the amendment, in whole, of respondent No.1 could not have been allowed treating it to be a consequential amendment. The amendment application dated 01­11­2011 (Annexure P­6) to the extent it was related to consequential amendment, was allowed. For rest of the portion, respondent No.1 was given liberty to file a fresh application before the Court below. 4. The respondent No.1­ defendant preferred another application under Order 6 Rule 17 CPC on 17­02­2012 (Annexure P­14). The petitioners filed their reply to the said application by Annexure P­15. This amendment application is rejected by order dated 05­03­2012 Annexure P­16 by the Court below. 5. The respondent No.1­ defendant again filed an application for amendment under Order 6 Rule 17 CPC on 04­09­2012 (Annexure P­17). The petitioners submitted their reply on 16­10­2012 (Annexure P­18). By impugned order, the Court below allowed the amendment application. 6. Shri Anubhav Jain, learned counsel for the petitioners by drawing attention of this Court to various orders passed by the Court below, submits that in various amendment applications respondent No.1 has raised the same pleadings. The said amendment applications were repeatedly rejected by the Court below. By adopting a linguistic engineering and by making the pleadings more precise same averments became subject matter of another amendment application Annexure P­17 dated 04­09­2012. Shri Jain, submits that the petitioners raised their objections in this regard in reply Annexure P­18. It was specifically prayed that similar amendment applications containing very same averments are already rejected by the Court below and, therefore, another application for the same subject is not tenable. Another submission of Shri Jain, is that respondent No.1, in his written statement, has admitted in paragraph 5 that certain pieces of land are ancestral property. By way of amendment, respondent No.1 has taken a 'U'turn, which is impermissible. The Court below has not considered the reply of the petitioners and mechanically allowed the amendment application, which is liable to be interfered with. 7. Shri Tapendra Sharma, learned counsel for the respondent No.1 supported the impugned order and submits that the order of Court below is neither without jurisdiction nor suffers from any other irregularity. Thus, no case for interference is made out by the petitioners. 8. I have heard learned counsel for the parties and perused the record. 9. 7. Shri Tapendra Sharma, learned counsel for the respondent No.1 supported the impugned order and submits that the order of Court below is neither without jurisdiction nor suffers from any other irregularity. Thus, no case for interference is made out by the petitioners. 8. I have heard learned counsel for the parties and perused the record. 9. In the aforesaid factual backdrop, it is clear that certain amendment applications filed by respondents No.1 were rejected by the Court below. For example, orders dated 01­12­2011 (Annexure P­8), dated 03­01­2012 (Annexure P­13) and dated 05­03­2012(Annexure P­16) may be seen. In paragraph 5 of the written statement, respondent No.1 has made certain averments whereas by way of amendment application Annexure P­17, he made certain averments with regard to the same land. It is noticed that the petitioners filed their specific reply Annexure P­18 and brought it to the notice of the Court that on earlier occasions amendment applications of respondent No.1 were disallowed and, therefore, another amendment application on the same subject, is not tenable. 10. The Court below allowed the amendment application by merely holding that the trial has not yet begun. Matter is at preliminary stage. The proposed amendment is necessary for lawful adjudication of the controversy and for this reason, amendment is allowed. 11. A plain reading of the order shows that objections raised by the petitioners were not dealt with. The Court below has not taken pains to see whether earlier amendment applications were containing similar pleadings nor the Court below has seen the impact of rejection of those amendment applications. The Court below has also not examined the averments of the written statement in juxta position to the pleadings sought to be introduced by way of amendment Annexure P­17. It needs to be done to ensure whether such amendment is permissible. The Court below was required to assign reasons as to why the defence taken by the petitioners in their reply Annexure P­18, is not trustworthy. In other words, the Court below was required to consider and deal with the reply and objections taken by the petitioners. This is trite that in administrative, quasi judicial and judicial proceedings, reasons must be assigned. Reasons are heart beats of conclusions. In absence of reasons, conclusions have no legs to stand. In other words, the Court below was required to consider and deal with the reply and objections taken by the petitioners. This is trite that in administrative, quasi judicial and judicial proceedings, reasons must be assigned. Reasons are heart beats of conclusions. In absence of reasons, conclusions have no legs to stand. The Apex Court emphasized the necessity to assign reasons in Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, in the following words:­ “(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi­judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi­judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision­maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision­making process as observing principles of natural justice by judicial, quasi­judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision­making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi­judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi­judicial authority is not candid enough about his/her decision­making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. (k) If a judge or a quasi­judicial authority is not candid enough about his/her decision­making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber­stamp reasons” is not to be equated with a valid decision­making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision­making not only makes the judges and decision­ makers less prone to errors but also makes them subject to broader scrutiny. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision­making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. 12. In the opinion of this Court, the impugned order passed by the Court below does not contain any reason. No reasons are assigned about the objections raised by the petitioners. In absence of reasons, the order becomes vulnerable. This amounts to procedural impropriety. Resultantly, the said order is set aside. The Court below is directed to hear the parties on application Annexure P­17 and deal with the aforesaid aspects and pass appropriate and reasoned order in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of case. 13. The petition is allowed, to the extend indicated above. No costs.