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2015 DIGILAW 514 (ORI)

Babuli Khuntia v. Ram Abtar Modi

2015-08-28

A.K.RATH

body2015
JUDGMENT : A.K. Rath, J. By this application under Article 227 of the Constitution, the petitioner seeks to quash the order dated 22.12.2007 passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack in C.S. No.301 of 2003. By the said order, learned trial court rejected the application for amendment of plaint under Order 6 Rule 17, C.P.C. 2. The petitioner as the plaintiff laid a suit for declaration of right, title and interest, confirmation of possession and perpetual injunction restraining the defendants not to disturb the possession of the plaintiff in the court of the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack, which is registered as C.S. No.301 of 2003. The case of the plaintiff is that the suit schedule-A property was the anabadi land of ex-landlord Late Motilal Pandit. The mother of the plaintiff Late Jharana Khuntia with oral permission of the ex-intermediary was in cultivating possession of ‘A’ schedule land through her husband Late Fakir Khuntia. On being approached by said Jharana, ex-landlord executed an unregistered permanent lease deed for agricultural and horticultural purposes by accepting salami. She was also recognized as a tenant under the ex-intermediary, paid rent to the ex-landlord for several years and obtained rent receipts. During vesting of estate, the agent of the ex-landlord demanded illegal gratification for furnishing rent roll in respect of schedule-A property. Rent roll was not submitted since she did not succumb to the demand. The mother of the plaintiff was utilizing the above mentioned leasehold land for agricultural and horticultural purposes with the help of her husband and in course of time constructed a residential house on and over a portion of the said property and resided therein. While the matter stood thus, she learnt that the defendant had managed to get his name recorded in respect of the suit property in settlement record of rights. Fakir Khuntia expired in the year 1998. The lease deed in question was in custody of Late Fakir Khuntia and could not be produced before any authority. The defendant No.1 has never possessed the suit schedule land. Taking the advantage of wrong and fraudulent entry, he threatened to dispose the plaintiff forcibly from the suit schedule-A property. 3. Pursuant to issuance of summons, the defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. The defendant No.1 has never possessed the suit schedule land. Taking the advantage of wrong and fraudulent entry, he threatened to dispose the plaintiff forcibly from the suit schedule-A property. 3. Pursuant to issuance of summons, the defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. He neither admits that the plaintiff is the son of Fakir Khuntia nor Jharana Dei was the wife of Fakir Khuntia. He also did not admit the genuineness of the unregistered lease deed. It is stated that the adjoining west of the suit land, Hal Plot No.2092 situates. The same belongs to Cuttack Municipality. Rabindra Khuntia and Chhabindra Khuntia forcibly raised a hut over the said plot in the year 1988. They filed T.S. No.49 of 1997 for declaration of right, title and interest through their wives. It is further stated that the suit schedule property along with other adjacent plots was acquired by his father from the Pandit’s Estate by means of registered Permanent Lease deed dated 7.1.1941. 4. While the matter stood thus, after closure of evidence, the plaintiff filed an application for amendment of the plaint on the ground that while preparing for argument it came to the notice that though the plaintiff has alleged about the illegalities by the settlement authorities, but has not furnished the detail particulars of the same. In the meantime, the plaintiff had collected the certified copies of Yadast and other records from the settlement authority. It was found that the fraud was practised by the defendants at the time of preparation of record. The same could not be incorporated in the plaint in the absence of the documents. The application was objected to by the defendant no.1 on the ground that the application for amendment was filed at the belated stage and in the event the same is allowed, it will lead to de novo trial of the suit. By order dated 22.12.2007, learned trial court rejected the application. 5. Heard Mr. B.N. Bhuyan, learned counsel for the petitioner and Mr. D.P. Mohanty, learned counsel for the opposite party no.1. None appears for the opposite party nos.2 and 3. 6. Mr. By order dated 22.12.2007, learned trial court rejected the application. 5. Heard Mr. B.N. Bhuyan, learned counsel for the petitioner and Mr. D.P. Mohanty, learned counsel for the opposite party no.1. None appears for the opposite party nos.2 and 3. 6. Mr. Bhuyan, learned counsel for the petitioner submitted that the application for amendment of the plaint can be filed at any stage of the suit under Section 153 C.P.C. Further the proposed amendment was filed basing on the documents of settlement authorities, which are public documents. The proposed amendment is formal in nature and will not change the nature and character of the suit. Thus the learned trial court has committed a manifest illegality in rejecting the application for amendment on the ground that the same is filed at a belated stage. 7. Per contra Mr. Mohanty, learned counsel for the opposite party no.1 submitted that the proposed amendment was filed after closure of evidence to prolong the litigation. The proposed amendment is not at all necessary for proper adjudication of the matter between the parties. In the event the same is allowed, the defendants will put to untoward hardship. He cited the decisions of the apex Court in the case of Rameshkumar Agarwal v. Rajmala Exports Pvt. Ltd. and others, AIR 2012 SC 1887 and J. Samuel and others v. Gattu Mahesh and others, 2012 AIR SCW 1035. 8. Order 6 Rule 17 of the C.P.C. provides for amendment of pleadings. The same is quoted hereunder:- “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.” 9. In Rameshkumar Agarwal (supra), the respondent no.1-Company filed a suit for specific performance of contract before the Bombay High Court alleging that the appellant had agreed to sell his 50% share to the Company for a consideration of Rs.1,85,00,000/- and also alleged that the appellant ensured that respondent no.4-the brother of the appellant would sell his 50% undivided share to the Company for Rs.3,00,00,000/- and represented him as an agent of respondent no.4. On 20.8.2008, respondent no.1-Company took out Chamber Summons No.1233 of 2008 in Suit No.2374 of 2007 with a prayer to amend the plaint by impleading other parties. The appellant opposed the same. Learned Single Judge partly allowed the application. Against the said order, the appellant preferred Appeal No.40 of 2009 before the Division Bench. The Division Bench dismissed the appeal, whereafter SLP was filed before the apex Court. The apex Court held that 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. 10. In J. Samuel and others (supra), in a suit for specific performance of agreement, the plaintiffs filed an application for amendment of the plaint to incorporate specific pleading in compliance of Section 16(c) of the Specific Relief Act that they were ready and willing to perform the agreement and ready with the balance amount as per the agreement. The only reason given by the plaintiffs praying for amendment and inclusion of the above averment in the plaint was “type mistake”. Learned trial court dismissed the application for amendment. Aggrieved by, the plaintiffs approached the High Court by filing Civil Revision No.5162 of 2010. The High Court allowed the amendment sought for by the plaintiffs. The defendant-respondents preferred an appeal before the apex Court. Learned trial court dismissed the application for amendment. Aggrieved by, the plaintiffs approached the High Court by filing Civil Revision No.5162 of 2010. The High Court allowed the amendment sought for by the plaintiffs. The defendant-respondents preferred an appeal before the apex Court. The question arose before the apex Court as to whether the High Court was right in allowing the application filed under Order VI Rule 17 CPC for amendment of the plaint which was filed after conclusion of trial and reserving the matter for orders. The apex Court came to hold that the claim of typographical error is baseless and cannot be accepted. It was further held that the primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaint. The Court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no justice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interest of the parties in pursuit of doing justice, the proviso has been added which clearly states 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. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term ‘Due diligence’ is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term ‘Due diligence’ is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term “due diligence” determines the scope of a party’s constructive knowledge, claim and is very critical to the outcome of the suit. It was further held that there was a clear lack of ‘due diligence’ and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. 11. The object of the rule is that the Court must try the merit of the cases that comes before it and allow such amendments that may be necessary for determining the real controversy between the parties provided that the same does not cause injustice or prejudice to other side. 12. In Surender Kumar Sharma v. Makhan Singh, 2009 AIR SCW 6131, the apex Court held that even if the prayer for amendment was a belated one, 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. Under Order 6 Rule 17 of the C.P.C., 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. 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. The Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. 13. In Revajeetu Builders and Developers v. Narayanaswamy and sons and others, (2009) 10 SCC 84 , on a survey of earlier decisions, the apex Court has succinctly stated that the factors to be taken into consideration while dealing with the application for amendment. The apex Court in paragraph-63 of the report held as follows:- “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 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 decline amendments 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.” 14. Thus merely an application for amendment is filed belatedly, the same cannot be refused if it is necessary for deciding the real controversy between the parties. The court must bear in mind the principles as laid down in Revajeetu Builders and Developers (supra). The court has wide powers and unfettered discretion to allow amendment of pleadings in such manner and on such terms as it appears to the court just and proper. The proposed amendment is sought to clarify an existing pleading and does not in substance add to or alter it. The court has wide powers and unfettered discretion to allow amendment of pleadings in such manner and on such terms as it appears to the court just and proper. The proposed amendment is sought to clarify an existing pleading and does not in substance add to or alter it. The basic structure of the suit will not be changed, nor the same will introduce a new case or new cause of action. 15. In the wake of the above, the order dated 22.12.2007 passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack in C.S. No. 301 of 2003 is hereby quashed. Accordingly, the application for amendment filed by the plaintiff is allowed subject to payment of cost of Rs.5,000/- to the counsel for the defendant no.1. The trial court is directed to conclude the hearing of the suit by end of January, 2016. The petition is allowed.