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2015 DIGILAW 52 (JK)

Sushil Rishi v. Vinod Rishi

2015-02-25

MOHAMMAD YAQOOB MIR

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JUDGMENT : Mohammad Yaqoob Mir, J.:- 1. Aggrieved by the order dated 5.11.2014 passed by the court of 2nd Additional District Judge, Jammu allowing application for amendment as was filed by the respondent-plaintiff, instant petition has been filed. The order being neither appealable nor amenable to Revisional jurisdiction in view of proviso to Section 115 Code of Civil Procedure. Therefore, petitioner seeks invocation of supervisory power under Section 104 of the J&K State Constitution. 2. The supervisory power is to be invoked so as to ensure that the Courts work within the bounds of the law. Such power is not to be exercised so as to be a substitute for Revisional power which Revisional power has been curtailed in terms of Proviso to Section 115 CPC. 3. Earlier, under Section 115 CPC, the Revisional power could be exercised relatable to all orders passed by the Subordinate courts, so as to check any type of miscarriage of justice, any illegality or irregularity in proceedings. Frequent invocation of Revisional power was noticed to be resulting in protraction in the suit proceedings, as a result, whereof, Section 115 CPC has been amended and the proviso has been incorporated providing for exercising the power of revision only vis-a-vis orders operation of which has terminated the suit or other proceedings or vis-a-vis the orders which if passed in favour of the aggrieved party would terminate the suit or other proceedings. 4. The amendment so incorporated to curtail the Revisional power cannot and is not to affect the superintendence and supervisory power of the Court nor the power exercisable under Section 103 of the State Constitution read with Article 226 of the Constitution of India and Section 104 of State Constitution read with Article 227 of the Constitution of India. But such power has to be exercised in a manner which may not have trappings of negating the operation of the proviso to Section 115 CPC. 5. Coming to the case in hand, what has happened is that the respondent No. 1 has filed suit for partition of House No. 575 and the land underneath measuring one kanal and one marla covered by survey No. 53 situated at Colonel Colony Opposite Jammu Airport, Jammu Cantt. 6. 5. Coming to the case in hand, what has happened is that the respondent No. 1 has filed suit for partition of House No. 575 and the land underneath measuring one kanal and one marla covered by survey No. 53 situated at Colonel Colony Opposite Jammu Airport, Jammu Cantt. 6. The petitioner and the respondents No. 2 to 5 (defendants) filed the written statement and raised a preliminary objection to the effect that the respondent No. 1 (plaintiff) with a design omitted to incorporate the entire assets and immovable properties of late Krishan Lal Rishi in the suit. 7. Out of issues framed, issue No. 5 has been treated as a preliminary issue which reads as under: "5. Whether the suit is not maintainable? If so, How? (OPD)". 8. Before the preliminary issue could be decided, the plaintiff filed an application under order 6 rule 17 CPC seeking amendment of the plaint which has been resisted by the defendants (petitioner and respondents No. 2 to 4). 9. Learned Trial Court has observed that (a) the proposed amendment in the opinion of the Court is necessary for determining the real controversy between the parties. (b) Order 6 rule 17 CPC clothes the Court with power and duty to allow either party to amend the pleadings at any stage of the proceedings and to allow the amendment which is necessary for determining the controversy between the parties. Then has observed that the amendment is aimed at introducing left over properties which are in continuity to the case set up by the plaintiff in the plaint. (c) Application if not allowed would mean that the plaintiff shall institute a fresh suit. Relying on the judgment of the Hon'ble Apex Court reported in (2006) 6 SCC 498 has finally observed that the case is at its initial stage, amendment application is allowed subject to cost of Rs. 500/-. Amended plaint has already been taken on record. The defendants shall file the fresh written statement. 10. Learned counsel for the petitioner would submit that the learned trial Court has allowed the amendment which is to cause prejudice to the petitioner as otherwise suit of the plaintiff was to be dismissed while accepting the preliminary objection. Further added that all the properties of the predecessor in interest were within the knowledge of the plaintiff. He has deliberately opted not to seek partition regarding all such properties. Further added that all the properties of the predecessor in interest were within the knowledge of the plaintiff. He has deliberately opted not to seek partition regarding all such properties. Buttressing the statement, submitted that proviso to order 6 rule 17 CPC is explicit in its terms to provide that an application for amendment cannot be allowed after the trial has commenced. 11. Order 6 rule 17 CPC gives a sweeping power to the Court to allow either party to alter or amend the pleadings as may be just and necessary for the purpose of determining the real questions in controversy between the parties. This sweeping power is controlled by the proviso as said above. In the case in hand, admittedly issues have been framed but evidence so far not led. The trial as such is at its infancy stage. It is a fact that the other properties of the predecessor in interest of the parties were within the knowledge of the plaintiff normally plaintiff should have incorporated all the properties in the plaint. 12. The star question which arises for consideration is to whether in the light of the proviso to rule 17 order 6 CPC, amendment could not be permitted. There is no straight jacket formula to be applied. Every case has its own features dependant on such features; rigor of the law is to be applied. 13. The proviso is enabling not disabling one. Plaintiff has filed the suit for partition regarding one property that is house, one kanal and one marla of land. Regarding other properties as left behind by the predecessor in interest, filing of fresh suit at the instance of plaintiff or even at the instance of defendants does not appear to be barred. Would it be appropriate to decline grant of amendment so as to leave scope for filing fresh suits regarding the properties left behind by the deceased (predecessor in interest). Will it be permissible to allow multiplicity of litigation when there is scope for settling the controversies inter se parties regarding the properties in this suit, that too when the suit is at its infancy stage, as evidence as yet has not been led by either party. 14. Scope of proviso to rule 17 CPC has to be read conjointly with the other part of the order 6 rule 17 CPC. 14. Scope of proviso to rule 17 CPC has to be read conjointly with the other part of the order 6 rule 17 CPC. Harmonious reading would provide for adopting a liberal approach particularly in the case which is at its infancy stage. As a sequel thereto, no prejudice will be caused to either side Therefore, to decline such amendment shall not be in the larger interest of the justice. In my view, I am fortified by the judgment rendered by the Hon'ble Apex Court in the case of Abdul Rehman and Ors. V. Mond. Ruldu and Ors. (2012) 11 SCC 341 . The following portion from para 11 shall be advantageous to be quoted: "11. ................The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that 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. This court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel v. Gattu Mahesh (2012) 2 SCC 300 and Ramesh kumar Agarwal v. Rajmala Exports (P) Ltd. (2012) 5 SCC 337 ". 15. It shall also be useful to quote following portion from para 17 of the judgment rendered by the Hon'ble Apex Court in the case Baldev Singh and Ors. v. Manohar Singh and Anr. (2006) 6 SCC 498 , which reads as under: "17. 15. It shall also be useful to quote following portion from para 17 of the judgment rendered by the Hon'ble Apex Court in the case Baldev Singh and Ors. v. Manohar Singh and Anr. (2006) 6 SCC 498 , which reads as under: "17. ...........................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 to the court to allow an amendment of the written statement at any stage of the proceedings." 16. It shall also be useful to quote para 15 and 16 of the judgment captioned Rajesh Kumar Aggrawal and Ors. v. K.K. Modi and Ors. (2006) 4 SCC 385 . ".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." 17. For the stated reasons and the law, learned trial Court not found to have exceeded its limits in allowing the amendment which otherwise would warrant exercise of power under Section 104 of the State Constitution. No case is made out so as to persuade to Court to exercise supervisory power. Petition is accordingly dismissed. Copy of the order be sent to trial Court for information.