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2015 DIGILAW 881 (HP)

Shiv Shambhu v. Amrit Ram

2015-07-14

RAJIV SHARMA

body2015
JUDGMENT Rajiv Sharma, J. 1. This petition is directed against the order dated 15.05.2014, rendered by the learned Civil Judge (Senior Division), Una, H.P. 2. Key facts, necessary for the adjudication of this petition are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs for the convenience sake) have filed a suit for declaration to the effect that the land as detailed in the plaint and entered in the jamabandi for the year 1985-86, situated in Village Takka, Tehsil and District Una, H.P. stood already partitioned and the plaintiffs were exclusive owners of the land measuring 1 kanal 7 marlas bearing Khewat No. 572, Khatauni No. 787, Kh. Nos. 51/30/1, 341/3, as mentioned in the jamabandi since 1970-71 and also consequential relief for permanent injunction restraining the petitioners-defendants (hereinafter referred to as the defendants) from initiating any proceedings with the Tehsildar (Settlement) for again getting regular partition and blocking the passage comprised in Kh. No. 51/30, Khewat No. 780, Khatauni No. 1053, as entered in the Jamabandi and also restraining them from raising any construction of any kind on any specific portion of the land. In the alternative, the plaintiffs have prayed for demolition by way of mandatory injunction in case the defendants forcibly raise construction over Kh. Nos. 51/30/1 and 341/3, bearing Khatauni No. 787. 3. The written statement was filed by the defendants. Replication was also filed by the plaintiffs. The learned Civil Judge (Senior Division) Una, framed the issues and thereafter, the application under Order 6 Rule 17 for amendment of the plaint was filed. Reply was filed by the defendants. According to the plaintiffs, the order dated 24.11.2004 rendered by the Assistant Collector in Case No. 82 of 2004 and the order passed in Appeal No. 1 of 2005 SO by the Collector, Settlement Kangra, District Kangra were illegal, wrong, without jurisdiction, null and void. The application was contested by the defendants. According to them, the order passed by the Assistant Collector and Collector, Settlement Kangra, were in accordance with law. 4. The suit was instituted on 26.10.2004 and issues were framed on 28.10.2005. The mode of partition was approved on 30.7.2004 vide Ext. DW-3/H. After the closure of the evidence of the plaintiffs, the evidence of the defendants was closed on 7.10.2010. The plaintiffs’ evidence in rebuttal was ordered on 6.12.2010 for 13.1.2011. 4. The suit was instituted on 26.10.2004 and issues were framed on 28.10.2005. The mode of partition was approved on 30.7.2004 vide Ext. DW-3/H. After the closure of the evidence of the plaintiffs, the evidence of the defendants was closed on 7.10.2010. The plaintiffs’ evidence in rebuttal was ordered on 6.12.2010 for 13.1.2011. The application was filed belatedly to prolong the proceedings and to overcome the order passed by the revenue authorities. The learned Civil Judge (Senior Division), Una, allowed the application on 15.5.2014. Hence, this petition. 5. I have heard learned counsel for the parties and gone through the impugned order dated 15.5.2014, carefully. 6. The application filed by the plaintiffs under Order 6 Rule 17 CPC was definitely an attempt to prolong the proceedings. The evidence of the defendants was closed on 7.10.2010. The evidence in rebuttal of the plaintiffs was ordered on 6.12.2010 for 13.1.2011. The suit was instituted on 26.10.2004. The issues were framed by the learned Civil Judge (Senior Division), Una on 28.10.2005. Order dated 24.11.2004 rendered by the Assistant Collector, Settlement Officer, Barsar and upheld by the Collector, Settlement Kangra on 26.2.2007 in Appeal No. 1 of 2005 SO, were within the knowledge of the plaintiffs and despite that they have not assailed the same. The learned trial Court has come to the wrong conclusion that the amendment sought for by the plaintiffs was material to determine the controversy between the parties. The trial has already commenced and no ground has been made out by the plaintiffs to move an application under Order 6 Rule 17 CPC. 7. Mr. Y.P. Sood, Advocate, for the respondents-plaintiffs has strenuously argued that his clients did not intend to lead any evidence; however, the fact of the matter is that defendants would definitely be prejudiced by allowing the amendment application, more particularly, when the suit was listed for final hearing. 8. Their lordships of the Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Union of India and Another, (2011) 12 SCC 268 , have held that when application is filed after the commencement of the trial, it must be shown that inspite of due diligence, such amendment could not have been sought earlier. Their lordships have held as under: “7. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. Their lordships have held as under: “7. 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. 8. 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. 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: "8. 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. 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 vs. Makhan Singh, (2009) 10 SCC 626 , at para 5: "5. As noted herein-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. 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 vs. Bhagwan Das (dead) by LRs., (2008) 8 SCC 511 , at para 16: "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 vs. 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. In Pirgonda Hongonda Patil vs. 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 vs. 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 vs. 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 vs. 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 vs. 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. (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." 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.” 9. Their lordships in the case of J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 , have held that omission of specific plea that inspite of due diligence the party could not have raised the matter before the commencement of the trial, mandatorily amounts to negligence and lack of due diligence. Their lordships in the case of J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 , have held that omission of specific plea that inspite of due diligence the party could not have raised the matter before the commencement of the trial, mandatorily amounts to negligence and lack of due diligence. Their lordships have explained the term “due diligence”. It has been held as under: “15. In this legal background, we have to once again recapitulate the factual details. In the case on hand, Suit O.S. No. 9 of 2004 after prolonged trial came to an end in September, 2010. The application for amendment under Order VI Rule 17 CPC was filed on 24.09.2010 that is after the arguments were concluded on 22.09.2010 and the matter was posted for judgment on 04.10.2010. We have already mentioned that Section 16(c) of the Specific Relief Act contemplates that specific averments have to be made in the plaint that he has performed and has always been willing to perform the essential terms of the Act which have to be performed by him. This is an essential ingredient of Section 16(c) and the form prescribes for the due performance. The proviso inserted in Rule 17 clearly states that no amendment shall be allowed after the trial has commenced except when the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. 18. 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 plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice 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. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice 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 interests 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.” 19. 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. 20. 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.” 10. Accordingly, the petition is allowed. Order dated 15.5.2014, passed by the learned Civil Judge (Senior Division), Una, is set aside. The learned trial Court is directed to decide the suit within 10 weeks from today. The parties are directed to appear before the learned trial Court, through their counsel on 22.7.2015.