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2016 DIGILAW 294 (HP)

Ranjot Singh Thakur v. Virender Singh

2016-03-18

RAJIV SHARMA

body2016
JUDGMENT : Justice Rajiv Sharma, J. This petition is directed against the order dated 7.8.2015, rendered by the learned Civil Judge (Jr. Divn.), Chopal, Distt. Shimla, H.P., in application case No. 57-6 of 2015 in case No. 26-1 of 2012. 2. Key facts, necessary for the adjudication of this petition are that respondents-plaintiffs (hereinafter referred to as the plaintiffs) have filed a suit under Sections 34 and 38 of the Specific Relief Act against the petitioners-defendants as well as proforma defendants for declaration. The petitioner-defendant No. 3 was proceeded ex parte and petitioners-defendants No. 1, 2, 4 & 5 contested the suit by filing written statement. Defendant No. 6 also filed separate written statement. The issues were framed and the plaintiffs have led their evidence. The case was listed for 9.9.2015 for defendants/petitioners' evidence. 3. Petitioner No. 1, namely Ranjot Singh Thakur moved an application under Order 6 Rule 17 CPC on 22.12.2014 before the learned trial Court for carrying out amendment in para 6 of the written statement already filed by defendants No. 1, 2, 4 & 5. The application was contested by the plaintiffs. The learned trial Court dismissed the same on 7.8.2015. Hence, this petition. 4. According to the averments made in the application preferred under Order 6 Rule 17 CPC, some material facts could not be mentioned and pleaded in the written statement filed by defendant No. 1 due to inadvertence. One document (Ikrarnama) regarding the agreement to sell the suit property also could not be produced alongwith the written statement. According to the applicant, Chet Ram, father of plaintiffs No. 1 to 5 and husband of plaintiff No. 6 had sold his land and house i.e. suit property to the defendant No. 1 for consideration of Rs. 47,500/- in the presence of witnesses. Out of the total consideration amount, half of the amount was paid by the applicant to Chet Ram. The rest of the remaining half amount was to be paid at the time of execution of the sale deed. Earlier he was represented by Advocate S.S.Khimta. He has expired. He showed original documents to his counsel. The applicant engaged Smt. Seema Mehta Advocate. The documents were shown to her. It is, in these circumstances, application was filed seeking amendment. 5. According to the plaintiffs, the proposed amendment was not necessary for the complete adjudication of the lis. Earlier he was represented by Advocate S.S.Khimta. He has expired. He showed original documents to his counsel. The applicant engaged Smt. Seema Mehta Advocate. The documents were shown to her. It is, in these circumstances, application was filed seeking amendment. 5. According to the plaintiffs, the proposed amendment was not necessary for the complete adjudication of the lis. Neither any agreement to sell was executed nor any part consideration was paid. The applicants intended to grab the suit land by fabricating false story. The applicant defendant No. 1 has signed the written statement after reading and understanding its contents. According to the plaint, the plaintiffs were owners-in-possession of the suit land, as detailed in the plaint. They have constructed residential house over it. The nature of the suit property was ancestral. They have also filed civil suit for declaration and partition which was decreed in their favour vide judgment dated 28.8.1999. The defendants with intention to deprive the plaintiffs from their valuable ancestral and coparcenary property in the wrongful and illegal manner executed a false, fake and forged document (General Power of Attorney) on behalf of Chet Ram in favour of defendant No. 1 with a motive to grab the land. No such General Power of Attorney was ever executed. With the intention to obtain loan benefits from the Scheduled Caste and Scheduled Tribe Development Corporation, the defendants No. 1 to 5 hatched a conspiracy in connivance with each other to procure frivolous document for purchasing vehicle in the name of Basti Ram defendant No. 3. 6. According to the averments made in the written statement, the General Power of Attorney was executed by Sh. Chet Ram in sound state of mind in favour of defendant No. 1 in the presence of reliable witnesses. It was registered and attested by Sub Registrar Rajgarh. The raising of the loan is admitted. 7. I have heard learned counsel for the parties and gone through the impugned order dated 7.8.2015, carefully. 8. In this case, the suit was instituted in the year 2012. The written statement was filed and issues were framed on 22.8.2013. The plaintiffs have already led their evidence. The matter was listed for recording defendants' evidence. There is no mention of alleged agreement dated 16.10.1996 in the written statement filed by defendants No. 1, 2, 4 & 5 jointly. In this case, the suit was instituted in the year 2012. The written statement was filed and issues were framed on 22.8.2013. The plaintiffs have already led their evidence. The matter was listed for recording defendants' evidence. There is no mention of alleged agreement dated 16.10.1996 in the written statement filed by defendants No. 1, 2, 4 & 5 jointly. No suggestions were put to the witnesses produced by the plaintiffs qua the agreement dated 16.10.1996. The document ought to have been mentioned in the written statement. The application under Order 6 Rule 17 CPC has been preferred to delay the proceedings. The trial has already commenced. It was necessary for the applicants to prove that inspite of due diligence they could not amend the written statement before the commencement of the trial. 9. Their lordships of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vrs. Union of India and another, reported in (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. 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. 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) 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 v. Makhan Singh, (2009) 10 SCC 626 , at para 5: "5. As noted hereinearlier, 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. 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 v. Bhagwan Das (dead) by LRS, (2008) 8 SCC 511 , at para16: "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 v. 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 v. 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 v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05) "17. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. 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 v. 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 v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 , at para 63: "63. 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 v. 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; 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." 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.? 10. Their lordships in the case of J.Samuel and others vrs. Gattu Mahesh and others, reported in (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. 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. 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. 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.? 11. Mr. Rajnish K. Lall, Advocate, has vehemently argued that new counsel was engaged after the death of Sh. S.S. Khimta, Advocate. However, the fact of the matter is that new counsel Smt. Seema Mehta has also not put any suggestion to the witnesses of the plaintiffs during their cross-examination. The amendment, at this belated stage, would definitely change the nature of the suit and would cause prejudice to the plaintiffs. The plaintiffs have already led their evidence. 12. Consequently, there is neither any illegality nor perversity in the order dated 7.8.2015 passed by the learned trial Court. The petition is accordingly dismissed. Order dated 8.9.2015 is vacated. The learned Civil Judge (Jr. Divn.) Chopal, is directed to decide the lis within a period of six months from today. The parties, through their counsel, are directed to appear before the learned trial Court on 30.3.2016. No costs.