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2017 DIGILAW 1185 (ORI)

State of Orissa v. Omkarnand Purohit

2017-10-23

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This civil miscellaneous petition arises out of rejection of an application for amendment of the written statement by the trial Court at the stage of first appeal. 2. Assailing the impugned order, Sri Sahu, learned State Counsel taking this Court to the proposed amendment as well as the grounds therein attempted to satisfy this Court that the facts borne therein and sought to be brought as pleadings in the written statement by way of amendment, are all relevant for the purpose of effective adjudication of the suit and delay in filing such application should not stand as a bar in taking into consideration such aspect. It is alleged that the trial Court having failed to appreciate this aspect of the matter has arrived at an illegal and erroneous impugned order, which unless be interfered with and set aside, it may result in a bad principle of law. 3. Referring to decisions as reported in (1) AIR 2008 Supreme Court 2139 in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L.Rs., (2) 2008 (II) OLR (SC)-511 in the case of P. Kunjukrishna Pillai & Anr. V. D. Sreekantan Naik & Ors. and (3) 2010 (II) OLR-381 in the case of Smt. Soudamini Chhotaray v. Surya Narayan Khuntia & others, Sri Sahu, learned State Counsel submitted that even after amendment of the provision at Order 6 Rule 17 of C.P.C the pleadings in the plaint or written statement can be amended following the decisions referred to hereinabove and it is under the circumstance, Sri Sahu, the learned State Counsel submitted that unless the impugned order is interfered with and set aside and the application under Order 6 Rule 17 is allowed, there may not be effective adjudication of the lis involved. 4. Sri B.P. Satapathy, learned counsel for the opposite party no.1 on the other hand, opposing the submissions made by the learned State Counsel submitted that the Order 6 Rule 17 though permits a party to bring the amendment at any stage of the proceeding but the restrictions contained therein compulsory requires a party to satisfy the aspect that in spite of due diligence, the party was not in a position to bring such amendment during pendency of the suit. Sri Satapathy, thus referring to the amended provisions contained in Order 6 Rule 17 of C.P.C, contended that for the clear restrictions therein and for there being no disclosure in the application for amendment considered in the impugned order, regarding satisfaction of factum of due diligence and for the reasons assigned by the lower appellate Court, there is no infirmity in the impugned order leaving any scope to this Court for interfering with the same. Thus, Sri Satapathy, learned counsel prayed for rejection of the civil miscellaneous petition. 5. Considering the rival contentions of the parties, this Court finds, admittedly the suit involved was filed in the year 2007. Similarly, there is no denial to the fact that amendment of the written statement was brought by the appellant in the first appellate stage. There is also no dispute on the proposition that amendment of the plaint or the written statement can be brought at any stage of the suit or in the 1st appeal stage or even in the 2nd appeal stage and all these stages includes the meaning of continuance of the proceeding. Keeping in mind the time of filing of application and taking into consideration the pleadings sought to be brought by way of amendment, the question arose here for consideration is as to whether the amendment sought for without satisfaction of the factum of due diligence and even in absence of any remote explanation even satisfying that the party was not in a position to bring such amendment during pendency of the suit in spite of all sincere efforts is required to be allowed? And if amendment at this stage of the proceeding will affect the adversary? Order 6 Rule 17 of C.P.C. as amended on 1.07.2002 reads as follows Order 6 xxxxxx “[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.] 6. There is no dispute to the fact that the purpose behind the amendment was not only to prevent frivolous application but also to curtail the delay and expeditious hearing of the cases and to some extent to limit the scope of amendment of the pleadings. Deciding a case of similar nature in the case of Revajeetu Builders & Developers vs. Narayanawswamy & Sons & Others as reported in 2009 (II) OLR (SC) 815, the Hon’ble Apex Court laid the following principles for considering a case of this nature: “67. On critically analyzing both the English and India 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.” The Hon’ble Apex Court in paragraph nos.61 to 63 & 68, 69 & 70 of the aforesaid judgment also held as follows: 61. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts’ discretion in grant or refusal of the amendment. 62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. 63. The Courts have very wide discretion in the matter of amendment of pleadings but court’s powers must be exercised judiciously and with great care. 68. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. 63. The Courts have very wide discretion in the matter of amendment of pleadings but court’s powers must be exercised judiciously and with great care. 68. These are some of the important factors which may be kept in mind while dealing with application failed under Order VI Rule 17. These are only illustrative and not exhaustive. 69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. 70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.” Analyzing the applicability of the above judgment to the case at hand, this Court finds, not only there is no bona fide establishing such amendment in the appeal stage but allowing such amendment would also prejudice to the other side for being moved almost after 10 years of the institution of the suit. Further remand of such proceeding may also not only necessitate remand of the suit for retrial with scope for further evidence and supplementary argument at the cost of taking away the judgment and decree being enjoyed by the plaintiff over a decade. 7. The Hon’ble Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India as reported in 2005 (II) CLR (SC)-262 in para-27 held as follows: “27. Order VI Rule 17 of the Code 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 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 has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.” 8. Coming back to the factual scenario involving the case at hand and reading of the paragraphs involving the proposed amendment, this Court finds, all the averments made therein are dependent on the factual aspects either borne from the plaint or a situation involving prior to filing of the plaint through the notice under Section 80(1) & (2) of C.P.C., further involving an attempt to develop some factual aspects already explained in the written statement. None of the statements appears to be a surprise or recent appearances or a first-hand information available to a party after filing of the appeal or even after pronouncement of the judgment in the suit. Now coming back to the explanation for bringing such amendment at the appeal stage that too after 10 years of institution of suit, this Court finds, the State has a categoric statement that the pleadings brought by way of proposed amendment arises for the inadvertent mistake and the inadvertent omissions by the State authority while filing the written statement. Such explanation from the might state having a battery of counsels specially engaged for the purpose remain inexcusable. 9. Considering the above aspect and keeping in mind the purpose behind the legislation involving the Order 6 Rule 17 of C.P.C. particularly after amendment of the provision restricting such amendments and with only rider to find out despite due diligence, the party was not in a position to bring such amendment during course of trial, this Court is not satisfied with any of the grounds taken in the application overcoming the level of belated attempt for the amendment. 10. Perused the observations made in the impugned order. Following the judgment of the Hon’ble Apex Court restricting the application of the Order 6 Rule 17 of C.P.C under the particular circumstances, this Court finds, there is no infirmity in the impugned order requiring any interference of this Court in the same in exercise of power under Article 227 of the Constitution of India. Following the judgment of the Hon’ble Apex Court restricting the application of the Order 6 Rule 17 of C.P.C under the particular circumstances, this Court finds, there is no infirmity in the impugned order requiring any interference of this Court in the same in exercise of power under Article 227 of the Constitution of India. While parting away with the case, this Court observes that it has gone through the citations cited by the learned State Counsel referred to hereinabove and for the cases dealing with the applicability of the provisions under Order 6 Rule 17 of C.P.C. in appellate stage and for the change in the factual situation involving the case at hand, this Court finds, none of the cases cited by the State counsel has any application to the case at hand. 11. Under the circumstance, this Court while declining to interfere with the impugned order, dismisses the civil miscellaneous petition. No cost.