ORDER 1. This writ petition under Article 227 of the Constitution of India by defendant is directed against the order dated 10.2.2015 passed in Civil Suit No.9-A/2013 by the trial Court. The trial Court has allowed the application under Order VI rule 17 CPC filed by the plaintiff. 2. Learned counsel for the defendant/petitioner has made the following submissions : (a) the power under Order VI rule 17 CPC though discretionary in nature, however, the same is required to be exercised with care, caution and circumspection, as the discretion conferred upon the trial Court is judicial discretion; (b) the proviso appended to Order VI rule 17 CPC has to be given effect to in the context of series of judgments rendered by the Hon'ble Supreme Court and this Court, otherwise, elastic attitude adopted by the trial Court in the matter of application of proviso to Order VI rule 17 CPC shall render the rigor of the aforesaid proviso to otiose; (c) in the instant case, the plaintiff/respondent has made as many as two amendments; on 24.9.2013 at the time of framing of issues and on 16.9.2014, at the time parties have submitted their evidence under Order XVIII rule 4 CPC. It is submitted that the defendant has not objected to the aforesaid amendments; (d) again, at the advanced stage of the suit, as late as on 22.1.2015 application seeking amendment in the plaint has been filed with reference to the facts of the years 1932 and 1940 related to the alleged mortgage of the suit property and the redemption thereof, on the pretext that the aforesaid facts came to the knowledge upon discovery of the documents in the sleek storage boxes at home. 3. It is submitted that the aforesaid explanation as regards discovery of the documents is a fabricated one having no factual foundation. Once the suit is filed on the strength of the 'Will' dated 8.4.1994 allegedly propounded by late Nathmal, as late Nathmal was owner of the suit property by virtue of sale deeds dated 25.11.1940 and 26.11.1940, no further elaboration was required seeking incorporation of the proposed amendment. As a matter of fact, the aforesaid amendment application is filed to misuse the process of law as the suit is pending since 6.2.2012 and so far, the evidence has not been completed though more than four years period has passed by.
As a matter of fact, the aforesaid amendment application is filed to misuse the process of law as the suit is pending since 6.2.2012 and so far, the evidence has not been completed though more than four years period has passed by. Under such circumstances, the amendment being not relevant for decision in the suit, the amendment application ought to have been dismissed by the trial Court. That having been not done, the trial Court has committed grave illegality warranting interference by this Court under Article 227 of the Constitution of India. 4. Per contra, learned counsel for the plaintiff/respondent has made the following submissions : (i) true it is, that the power under Order VI rule 17 CPC is discretionary in nature but regulation of that power by the trial Court must be with due care bearing in mind the concept of justice, equity and good conscience. The trial Court may not act in a straight jacket formula in the matter of application of proviso to Order VI rule 17 CPC; (ii) the amendments sought by the plaintiff/respondent were not of such nature so that it may change nature of the suit or cause prejudice to the defendant. According to him, the amendments so incorporated by the plaintiff are clarificatory in nature only to help facilitate in addressing the substantive issue of dispute between the parties. Therefore, the trial Court has rightly exercised the jurisdiction while allowing the amendment application. (iii) that apart, the delay caused in filing the amendment application was only for want of knowledge and no sooner plaintiff acquired the knowledge, the application was filed, therefore, no interference is warranted in the impugned order. 5. Heard. 6. True it is, that the provisions of Order VI rule 17 CPC and the proviso appended thereto confer judicial discretion upon the trial Court in the matter of consideration of the application for amendment filed by either party in a suit. The trial Court is required to address upon the application bearing in mind that the proposed amendment is (a) bona fide in nature, (b) does not change nature of the suit (c) does not cause any prejudice to the other side; and (d) it is necessary and relevant to address on the real issue involved in the suit between the parties.
The aforesaid considerations are in realm of justice, equity and good conscience as the procedures have to be adhered to in the context of the aforesaid principles. It is settled law that the procedural laws are handmaid laws to do complete justice between parties and are not mistress of the judicial process. 7. Upon perusal of the amendments allowed by the trial Court, true it is that the aforesaid amendments are clarificatory in nature. Admittedly, the amendments so incorporated do not change nature of the suit or bring in such new facts which may cause prejudice to the defendant/petitioner as the defendant shall have full opportunity to make consequential amendment in the written statement. The trial Court shall be under an obligation to frame additional issues on the basis of the pleadings so amended by the parties. However, there is substantial force in the contention advanced by learned counsel for petitioner that there is unwarranted delay in filing the amendment application. Hence, this Court deems it fit and proper to allow substantial cost to compensate the defendant/petitioner, as such the cost is increased from Rs.500/- to Rs.10,000/- (Rupees ten thousand only) which shall be paid by the plaintiff/respondent to the defendant/petitioner within a week from today. Thereafter, the trial Court shall proceed further in the suit. 8. Writ petition stands disposed of without interfering with the order passed by the trial Court, with the aforesaid observations and directions, accordingly. 9. It is made clear that this Court has not expressed any opinion on merits of the case.