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2017 DIGILAW 398 (AP)

Vinod Gupta v. Fatima Miraz Sultana

2017-07-07

M.SATYANARAYANA MURTHY

body2017
ORDER : M. Satyanarayana Murthy, J. This petition is filed under Article 227 of the Constitution of India, challenging the order in I.A .No.851 of 2013 in O.S. No.1088 of 2007 dated 02.09.2014, passed by the IV Additional District and Sessions Judge, Ranga Reddy District at L.B Nagar, dismissing the application filed under Order 6, Rule 17 C.P.C for amendment of the plaint. 2. The petitioner herein is the plaintiff and respondents herein are the defendants before the Trial Court, and they will hereinafter be referred as arrayed in the civil revision petition, for the sake of convenience. 3. The petitioner filed O.S. No.1088 of 2007 for specific performance of contract of sale having purchased A & B schedule properties of an extent of 6680 sq.yds (3680 + 3000). The sale consideration agreed under the agreement is Rs. 10 crores. During pendency of the suit, the petitioner allegedly paid a total amount of Rs. 7,15,00,000/- on different occasions and the payments took place during pendency of the suit before the trial Court. As the suit is filed in the year 2007 itself and all the payments are subsequent events, the petitioner wanted to bring on record by raising subsequent pleadings by amending the plaint under Order 6, Rule 17 C.P.C. 4. The respondents opposed the petition on various grounds, mainly only on the ground that the reliefs claimed in the proposed amendment are based on the cause of action that arose prior to filing of the suit. The respondents also stated that the proposed averments are not connected to the suit agreement, as suit agreement is replaced by development agreement, thereby, the suit itself is not maintainable. It is also stated that O.S No.85 of 2015, suit for specific performance of development agreement is pending. The Trial Court in paragraph 9 of order in I.A .No.851 of 2013 in O.S. No.1088 of 2007 dated 02.09.2014 observed as follows: "9. ...............................So as per my understanding that any amendment can be made which it does not go the route of the matter so long as that is enough material in the paper to enable him to be identified beyond doubt. In this case in hand, I am of the opinion that the plaintiff is referring about execution of registered development agreement irrevocable GPOA vide doc. No.192 of 2009 which itself change the case of the plaintiff. In this case in hand, I am of the opinion that the plaintiff is referring about execution of registered development agreement irrevocable GPOA vide doc. No.192 of 2009 which itself change the case of the plaintiff. Further the plaintiff is also obtained permission from HMDC for construction of building on 30.04.2013 by investing huge amount as per the terms and agreement of sale cum GPA. So as per this proposed pleading I am of the opinion that definitely the nature of the suit will be changed impliedly, for which the respondents, who are contesting may suffer prejudices and irreparable loss. ..................." 5. Thus, the finding of the Trial Court is now assailed in the civil revision petition, raising several contentions, mainly on the ground that the proposed amendment is based on subsequent events, viz., after entering into an agreement with the third party for development and those subsequent events can only be brought on record by amending the plaint and with the bar under the proviso to Order 6, Rule 17 C.P.C, has no application to such facts. Apart from that, entering into a fresh agreement does not change the nature of the suit for specific performance and therefore, the amendment is to be allowed. It is contended that the Trial Court on erroneous appreciation of facts and law, committed an error in dismissing the petition and prayed to set-aside the same. 6. During hearing, learned Senior Counsel Sri Veera Reddy appearing for the petitioner Sri Karri Murali Krishna would contend that subsequent events can be brought on record only by way of amendment under Order 6, Rule 17 C.P.C and placed reliance on the judgments of the Supreme Court in Rajkumar Guruwara (dead) through LRs v. S.K. Sarwagi and Company Private Limited and another, (2008) 14 Supreme Court Cases 364, Sampath Kumar v. Ayyakannu and another, (2002) 7 Supreme Court Cases 559 and T. Venkata Ravamma and others v. Karnati Lakshmamma and another, 2015 (5) ALT 184 . On the strength of the principles laid down in the above judgments, learned counsel for the petitioner requested this Court to set-aside the impugned order while allowing the civil revision petition. 7. Whereas, learned counsel for the respondents Sri K. Ramakanth Reddy contended that, in view of subsequent development agreement between the parties, the earlier agreement need not be performed, as it amounts to novation. 7. Whereas, learned counsel for the respondents Sri K. Ramakanth Reddy contended that, in view of subsequent development agreement between the parties, the earlier agreement need not be performed, as it amounts to novation. That apart, it is contended that the amendment application was filed after filing of the suit and in view of the bar under the proviso to Order 6, Rule 17 C.P.C when the Trial has been commenced, the petition for amendment under Order 6, Rule 17 C.P.C cannot be entertained unless the petitioner explains that despite exercise of due diligence, the petitioner could not bring those new facts on record by amending the pleadings. Therefore, the order of the Trial Court cannot be faulted on the simple ground that the amendment petition cannot be allowed in view of the bar under Order 6, Rule 17 C.P.C and prayed for dismissal of the petition. 8. Considering rival contentions and perusing the material available on record, the point that arose for consideration is "Whether the proposed amendment to the written statement filed by the petitioner would change the nature of the plea raised in the written statement originally, takes away the valuable right that accrued to the respondents or withdraws the unequivocal admission made in written statement. If not, the petitioner is entitled to leave to amend the pleadings the written statement?" Point: 9. The suit was filed only for specific performance of agreement of sale and now the petitioner is proposing to include certain payments that he has paid during pendency of the suit. But, according to the learned counsel for the respondents, the petitioner made an allegation in the proposed amendment that there was a fresh development agreement, thereby, it amounts to novation. No doubt, when a fresh agreement is entered into, the earlier agreement need not be performed under Indian Contract Act. But, such question cannot be decided while deciding an application for amendment. 10. No doubt, when a fresh agreement is entered into, the earlier agreement need not be performed under Indian Contract Act. But, such question cannot be decided while deciding an application for amendment. 10. Moreover, inconsistency in the pleadings is not at all relevant, in view of the law declared by the Court in A. Krishna Rao v. A. Narahari Rao and others, 2015 (1) ALT 113 , the Court while dealing with an application under Order 6, Rule 17 of C.P.C., held as follows: "Rejection of petition under Order 6, Rule 17 of C.P.C. on the ground that proposed amendment is inconsistent with original plea and petitioner cannot be permitted to raise such inconsistent plea is not justified. Amendment of pleading cannot be rejected even if proposed amendment has effect of raising conflict in plea. It is for the plaintiff to justify his pleadings and prove the same with reference to evidence. Since the procedure being handmaid of justice, a party cannot be deprived of his right to raise pleadings by way of amendment unless proposed amendment results in failure of justice." 11. Thus, in view of the principle laid down by the Court in the above judgment, the Court can permit amendments to avoid multiplicity of the proceedings. Therefore, this Court need not examine the merits in the proposed amendment. 12. According to Rule 17 Order 6 of C.P.C., 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. However, the principles to allowing petitions under Rule 17 Order 6 of C.P.C. are well settled. They are; the amendment shall not alter the basic structure or nature of the claim and that the amendment shall not take away the valuable right that accrued to the respondent or such amendment would not amount to withdrawing unequivocal admissions made in the pleadings. However, by proviso to Rule 17 Order 6 of C.P.C, an interdict is created to that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. However, by proviso to Rule 17 Order 6 of C.P.C, an interdict is created to that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. Thus, the intention of the Legislature in incorporating Order 6, Rule 17 C.P.C is to avoid multiplicity of litigations, permitting the parties to amend their pleadings appropriately. 13. The Court can exercise its discretion in view of the law declared by the Apex Court in Revajeetu Builders and Developers v. Narayanaswamy & Sons and others, 2009(8) SCJ 401 , wherein the Apex Court laid down certain guidelines for granting or denying relief under Order 6, Rule 17 of CPC viz., as follows: "On critically analyzing 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 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. It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6, 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. The purpose and object of Order 6, 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 litigation's. 24. The Apex Court further held that, "amendment application to be filed if necessary immediately after filing suit i.e. before commencement of trial. If the petitioners are able to prove or explain as to how they failed to take steps before the trial commenced despite exercising due diligence, the Court can allow such amendment. The factum of exercising due diligence depends upon circumstances." 14. Similarly, in Rajkumar Guruwara 2 case, the Apex Court laid down the following conditions to grant application for amendment subject to certain conditions: (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. 15. Thus, the principles laid down in the above judgments are exceptions to deny relief under Order 6, Rule 17 C.P.C. Therefore, at best, the petitioner is required to prove that the proposed amendment would not change the nature of the suit and it would not result in introducing new cause of action and cause prejudice to the party. That apart, question of limitation does not arise in this case. Here, in this case, the subsequent events are intended to be brought on record by way of amendment and such subsequent events cannot be brought on record, except by amending the pleadings. Therefore, the only course open to the petitioner to bring those subsequent events is under Order 6, Rule 17 C.P.C by amending the pleadings i.e. plaint. Here, in this case, the subsequent events are intended to be brought on record by way of amendment and such subsequent events cannot be brought on record, except by amending the pleadings. Therefore, the only course open to the petitioner to bring those subsequent events is under Order 6, Rule 17 C.P.C by amending the pleadings i.e. plaint. So far as introducing new cause of action is concerned, a subsequent payment is nothing but continuation of cause of action that arose on the date of filing the suit and that would not cause prejudice, since the respondents will have an opportunity to file an additional statement to defend their case after proposed amendment is carried out, if allowed. 16. Learned counsel for the respondent Sri Veera Reddy has drawn attention of this Court to the judgment of the Supreme Court in Rajkumar Guruwara 1 case, wherein, in paragraph 18 of the said judgment, it was held as follows: "Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6, Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge." 17. Even in Sampath Kumar case, the Apex Court relying on earlier judgment of the Supreme Court in Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335 held that an amendment once incorporated relates back to the date of the suit. Even in Sampath Kumar case, the Apex Court relying on earlier judgment of the Supreme Court in Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335 held that an amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. In any view of the matter, there is no quarrel about the law declared by the Apex Court. However, the Court has to decide whether the proposed amendment would change the nature of the suit and it would take away the valuable right that accrued to the respondents and that it would withdraw the admissions, if any, made and bar of limitation, in view of the guidelines laid down in Revajeetu Builders and Developers 5 case. 18. In the present case, the proposed amendments are only to bring on record the subsequent events i.e. payments made on four different occasions and it would not change the nature of the suit, since the suit for specific performance remains as it is. 19. But, the learned counsel for the respondents contended that, in view of development agreement, the respondents need not perform the original agreement and it is hit by section 62 of Indian Contract Act. But, such question cannot be decided in a petition filed under Order 6, Rule 17 C.P.C, as the scope is limited. However, it is left open to the petitioner to raise such contentions before the Trial Court. Therefore, on this ground, the proposed amendment cannot be refused. But the Trial Court did not consider the basic requirements for consideration of an application for grant of leave to amend the plaint under Order 6, Rule 17 C.P.C. Moreover, the proviso to Order 6, Rule 17 C.P.C introduced by Act 22 of 2002 will not come in the way for the simple reason that, by the date of filing the suit, these payments were not made and these are only subsequent events during pendency of the suit and immediately after payment, the present petition is filed. Therefore, question of failure to bring those facts, despite exercise of due diligence would not arise and the bar under the proviso has no application to the present facts of the case. 20. Therefore, I find no ground to reject the amendment, but the Trial Court on erroneous appreciation of facts passed an order under challenge. 21. Hence, the civil revision petition is allowed, setting aside the order in I.A .No.851 of 2013 in O.S. No.1088 of 2007 dated 02.09.2014 passed by the IV Additional District Judge, Ranga Reddy District at L.B Nagar, granting leave to the petitioner to amend the plaint as prayed in the petition, subject to compliance of other requirements like payment of Court fee etc and on carrying out such amendment, the respondents are entitled to file their additional written statement. 22. In the result, the civil revision petition is allowed. 23. Consequently, miscellaneous petitions pending if any, shall also stand closed. No costs.