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Uttarakhand High Court · body

2018 DIGILAW 198 (UTT)

Jameel Ahmad v. Rajendra Kumar

2018-04-12

MANOJ K.TIWARI

body2018
JUDGMENT : Manoj K. Tiwari, J. 1. Heard learned counsel for the parties and perused the record. 2. This is defendant’s petition against the order dated 25.11.2017 passed in Original Suit No. 234 of 2014 by learned 1st Additional Civil Judge (S.D.), Haridwar. By the said order, learned trial court had allowed plaintiff’s amendment application under Order 6 Rule 17 of C.P.C. on payment of cost of Rs.700/- (Rupees Seven Hundred Only). 3. Brief facts of the case are as under:- Respondent/plaintiff No. 1 – Rajendra Kumar had filed a suit for specific performance against petitioner and respondent No. 2 alleging that a registered agreement to sell was executed by the defendants on 20.03.2012 in favour of plaintiff/respondent No. 1, however, defendants are now avoiding to execute sale deed in terms of the said agreement. The defendants filed their written statement and thereafter issues were settled. At this stage, plaintiff moved an application under Order 6 Rule 17 of C.P.C. for amending the plaint, whereby he sought permission for adding the expression “and Willing” after the expression “Ready” in para 7 of the plaint and certain other amendments were also sought, which, in my opinion, are clarificatory in nature. In the amendment application, it was stated that due to mistake by the earlier counsel, certain averments, which ought to have been made, could not be made. 4. Learned trial court allowed the amendment application vide order dated 25.11.2017 subject to payment of cost of Rs.700/- (Rupees Seven Hundred Only). Petitioner challenged the said order by filing a revision petition before learned District Judge, which was registered as Miscellaneous Case No. 2 of 2017. Learned District Judge, Haridwar dismissed the said revision as not maintainable. 5. By means of this petition, under Article 227 of the Constitution of India, both these orders have been challenged by the petitioner. 6. It is settled position in law that liberal approach should be adopted by the courts while considering application for amendment, particularly in cases where other side can be compensated with cost. Normally amendments are allowed in the pleading to avoid multiplicity of litigation. The Hon’ble Supreme Court in para 15 of the judgment rendered in L.C. Hanumanthappa Vs H.B. Shivakumar reported in (2016) 1 SCC 332 approved the judgment rendered by Bombay High Court in the year 1909 in Kisandas Rupchand Vs Rachappa Vithoba Shilwant reported in ILR (1909) 33 Born 644. The Hon’ble Supreme Court in para 15 of the judgment rendered in L.C. Hanumanthappa Vs H.B. Shivakumar reported in (2016) 1 SCC 332 approved the judgment rendered by Bombay High Court in the year 1909 in Kisandas Rupchand Vs Rachappa Vithoba Shilwant reported in ILR (1909) 33 Born 644. Para 15 of the judgment rendered by Hon’ble Supreme Court is extracted below:- “As early as in the year 1900, the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644 (1909), held as follows:- “... 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... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that 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. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?” 7. The Hon’ble Supreme Court in the case of Rameshkumar Agarwal Vs Rajmala Exports (P) Ltd. reported in (2012) 5 SCC 337 has reiterated that while considering the application for amendment, the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. Para 21 of the said judgment is extracted below:- “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. Para 21 of the said judgment is extracted below:- “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 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.” 8. Similar view has been taken by Hon’ble Apex Court in Raj Kumar Vs Dipender Kaur Sethi reported in (2005) 9 SCC 304 . In the said case, a suit for temporary injunction was permitted to be converted to a suit for specific performance by an amendment in the plaint. Thereafter, by another application, plea of “readiness” and “willingness” was sought to be added in the plaint, which was allowed by trial court. The order of the trial court allowing second amendment was affirmed by the Hon’ble Supreme Court. Para 9 of the said judgment is extracted below:- “In our view, therefore, the trial court was justified in permitting the second amendment and the High Court was not right in allowing the revision petition there against for the reason that the suit had already been converted into a suit under the Specific Relief Act within the period of limitation and, thereafter, it is only the missing averment which was introduced by para 5-A. There was no question of not complying with the law of limitation, as far as the second amendment plaint was concerned. The High Court was also not justified in not recalling the order.” 9. Similar view has been taken by Hon’ble Apex Court in the case of Mohinder Kumar Mehra Vs Roop Rani Mehra & others reported in 2018 (2) SCC 132 . Para 22 of the said judgment is extracted below:- “22. The High Court was also not justified in not recalling the order.” 9. Similar view has been taken by Hon’ble Apex Court in the case of Mohinder Kumar Mehra Vs Roop Rani Mehra & others reported in 2018 (2) SCC 132 . Para 22 of the said judgment is extracted below:- “22. The proviso to Order 6 Rule 17 CPC prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could lead evidence, the amendment application has been filed and from the order dated 14.02.2014, it is clear that the plaintiff’s case is that parties has led evidence even on the amended pleadings and the plaintiff’s case was that in view of the fact that the parties led evidence on amended pleadings, the allowing of the amendment was a mere formality. The defendant in no manner can be said to be prejudiced by the amendments since the plaintiff’s led his evidence on amended pleadings also as claimed by him.” 10. Hon’ble Supreme Court in the case of Lakhi Ram (DEAD) Through LRs Vs. Trikha Ram and Others reported in (1998) 2 SCC 720 , was dealing with a case where, trial court’s judgment was challenged in appeal on the ground that the suit for specific performance was barred by Section 16 (c) of the Specific Relief Act, 1953, as the plaintiff did not aver in the plaint that he was ready and willing to perform his part of the contract. The first appellate court allowed plaintiffs application for amending the plaint under Order 6 Rule 17 of the C.P.C. seeking introduction of the plea regarding his readiness and willingness to perform his part of the contract and the appeal was remanded to the trial court for framing appropriate issues in the light of the amended plaint. Paragraph Nos. 3 to 7 of the said judgment are extracted below:- “3. Learned counsel for the appellant raised two contentions in support of the case. Paragraph Nos. 3 to 7 of the said judgment are extracted below:- “3. Learned counsel for the appellant raised two contentions in support of the case. He firstly submitted that the proposed amendment was rightly allowed by the lower appellate court, that in a suit for specific performance of contract, the cause of action centered round inaction on the part of the vendor in complying with the agreement to sell the property, that if averment under Section 16(c) of the Specific Relief Act was not originally inserted due to oversight or otherwise by the plaintiff, he can always be permitted to amend the plaint. In support of his contention, he relied on the decision of this Court in the case of Gajanan Jaikishan Joshi vs. Prabhakar Mohanlal Kalwar reported in 1990 (1) SCC 166 . A Bench of two learned Judges of this Court speaking through Kania, J. (as he then was) made the following observations in the case: "In the present case no fresh cause of action was sought to be introduced by the amendment applied for. All that the plaintiff appellant sought to do was to complete the cause of action for specific performance for which relief he had already prayed. It was only one averment required under Section 16(c) of the Specific Relief Act to be made in a plaint in a suit for specific performance which was not made, probably on account of some oversight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. There was no fresh cause of action sought to be introduced by the amendment and hence, no question of causing any injustices to the respondent on that account arose." 4. Placing strong reliance on the aforesaid decision it was submitted that the reasonings given by the High Court in the impugned judgment cannot be sustained in view of the aforesaid authoritative pronouncement of this Court. 5. It was next contended that in any case such a grievance about grant of amendment could not have been made by Defendants 2 and 3 who are subsequent purchasers and such grievance, if at all, could have been made by the original vendor who was party to the agreement, namely, Defendant 1 and he was set ex parte all throughout in these proceedings and did not think it fit to raise such contention. Even that apart, Defendant 2 and 3 also in their written statement did not raise such a submission and no issue was framed by the trial court. In this connection, reliance was placed on a latter decision of two learned Judges of this Court in the case of Jugraj Singh v. Labh Singh & Ors. reported in 1995 (2) SCC 31 . In that case, a Bench of this Court consisting of K. Ramaswamy & N. Venkatachala, JJ. observed that the plea about Section 16(c) of the Specific Relief Act provides that the plaintiff must plead and prove that he was always ready and willing to perform his part of the essential terms of the contract. The plea is specifically available to the vendor as it is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives but not to the subsequent purchasers. Even on that basis it was submitted that Defendant 2 & 3 could not have such grievance before the High Court. 6. Learned counsel for Respondents 1 and 3 i.e Defendants 2 & 3 on the other hand submitted that even though the power to grant amendment is to be liberally exercised, if the suit itself is fatally defective on account of absence of averments as per Section 16(c) of the Specific Relief Act, it would be a stillborn suit and therefore, the amendment of the suit by introducing averments under Section 16(c) of the Specific Relief Act cannot be granted in such a totally defective suit. So far as the second submission of learned counsel for the appellant is concerned, it was submitted by learned counsel for the respondent that the reasoning given in the decision of the Court in Jugraj Singh's case in his view required a relook. So far as the second submission of learned counsel for the appellant is concerned, it was submitted by learned counsel for the respondent that the reasoning given in the decision of the Court in Jugraj Singh's case in his view required a relook. According to him the subsequent purchasers might have parted with full consideration in favour of the vendor and who would be in possession of the properties and whose contention could be that they were bone fide purchasers for value without notice and that the suit which was fatally defective and stillborn one should be dismissed and such a stillborn suit should not be permitted to be decreed. The decree in such suit would really be against them. They will be required to recovery the property to the plaintiff and even in given cases to hand over possession thereof to the plaintiff. Hence, they cannot be said to the ineligible to defend the suit on all legally permissible grounds. The original vendor might not be interested in fighting further. Consequently no such defence could ever be said to be not permissible to such subsequent purchasers. He also submitted that the subsequent purchasers step into the shoes of the vendor and whatever pleas are legally available to the vendor for meeting the case of the plaintiff would naturally be available to the subsequent purchasers as defence. 7. Having considered these rival contentions in our view, the appeal could be disposed of on the first point canvassed by learned counsel for the appellant, namely, that amendment inserting the relevant averments under Section 16(c) of the Specific Relief Act does not change the cause of action and would be legally permissible exercise as laid down by this Court in Gajanan. The ratio of the aforesaid decision squarely applies to the facts of the present case and, therefore, the decision rendered by the first appellate court allowing such amendment could not have been found fault with by the High Court in the impugned judgment. Only on this short ground the appeal will have to be allowed.” 11. Similarly, in the case of Mahila Ramkali Devi and others Vs. Only on this short ground the appeal will have to be allowed.” 11. Similarly, in the case of Mahila Ramkali Devi and others Vs. Nandram (DEAD) Through Legal Representatives and Others reported in (2015) 13 SCC 132 , while dealing with a case where an application seeking amendment in the plaint before the second appellate court was rejected by observing that the application, if allowed, will change the premises of the suit, after a lapse of more than 40 years, the Apex Court has discussed the law, on amendment of pleading, in para 20 of the judgment. Paragraph No. 20 of the said judgment is extracted below:- “20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.” 12. Sri Aditya Singh, learned counsel for the petitioner has relied upon a judgment rendered by Hon’ble Supreme court in the case of J. Samuel and Others Vs. Gattu Mahesh and Others reported in (2012) 2 SCC 300 . Relevant paragraphs cited by learned counsel for the petitioner are extracted below:- “14. Before proceeding further, it is also useful to refer Section 16(c) of Specific Relief Act which reads as under: "14. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- (a) xxx (b) xxx (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.- For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." It is clear that in a suit for specific performance of a contract, unless there is a specific averment that he has performed or has always been ready and willing to perform the essential terms of the contract, the suit filed by him is liable to be dismissed. In other words, in the absence of the abovesaid claim that he is always ready and willing to perform his part of the contract, the decree for specific performance cannot be granted by the court. 16. ….. 17. ….. 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. 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. (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 it 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. (21) In the given facts, there is a clear lack of 'due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term “typographical error” is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code. 22. … 23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6 Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications.” 13. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications.” 13. Per contra Sri Nikhil Singhal, learned counsel for the respondents submits that the aforesaid judgment relied by learned counsel for the petitioner is distinguishable on facts, as in that case, amendment application was filed after evidence of parties was closed and hearing had concluded and judgment reserved in the suit by the trial court. He submits that in the case in hand, the evidence of the parties is yet to be led, therefore, there is no similarity in facts in these two cases. He also submits that “readiness” of the plaintiff is already pleaded in the plaint and only “willingness” was sought to be added, which does not cause any prejudice to the defendant, nor it changes the nature of the suit. He further submits that it is not a case of withdrawal of an admission, which may cause any prejudice to the defendant. He further submits that grant of amendment is discretionary and learned trial court has rightly allowed its discretion holding that the case has to be decided on merits, on the basis of evidence of the parties. He further submits that Rules of Procedure are handmaids of justice and cannot be used to scuttle or subvert the cause of justice. 14. In support of his contention that the judgment relied by petitioner’s counsel is rendered in the facts of that case, learned counsel for the respondents has referred to paragraph No. 16 of the judgment rendered by Hon’ble Apex Court in the case of J. Samuel and Others Vs. Gattu Mahesh and Others reported in (2012) 2 SCC 300 . (supra). Paragraph No.16 of the said judgment is extracted below:- “16. As stated earlier, in the present case, the amendment application itself was filed only on 24.09.2010 after the arguments were completed and the matter was posted for judgment on 04.10.2010. On proper interpretation of proviso to Rule 17 of Order 6, the party has to satisfy the court that he could not have discovered that ground which was pleaded by amendment, in spite of due diligence. On proper interpretation of proviso to Rule 17 of Order 6, the party has to satisfy the court that he could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, proviso restricts that power once the trial has commenced. Unless the Court satisfies that there is a reasonable cause for allowing the amendment normally the court has to reject such a request.” 15. Learned counsel for the respondents has further placed reliance upon the judgment rendered by Hon’ble Supreme Court in the case of Sandeep Kumar Bafna Vs. State of Maharashtra and Another reported in (2014) 16 SCC 623 . The relevant portion of paragraph No.19 of the said judgment relied by learned counsel is extracted below:- “It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.” 16. I have gone through the impugned order passed by learned trial court. Learned trial court has given cogent reasons for allowing the amendment application and the defendant/petitioner has been adequately compensated through cost. Even otherwise also, no prejudice is caused to the petitioner by the said amendment. The amendment sought is only clarificatory in nature, therefore, learned trial court was justified in granting the prayer. 17. Even otherwise also, a litigant cannot be made to suffer for the mistake of his counsel, as held by the Hon’ble Supreme Court in the cases of Ghasi Ram & others Vs Chait Ram Saini & others reported in (1998) 6 SCC 200 and Lala Mata Din Vs A. Narayanan reported in (1959) 2 SCC 770. 18. In such view of the matter, I am of the considered opinion that no interference with the impugned orders is called for in exercise of supervisory powers, under Article 227 of the Constitution of India. 19. Accordingly, the writ petition fails and is hereby dismissed. No order as to costs.