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2018 DIGILAW 2197 (JHR)

Dulwa Devi v. Kumar Nalin Singh

2018-10-03

SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - The petitioner who is defendant in Eviction Suit No. 08 of 1984 is aggrieved of order dated 28.02.2014 by which amendment in the plaint has been permitted by the appellate Court. 2. Plea urged on behalf of the defendant is that about 30 years after the suit was instituted, amendment in the plaint cannot be permitted. 3. The learned counsel for the petitioner submits that not only there was inordinate delay in seeking amendment in the plaint, the matter has travelled to this Court previously and while so, the parties must be bound by their initial pleadings. 4. Initially, Eviction Suit No. 08 of 1984 was decreed vide judgment dated 17.08.1985, however, on the petition of the defendant which was registered as Civil Revision No. 378 of 1985 (R) the judgment dated 17.08.1985 passed in Eviction Suit No. 08 of 1984 was set-aside and the matter was remanded back to the trial Judge. Now, the suit has been dismissed and the plaintiff has preferred Eviction Appeal No. 02 of 2012. The plaintiff has laid a claim over the suit property by virtue of a registered sale-deed dated 18.08.1980. The plaintiff has pleaded that he has purchased the house along with the land comprised under Plot Nos. 2461 and 2304 but due to a typographical error in the plaint Plot No. 2465 was wrongly mentioned which now he seeks to amend. 5. The proposed amendments read as under : "(1) In para no. 1 of the plaint in the fourth line the plot no. 2465 be penned through and in its place plot no. 2461 be written. (2) In the Schedule of plaint existing plot no. 2464 and 2305 be penned thorough and in its place plot no. 2461 and plot no. 2304 be written. (3) In the Schedule of the plaint after the word and number Khata no. 3 and before the word within the following word be written. " Village Redma Tola Belwatika". 6. Order VI Rule 17 CPC which permits amendment in the pleadings at any stage of the proceedings is founded on the principles of equity, justice and good conscience. Order VI Rule 17 CPC provides that the court may permit either party to amend his pleadings at any stage of the proceedings, however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. Order VI Rule 17 CPC provides that the court may permit either party to amend his pleadings at any stage of the proceedings, however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. It provides that if amendment in the pleadings is necessary for the purpose of determining the real question in controversy between the parties, all amendments in the pleadings can be permitted on such terms as the court may deem just and proper. After Order VI Rule 17 CPC was amended by the Code of Civil Procedure Amendment Act, 2002 and a proviso was inserted therein, further limitation has been put on powers of the court to permit amendment in the pleadings. It provides that no application for amendment shall be allowed after the trial has commenced and by now it is well-settled that proviso to Order VI Rule 17 CPC is mandatory. However, proviso to Order VI Rule 17 CPC itself carves out an exception. It provides that if inspite of due diligence the matter could not have been raised by the parties before the commencement of trial, amendment in the pleadings can be permitted. In " Salem Advocate Bar Association, T.N. Vs. Union of India , (2005) 6 SCC 344 " , the scope of proviso to Order VI Rule 17 CPC has been discussed by the Supreme Court in the following words: 26. .... "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." 7. The expression "real question in controversy between the parties" in Rule 17 CPC must be examined in the context of initial pleadings of the parties. It is only such amendment which shall have a co-relation to the initial pleadings of the parties and which is necessary for adjudicating the real question in controversy that can be permitted; of course subsequent developments, if necessary, also can be incorporated through amendment in the pleadings. 8. It is only such amendment which shall have a co-relation to the initial pleadings of the parties and which is necessary for adjudicating the real question in controversy that can be permitted; of course subsequent developments, if necessary, also can be incorporated through amendment in the pleadings. 8. It is not in dispute that through the registered sale-deed dated 18.08.1980 the land comprised under Plot No. 2461 has been transferred to the plaintiff and the sale-deed dated 18.08.1980 has been marked as Ext. 5/a during the trial and while so, if the typographical mistake in the plaint is not permitted to be corrected, it would bring contradiction in the pleadings and the document produced by the plaintiff [refer " Usha Devi Vs. Rijwan Ahamd and Others , (2008) 3 SCC 717 " ]. This has also to be kept in mind that the suit is a suit for partition and existence of the suit property is not in dispute. The appellate Court has observed that in the written statement any dispute on plot numbers has not been raised, what has been disputed is the genuineness of the sale-deed dated 18.08.1980. In the above facts, the appellate Court has rightly permitted the amendment in the pleadings. 9. May be, there was delay on the part of the plaintiff in seeking amendment in the plaint, in the above facts, no interference is required with the impugned order dated 28.02.2014 by which the appellate Court has permitted amendment in the plaint, however, for default the plaintiff is saddled with cost of Rs. 10,000/- which shall be paid to the petitioner herein within four weeks. 10. The writ petition stands disposed of.