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2019 DIGILAW 1015 (PNJ)

Bakhshish Singh v. Amar Singh

2019-04-01

RAJ MOHAN SINGH

body2019
JUDGMENT Raj Mohan Singh, J.(Oral) - Petitioner has filed the present revision against the order dated 18.4.2018 passed by the Additional Civil Judge (Sr.Divn.) Tarn Taran, vide which the application filed by the petitioner for amendment of the plaint was dismissed. 2. Perusal of the record would show that the application filed by the plaintiff/petitioner under Order I Rule 10 CPC was allowed by the trial Court on 2.8.2018. The said order has not been assailed by the defendant in any manner. The necessary amendment arising out of acceptance of application under Order I Rule 10 CPC vis-a-vis the person who has been allowed to be impleaded is sought to be made under Order VI Rule 17 CPC. Since the application has been allowed on 2.8.2018, the only surviving prayer is in respect of claim No. A in the head note, which is sought to be amended by mentioning total land and khasra number in the suit. 3. It is a settled principle of law that all bonafide amendments are to be allowed. An amendment in the pleadings is to be liberally construed so as to consider real controversy between the parties and to give the verdict more satisfactorily. The proviso to the Rule to some extent curtails absolute discretion of the Court to allow amendment at any stage, however knowledge and diligence are the considerations on which bona fides of the party has to be tested in order to prevent frivolous applications for amendment. The object of the Rule is that the Court must try the merit of the case and allow all amendments which may be necessary for determination of real controversy between the parties. In this regard reference can be made to Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (Dead) and ors., (2007) 6 SCC 737 and Rajesh Kumar Aggarwal vs. K.K. Modi, AIR 2006 SC 1647 . 4. Order VI Rule 17 CPC is in two parts. First part is discretionary and leaves it to the Court to order amendment in the pleadings. Second part is imperative and enjoins the Court to allow all amendments which are necessary for determining real issue between the parties. 4. Order VI Rule 17 CPC is in two parts. First part is discretionary and leaves it to the Court to order amendment in the pleadings. Second part is imperative and enjoins the Court to allow all amendments which are necessary for determining real issue between the parties. The first condition for the amendment is that it should not be unjust and result in prejudice against the opposite party and could not be compensated in terms of cost or would deprive the opposite party for a valuable right which has accrued to him with the passage of time. 5. The second condition is that the amendment should be perceived by the court to be necessary for just decision of the case. All amendments are to be allowed which satisfy the aforesaid two conditions. Amendment can be refused, if such a prayer is barred by time or where the opposite party would suffer irreparable loss which could not be compensated in terms of cost(s). The Court can allow the amendment at any stage of proceedings for the purposes of determining real issues between the parties. The whole object of the provision is to avoid multiplicity of litigation, however no such amendment should be allowed which may result in material prejudice to the opposite party and is not capable of being compensated in terms of cost(s). 6. Before the amendment can be allowed, the Court should satisfy itself where such an amendment is necessary for determining real issues in controversy. If such condition is not satisfied, the amendment cannot be allowed. This is the basic test which governs the discretion of the Court in granting or refusing the amendment. The other consideration which governs the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. 7. Ordinarily, if other side is compensated with cost(s), then there is no injustice, but if irreparable loss is caused to the opposite side, then such amendment cannot be granted. Amendments of written statement is more liberally construed than the amendment in the plaint. The purpose for imposing cost is to discourage mala fide amendments which are designed to delay the legal proceedings. Secondly the cost(s) is to compensate the opposite party for the delay and inconvenience caused to it. Amendments of written statement is more liberally construed than the amendment in the plaint. The purpose for imposing cost is to discourage mala fide amendments which are designed to delay the legal proceedings. Secondly the cost(s) is to compensate the opposite party for the delay and inconvenience caused to it. In a way it is intended to send a positive message to the parties to be careful while drafting the original pleadings. While granting or rejecting the amendment, following principles are required to be considered:- a. The amendment sought to be made should be imperative for effective adjudication of the matter. b. The amendment should be bona fide. c. The amendment should not cause such prejudice to the opposite party which cannot be compensated in terms of adequate cost(s). d. The proposed amendment should not change nature and character of the suit. 8. As a Rule the Court should reject such amendment if fresh suit on intended cause of action is barred by limitation on the date of filing of application for amendment. The provisions are only illustrative and not exhaustive. It is a very serious judicial exercise and should not be undertaken in a casual manner. The Court should not refuse bona fide and legitimate amendment and at the same time should not allow mala fide or dishonest amendment. The stage of the litigation is also a relevant factor for allowing or rejecting the amendment in the pleadings. 9. This is one of the most misused provision in the civil code for dragging the proceedings indefinitely, particularly in the Indian Courts which are otherwise heavily burdened with pending cases. Therefore, the exercise in terms of Order VI Rule 17 CPC should be done with a great caution and should be exercised sparingly. In Revajeetu Builders and Developers vs. Narayanaswami and sons and others, (2010) 1 RCR (Civil) 27 , the Hon'ble Apex Court has highlighted the aforesaid principles to be followed meticulously. 10. In Abdul Rehman and another vs. Mohd. Ruldu and others, (2012) 4 RCR (Civil) 481 , the Hon'ble Apex Court has held that the power to allow amendment is wide enough to be exercised at any stage of the proceedings in the interest of justice. The basic purpose of allowing the amendment is to minimise the litigation. However, the relief which has become time barred cannot be inserted by way of amendment. The basic purpose of allowing the amendment is to minimise the litigation. However, the relief which has become time barred cannot be inserted by way of amendment. The power of amendment should be exercised in the larger interest for doing full and complete justice to the parties and it should be allowed, if the same subserves the cause of justice and avoids further litigation. The original provision was deleted by the Amendment Act 46 of 1999, however it was again restored by the Amendment Act 22 of 2002, wherein a proviso was added to prevent application for amendment after the trial has commenced, unless the Court is satisfied that inspite of due diligence, the parties could not have raised the matter before the commencement of trial. The proviso to some extent curtails absolute discretion of the Court to allow the amendment at any stage. If the application is filed after commencement of the trial, it has to be shown that inspite of due diligence, it could not have been filed earlier. The object of the Rule is that the Court should try the merits of the case for determining the real issue between the parties, provided it does not cause prejudice to the opposite party. The power to allow the amendment is wide and can be exercised at any stage of litigation. The principles were reiterated by the Hon'ble Apex Court in J. Samuel and others vs. Gattu Mahesh and others, (2012) 1 RCR (Civil) 903 . 11. The amendment sought by the party should not be based on falsehood. If the basis for seeking amendment is proved to be false, such an amendment cannot be allowed. If prima facie, the statement made in the application for amendment is not proved to be correct, then such disputed pleadings cannot be allowed to be inserted in the pleadings by way of amendment. The Hon'ble Apex Court in Mashyak Grihnirman Sahakari Sanstha Maryadit vs. Usman Habib Dhuka, (2013) 2 RCR (Civil) 965 has held that if prima facie the statement made in the application for amendment is proved to be incorrect the amendment should be rejected. 12. However, it is equally important to see that the amendment can be allowed before the commencement of trial and not after that in routine manner. 12. However, it is equally important to see that the amendment can be allowed before the commencement of trial and not after that in routine manner. It is the primary duty of the Court to decide as to whether the amendment sought after commencement of the trial goes to the roots of the case or the same is malafide. The proviso inserted by way of amendment has to be meticulously followed and the Court should allow the amendment before the commencement of the trial. The proviso of Order VI Rule 17 CPC has been couched in a mandatory overtone. In Vidyabhai and others vs. Padmalatha and another, (2009) 1 RCR (Civil) 763 , the Hon'ble Apex Court while relying upon Baldev Singh vs. Manohar Singh, (2006) 3 RCR (Civil) 844 , Kailash vs. Nanhku and ors., (2005) 4 SCC 480 , and Rajesh Kumar Aggarwal's case (supra) has reiterated the aforesaid facts. 13. However, the jurisdiction of the Court to allow amendment has to be based on the condition precedent that it must come to the conclusion that in spite of due diligence, the parties could not have raised the matter before commencement of the trial. In a way conditional reservoir exists in the form of due diligence, if the party is sufficiently prevented from raising the matter before commencement of the trial. The restriction provided by the proviso is an embargo on the exercise of jurisdiction by the Court. Thus, unjust jurisdictional fact, as envisaged therein is found to be existing, the Court will have no jurisdiction to allow amendment in the plaint. 14. The proviso has already been upheld in Salem Advocate Bar Association vs. Union of India, (2005) 3 RCR (Civil) 530 . The amendment at a belated stage cannot be declined merely because it is sought at a belated stage. The amendment can be allowed, if it satisfies the aforesaid ingredients and is found to be necessary for deciding the real controversy between the parties. The Hon'ble Apex Court in Surinder Kumar vs. Makhan Singh, (2010) 1 Apex Court Journal 0078 has held that the discretion under Order VI Rule 17 CPC is an unfettered discretion conferred upon the Courts to allow amendment in the pleadings on such terms and conditions as it appears to the Court to be just and proper. 15. The Hon'ble Apex Court in Surinder Kumar vs. Makhan Singh, (2010) 1 Apex Court Journal 0078 has held that the discretion under Order VI Rule 17 CPC is an unfettered discretion conferred upon the Courts to allow amendment in the pleadings on such terms and conditions as it appears to the Court to be just and proper. 15. The delay in making the application for amendment cannot be a ground to refuse the same. The Court must do full and complete justice between the parties subject to payment of adequate cost(s) to the party opposite, if no prejudice beyond repair is caused to the opposite party. The Hon'ble Apex Court held in the aforesaid manner while relying upon B.K.N. Pillay vs. P. Pillay, (2013) CCC 165 , Supreme Court. 16. Taking into consideration the totality of facts and circumstances, I deem it appropriate to allow this revision petition by allowing the petitioner to incorporate claim No.A of the head note by mentioning the total land and khasra number. 17. Such a relief would be in consonance with the acceptance of the application under Order I Rule 10 CPC. Petition stands disposed of accordingly.