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2019 DIGILAW 2801 (ALL)

Shiv Mohan Pal v. Shiv Mohan Pal Alias Hakla

2019-12-18

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard Sri S.K. Purwar, learned counsel for the petitioner. 2. The present petition seeks a prayer to set aside the order dated 13.11.2019 passed by the Additional District Judge VI Banda whereby the application, Application No. 18Ga, filed by the plaintiff seeking amendments in his plaint during the pendency of the Civil Appeal No. 101/2012 has been allowed. 3. Contention of learned counsel for the petitioner is that the amendments which are sought to be incorporated relate to certain facts which were available to be pleaded by the plaintiff at the stage of filing of the suit and as such the amendments ought not to have been allowed. 4. The order passed by the court below indicates that the amendments sought in the plaint relate to certain subsequent developments which are with regard to certain alleged constructions being raised by the defendant over the disputed land during the pendency of the appeal and as such it cannot be said that those facts were available at the time of filing of the suit. 5. As a matter of general principle all material facts and necessary particulars are required to be stated in the pleadings and the decision cannot be based on the grounds outside the pleadings but there may be situations where a party may find it necessary to amend its pleadings particularly in a case of subsequent developments which may have a material bearing on the case. 6. The object of Rule 17 under Order VI C.P.C. is that the Courts should try the case on its merits and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided the same does not cause injustice or prejudice to the other side. The basic purpose being for doing justice between the parties and not for punishing them, courts are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to the parties. The provisions for the amendment of the pleadings are therefore intended for promoting the ends of justice and not for defeating them. 7. The discretion in allowing amendments is thus to be liberally exercised so that multiplicity of proceedings are avoided and amendments which do not totally alter the character of an action should be readily granted. 8. The provisions for the amendment of the pleadings are therefore intended for promoting the ends of justice and not for defeating them. 7. The discretion in allowing amendments is thus to be liberally exercised so that multiplicity of proceedings are avoided and amendments which do not totally alter the character of an action should be readily granted. 8. The purpose and object of Order VI Rule 17 was considered in the case of Ramesh Kumar Agarwal Vs. Rajmala Exports (P) Ltd., (2012) 5 SCC 337 , and it was stated that the Courts must not refuse bona fide, legitimate, honest and necessary amendments and that liberal approach in such matters should be the general rule. The observations made in this regard are as follows : “11...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. 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.” 9. The object underlying amendment of pleadings was laid down in the case of Cropper Vs. Smith, 1884 (LR) 26 Ch D 700, in the following words : "Now I think it is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. ... Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. ... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of rights..." 10. The principle of exercising powers to grant amendments liberally was emphasized by the Privy Council in the case of Ma Shwe Mya Vs. Maung Mo Hnaung, AIR 1922 PC 249 , and it was stated as follows: “...All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised...” 11. The aforementioned proposition that amendments of pleadings for the purpose of determining the real questions in controversy between the parties are usually allowed, was restated in the judgment in the case of G.L. Baker Ltd. Vs. Medway Building and Supplies Ltd., (1958) 3 All ER 540 in the following words : “...it is a guiding principle of cardinal importance on this question that, generally speaking, all such amendments ought to be made "as may be necessary for the purpose of determining the real questions in controversy between the parties".” 12. The necessity to take notice of the subsequent events was taken note of in the case of Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and others, (1974) 1 SCC 675 , and it was held that it would be open to the Court to take notice of subsequent events if the same is necessary in order to shorten the litigation or to do complete justice between the parties. The observations made in the judgment are as follows : “10...Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. The observations made in the judgment are as follows : “10...Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate, or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties.” 13. Reference may also be had to the judgment in the case of Revajeetu Builders and Developers Vs. Narayanaswami and Sons & Ors., (2009) 10 SCC 84 wherein some of the important factors which may be kept in mind while dealing with an application filed under Order VI Rule 17 have been enumerated in the following terms: "63. On critically analysing 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 changes the 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. 64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. 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. 64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments." 14. While considering the provisions of Order VI Rule 17 the expressions “at any stage of the proceedings” and “for the purpose of determining the real questions in controversy” are important. The whole object and purpose of the aforesaid provision is to avoid multiplicity of proceedings, to shorten the litigation and to settle the dispute between the parties. It is for this purpose that the rule permits amendment at any stage of proceedings as may be necessary for the purpose of determining the real question in controversy between the parties. 15. The expression “at any stage of proceedings” is not circumscribed or limited by any condition and the legislature in its wisdom has left the same wide open without imposing any kind of limitation to its elasticity and if it is necessary for the purpose of determining the real question in controversy then amendments can be allowed at any stage of the proceedings i.e. before, during the stage of the trial, or even after judgment or in appeal. 16. The power to grant amendments of pleadings is basically intended to sub-serve the ends of justice and is not fettered by any technical limitation. The amendments in pleadings are therefore to be allowed even at the appellate stage unless any prejudice or irreparable harm is likely to be caused thereby to the opposite party. 17. In the instant case, the amendments sought relate to certain subsequent developments which may have material bearing on the dispute between the parties and the court below taking notice of the same having allowed the amendments, the order, which is sought to be assailed, cannot be faulted with. 18. This Court may also take notice of the fact that the power of superintendence conferred under Article 227 is discretionary and is to be exercised very sparingly on equitable principles. 18. This Court may also take notice of the fact that the power of superintendence conferred under Article 227 is discretionary and is to be exercised very sparingly on equitable principles. The power of interference under Article 227 by exercising this reserve and exceptional power is to be kept to the minimum and the Court exercising this power cannot act as a Court of appeal over the orders of the Court or tribunal subordinate to it. The parameters of interference by High Courts in exercise of its power of superintendence are to be guided by the principles laid down in the case of Waryam Singh and another Vs. Amarnath and another, AIR 1954 SC 215 and reiterated in Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and also in Radhey Shyam & Anr. Vs. Chhabi Nath & Ors., (2015) 5 SCC 423 19. Counsel for the petitioner has not been able to point out any material error or illegality in the order passed by the court below so as to warrant interference in exercise of power under Article 227 of the Constitution of India. 20. The petition lacks merit and is accordingly dismissed. 21. It may be clarified that the observations hereinabove have been made only for the purposes of determining the question with regard to the grant of amendments and are not to be construed in a manner so as to have any bearing on the proceedings before the court below in so far as the merits of the case are concerned.