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2019 DIGILAW 463 (JHR)

Akhouri Sujit Sinha v. Chhabi Sahu

2019-02-14

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 227 of the Constitution of India, wherein the order dated 17.03.2017 passed in Title Suit No.75 of 2013 is under challenge, whereby and whereunder, petition under Order VI Rule 17 has been preferred, by which the plaintiff no.1 has been allowed to be represented through plaintiff No.3 on the ground of unsoundness of mind. 2. It has been contended by learned counsel for the petitioner that the amendment, sought for, is not proper because the nature of the suit will change, the suit is for cancellation of sale deed, which has been executed by the plaintiff No.1 and, therefore, if the plaintiff No.1 would be allowed to be represented through plaintiff No.3, the suit would be said to be decided at this stage only and, therefore, the impugned order allowing the amendment, is not proper and hence the same may be set aside. He further submits that the trial court has not appreciated the fact that the plaintiff No.1 has put his signature in the written statement and, therefore, it cannot be said that he is of mind of unsoundness. 3. Having heard learned counsel for the petitioner and after going across the pleading made in the writ petition as also the impugned order, the factual aspect involved in the writ petition is that a suit, for cancellation of sale deed No.3229 dated 26.08.2013, has been filed by the plaintiffs, being Title Suit No.75 of 2013. It is evident from the plaint of the suit that the ground for cancellation of the aforesaid sale deed is that the plaintiff No.1, who has executed the sale deed, is a mind of unsoundness and suffering from psychiatric decease. 4. The plaintiffs have filed one amendment petition seeking therein leave of the Court to represent the plaintiff No.1 through plaintiff no.3, since the plaintiff no.1 is mind of unsoundness and suffering from psychiatric decease, the said application has been allowed, vide impugned order, which is under challenged in this writ petition. 5. 4. The plaintiffs have filed one amendment petition seeking therein leave of the Court to represent the plaintiff No.1 through plaintiff no.3, since the plaintiff no.1 is mind of unsoundness and suffering from psychiatric decease, the said application has been allowed, vide impugned order, which is under challenged in this writ petition. 5. It is evident from the impugned order that the trial court has taken into consideration the fact that there is specific averment in the plaint at paragraph-9 to the effect that the plaintiff no.1 is of unsoundness of mind and also a psychiatric patient and also reference of the paragraph-6 of the plaint has been made, wherein it has been stated that the plaintiff no.2 is minor and, therefore, the petition under Order VI Rule 17 has been allowed. 6. This Court before going into the illegality and propriety, thinks it proper to rebut the provision of Order VI Rule 17 which speaks as under:- “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 question in controversy between the parties; Provided 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.” 7. It is evident from the provision of Order VI Rule 17 of the C.P.C that the amendment can be allowed by the trial court at any stage of the trial, subject to condition that the same may not change the nature of the suit. The amendment sought for, does not suffer from the limitation, however after the amendment in the CPC, with effect from 01.07.2002 the insertion of the word “due diligence” has come, the further scope of the petition under Order VI Rule 17 of the C.P.C, if the trial has not commenced, meaning thereby, the issue has not been framed then amendment can be allowed, since the party may not suffer, reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of, which is as under: Rajkumar Gurawara (Dead) Through LRS. Vs. Vs. S. K. Sarwagi And Company Private Limited And Another, (2008) 14 SCC 364 , Para-18 18. 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 in 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. Rajkumar Gurawara (Dead) Through LRS. Vs. M/s. S. K. Sarwagi & Company Private Limited And Another, AIR 2008 SC 2303 , Para -5. Order VI, Rule 17 C.P.C. confers jurisdiction on the Court to allow either, party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. The opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. Revajeetu Builders And Developers Vs. Narayanaswamy And Sons And Others, (2009) 10 SCC 84 , Para 63 63. Revajeetu Builders And Developers Vs. Narayanaswamy And Sons And Others, (2009) 10 SCC 84 , Para 63 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. Rameshkumar Agarwal Vs. Rajmala Exports Private Limited And Others, (2012) 5 SCC 337 , Para 21 21. 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 hypertechnical 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. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical 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. In the facts of the case, it is evident that the averment regarding unsoundness of mind and suffering from psychiatric decease of the plaintiff no.1 has been taken and further it is evident that the suit was pending for framing the issues, as such allowing amendment before commencement of trial cannot be said to suffer from error since no prejudice will be caused to the other side, since they will get an opportunity to rebut the same. The Court after taking into consideration the nature of amendment, sought for, in order to reach the conclusive finding, has allowed the said amendment keeping in view to avoid multiplicity of proceeding. 9. This writ petition has been filed under Article 227 of the Constitution of India. It is settled position of law that the High Court sitting under Article 227 of the Constitution of India in its revisional limited jurisdiction as has been conferred to this Court under Article 227 of the Constitution of India. 10. This Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Hon’ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 11. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 12. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. 13. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. 14. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 15. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. 15. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. 16. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. 17. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 18. In view of the settled position of law so far as the scope of provision of Order VI Rule 17 of the C.P.C is concerned and the jurisdiction of the High Court under Article 227 of the Constitution of India, according to the considered view of this Court, the Trial Court has not committed any illegality by allowing the amendment, warranting to exercise revisional power under Article 227 of the Constitution of India. 19. Accordingly, the writ petition fails and is dismissed.