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2020 DIGILAW 219 (ALL)

Vipin Kumar v. District Judge Gonda Distt. Gonda

2020-01-21

ALOK MATHUR

body2020
JUDGMENT : 1. At the very outset learned counsel for the petitioner prays for deletion of respondents No.1 and 2. The prayer is allowed and the parties are renumbered and respondent Nos. 3 and 4 be read as respondent No.1 and 2. 2. Heard Sri M.G. Tripathi, learned counsel for the petitioner. 3. In the light of the proposed order notice to respondents is dispensed with. 4. Petitioner has approached this court challenging the order dated 23.10.2019 passed by District Judge, Gonda in Civil Revision No.20 of 2019 wherein the challenge was made by the petitioner to the order of Civil Judge (Senior Division) dated 11.3.2019 thereby rejecting the objection against the application for taking on record the written statement filed by respondent No.1. 5. The facts in brief of the present controversy are that petitioner and respondent No.2 are real brothers as father of petitioner and respondent No.2, namely, Kishori Lal son of Rameshwar Prasad was married with one namely Smt. Cheelha Devi and out of the said wedlock three sons, namely, Ram Khelawan, Shyam Lal and Chhottan Lal were born. After the demise of Smt. Cheelha Devi Sri Kishori Lal again married with Chhammi Devi and out of the said wedlock two sons namely Krishna Gopal and Harihar were born. It has further been submitted that the sons born out of the wedlock of Smt. Cheelha Devi settled themselves in the life time of Kishori Lal and further that one son, namely, Krishna Gopal passed away during life time of Kishori Lal. The father of the petitioner divided the share of not only the petitioner, opposite party No.2 and other brothers by means of a will deed executed by father of the petitioner. 6. It has further been submitted that father of the petitioner executed another will deed on 20.1.1982 jointly in favour of the petitioner, opposite party No.2 and Smt. Chhammi Devi (mother of the petitioner) providing only usefructory rights to the mother of the petitioner and, a such, she was not entitled to transfer her share. It has further been submitted that Smt. Chhammi Devi had herself executed a will deed in favour of the petitioner and opposite party No.2. The controversy in the present case has arisen out of the fact that opposite party No.2 got an agreement executed on 20.7.1988 by Smt. Chhammi Devi-his mother in his favour. It has further been submitted that Smt. Chhammi Devi had herself executed a will deed in favour of the petitioner and opposite party No.2. The controversy in the present case has arisen out of the fact that opposite party No.2 got an agreement executed on 20.7.1988 by Smt. Chhammi Devi-his mother in his favour. All these facts was never disclosed to the petitioner. Petitioner on coming to know of the said agreement dated 20.7.1988 filed a suit bearing No.472 of 2004. On receiving summons opposite party Nos. 1 and 2 jointly filed written statement on 20.12.2005 in opposition to the suit filed by the petitioner. 7. Opposite party No.1 subsequently moved an application seeking leave of the court to file additional written statement in January, 2016 against which petitioner has filed his objection along with an affidavit on 28.9.2016. The objections of the petitioner were that the only reason behind moving additional written statement was only to prolong the matter and keeping the same pending. In the meanwhile, the petitioner also approached this Court by filing a writ petition seeking direction from this Court for expeditious decision of the suit and by means of the order dated 21.1.2019 this Court directed the trial court to make an earnest endeavor to decide the suit within a period of one year if there is no other legal impediment. The application for filing of the additional written statement was considered by the Civil Judge (Senor Division), Gonda and by means of the order dated 11.3.2019 the same was allowed. The application preferred by the respondents had stated that the earlier written statement was filed when both of them were on good terms and relationship and subsequently, the relations got sour. There was material change in the circumstances which necessitated filing of the aforesaid additional written statement. All these grounds was duly accepted by the Civil Judge (Senior Division), Gonda and the additional statement was taken on record. 8. The petitioner being aggrieved by the order dated 11.3.2019 preferred a revision before learned District Judge which was registered as Revision No.20 of 2019. Before the District Judge, the petitioner canvased all his grievance and submitted that as per the provisions of Order 6, Rule 17 of CPC at such advanced stage of proceedings application for taking additional written statement could not be allowed. 9. Before the District Judge, the petitioner canvased all his grievance and submitted that as per the provisions of Order 6, Rule 17 of CPC at such advanced stage of proceedings application for taking additional written statement could not be allowed. 9. While rejecting the revision filed by the petitioner learned District Judge has taken notice of this fact that the relationship between respondent No.1 and 2 has changed materially. When earlier written statement was filed by respondent Nos. 1 and 2 they were living jointly and subsequently their relationship became strained, therefore, to protect their interest it was necessary for respondent No.1 to file additional statement and these developments having come into existence subsequent to filing the first written statement and it was necessary to bring this affidavit on record. The petitioner being aggrieved by the acceptance of additional written submissions has preferred the instant writ petition. 10. To decide this controversy it is relevant to go through the provisions of Order 6 Rule 17 of CPC amended which reads as under:- "17. Amendment of pleadings-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 amendment shall be made as may be necessary for the purpose of determining the real questions 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." 11. A perusal of the said provision clearly indicate that the court at any stage of the proceedings can 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 questions in controversy between the parties. 12. The proviso provides that any 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 parties could not have raised the matter before the commencement of the trial. 13. It will be relevant to consider the judgment of Hon'ble Supreme Court in the case of Estralla Rubber Vs. 13. It will be relevant to consider the judgment of Hon'ble Supreme Court in the case of Estralla Rubber Vs. Dass Estate (P) Ltd, (2001) 8 SCC 97 in which in para 8 it has been held as under:- "It is fairly settled in law that the amendment of pleadings under Order 6, Rule 17 is to be allowed if such "It is fairly settled in law that the amendment of pleadings under Order 6, Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of plaintiff, depending on facts and circumstances of a given case. In certain situations a time barred claim cannot be allowed to be raised by proposing an amendment to take away valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cost serious prejudice to the opposite side. This Court in recent judgment in B.K. Narayana Pillai vs. Parameswaran Pillai and another [ (2000) 1 SCC 712 ], after referring to number of decisions, in para 3 has stated, thus: - "3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that 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 the costs. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that 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 the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation." In para 4 of the same judgment this Court has quoted the following passage from the judgment in A.K. Gupta and Sons Ltd. Vs. Damodar Vally Corporation [ 1966 (1) SCR 796 ]:- "The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal [(1887) 19 QBD 394 : 56 LJ QB 621]. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan [ AIR 1921 PC 50 : ILR 48 Cal 110] and L.J. Leach and Co. Ltd. V. Jardine Skinner and Co. [ AIR 1957 SC 357 : 1957 SCR 438 ]." This Court in the same judgment further observed that the principles applicable to the amendment of the plaint are equally applicable to the amendment of the written statement and that the courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event. It is further stated that the defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice and that any admission made in favour of the plaintiff conferring right on him is not withdrawn." 14. It is further stated that the defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice and that any admission made in favour of the plaintiff conferring right on him is not withdrawn." 14. In the light of the above discussions it is clearly borne out that application under Order 6 Rule 17 CPC can be moved at any stage of the proceedings, only such evidence can be brought on record which are not within the knowledge of the parties at the time when the pleadings were filed. It is needless to say that first written statement was brought on record when the said relationship between respondent No.1 and 2, who had jointly filed the same, was quite good, but subsequently the relationship having become strained which was a subsequent development and this fact not having been denied by the petitioner, it cannot be said that this fact could have been brought on record at an earlier point of time. 15. In view of the observations in the above mentioned judgment of Hon'ble Supreme Court and the discussions made hereinabove, there is no error in exercise of the discretion in accepting the written statement by the Civil Judge (Senior Division), Gonda, who has considered all the facts and circumstances necessary in allowing the application. The District Judge has also considered all these circumstances and arguments raised by the petitioner and no infirmity could be pointed out in any of the facts or points decided by him. I do not find any infirmity in the order of learned District Judge. The petition is without merits and is hereby dismissed. 16. Needles to say that after acceptance of the additional written statement, learned Civil Judge (Senior Division), Gonda shall proceed to decide the revision expeditiously and shall make earnest endeavor to decide the same within a period of one year from the date a certified copy of this order is placed before him, if there is no other legal impediment. 17. The petition is dismissed.