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2020 DIGILAW 258 (UTT)

Praveen Kumar v. Kalam Singh (deceased)

2020-06-24

LOK PAL SINGH

body2020
JUDGMENT Lok Pal Singh, J. - Instant civil revision, preferred under section 115 of CPC, is directed against the order dated 12.01.2016 passed by Civil Judge (Senior Division), Dehradun, whereby the amendment application filed by the revisionists/plaintiffs under Order 6 Rule 17 of CPC has been dismissed. 2. Factual matrix of the case is that the revisionists/plaintiffs filed a suit being O.S. No.43 of 2014 to declare the sale deeds dated 11.05.2009 and 22.04.2013 as null and void, as well as, for a decree of perpetual prohibitory injunction. On presentation of suit, notices were issued to the respondents/defendants, who filed an application under Order 7 Rule 11 of CPC for rejection of plaint. Revisionists/plaintiffs filed their objections to the said application. Thereafter, the revisionists/plaintiffs moved an application under Order 6 Rule 17 of CPC seeking certain amendments in their objections. Respondents/defendants filed their objections to the amendment application. Learned trial court, after hearing the parties, dismissed the amendment application vide its order dated 10.12.2015. This order is not challenged. Thereafter, the revisionists/plaintiffs moved an application seeking amendment in the plaint, thereby praying that after paragraph 11 in the plaint, following paragraph 11-A may be added:- image 3. Respondents/Defendants filed their objections to the amendment application stating that the plaintiffs are not the recorded tenure holders; earlier also amendment application was filed by the plaintiffs which has been rejected by the court; the amendment sought is not imperative for proper and effective adjudication of the suit and has been filed in order to cure the defects; and the amendment application is not legally maintainable. 4. After hearing the parties, learned trial court, vide the impugned order dated 12.01.2016, dismissed the application. While doing so, the trial court recorded a finding that the amendment sought by the plaintiffs is not necessary and the amendment application has been moved by the plaintiffs only after the application was filed by the defendants under Order 7 Rule 11 of CPC, which shows the ill-intention of the plaintiff to keep the suit pending. 5. Before any discussion, it would be apt to discuss Order VI Rule 17 of C.P.C., which is as follows:- "17. 5. Before any discussion, it would be apt to discuss Order VI Rule 17 of C.P.C., which is as follows:- "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 amendments 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." 6. A perusal of provision of Order VI Rule 17 of CPC makes it clear that the Court is conferred with the power to allow the amendment of the pleadings at any stage of the proceedings, if the Court is of the view that such amendment is necessary for the purpose of determine the real questions in controversy between the parties and to do the substantial justice. However, proviso appended to Rule 17 imposes a limitation that no application for amendment shall be allowed after the trial has commenced, however, it has been left upon the Court to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. It is settled proposition in law that the amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in a larger interest to do the substantial justice to the parties before the Court. 7. The Hon'ble Apex Court in Revajeetu Builders and Devlopers vs. Narayanaswamy & Sons & others, 2009 10 SCC 84 , has laid down certain basic principles, which should be taken into consideration while allowing or rejecting the application for amendment. It was held in para-63, which is quoted hereunder:- "63. 7. The Hon'ble Apex Court in Revajeetu Builders and Devlopers vs. Narayanaswamy & Sons & others, 2009 10 SCC 84 , has laid down certain basic principles, which should be taken into consideration while allowing or rejecting the application for amendment. It was held in para-63, which is quoted hereunder:- "63. On critically analyzing 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 bonafide 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 VI 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." 8. Hon'ble Apex Court in B.K. Narayana Pillai vs. Parameswaran Pillai and Another, 2000 1 SCC 712 , has held that while deciding the prayer for amendment, the Court should not adopt a hyper technical approach for the simple reason that the technicalities of law should not be permitted to hamper the administration of justice between the parties. An effort should be made to avoid uncalled for multiplicity of litigation. The Court should also consider as to whether the amendment is necessary to adjudicate the dispute between the parties. 9. An effort should be made to avoid uncalled for multiplicity of litigation. The Court should also consider as to whether the amendment is necessary to adjudicate the dispute between the parties. 9. In the case at hand, a perusal of amendment application would reveal that the amendment sought in the plaint is explanatory in nature and is imperative for proper and effective adjudication of the case. Neither it changes the nature of the suit nor does it cause any prejudice to the respondent. Moreover, trial has not commenced as yet and the suit is fixed for hearing on the application moved by the defendants under Order 7 Rule 11 CPC. The trial court has committed illegality in dismissing the impleadment application, and no reason whatsoever has been assigned for doing so, except that the amendment is not necessary. The order passed by the trial court is cryptic. It is settled proposition of law that reasons to record in a judgment are life of law and in absence thereof, judgment cannot be said to be legal. Reference may be made to State of Uttaranchal vs. Sunil Kumar Vaish, 2011 8 SCC 670 . 10. In the light of aforesaid, civil revision is allowed. Impugned order dated 12.01.2016 is hereby set-aside. Amendment application moved by the plaintiffs is allowed. Let amendment be incorporated in the plaint. Defendants may file their additional written statement within 30 days from the date amendment is incorporated in the plaint. 11. No costs.