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2022 DIGILAW 1423 (ALL)

Satish Kumar v. Kalyani Devi

2022-09-07

ABDUL MOIN

body2022
JUDGMENT : 1. Heard learned counsel for petitioner and Km. Madhurima Bhargava, learned counsel for the respondents. 2. The facts of the case have already been set forth by this Court in detail vide order dated 13.11.2018, which order for convenience, is reproduced as under:- "Heard. Issue notice to the respondent returnable at an early date. Steps be taken within 7 days. By means of the present petition, the petitioner has prayed for the following reliefs:- "1. To set aside/quash the judgment and order dated 13.9.2018 passed by the learned District Judge Lucknow in Civil Revision No.165/2018 (Satish Kumar... Vs... Smt. Kalyani) and the judgment and order dated 11.7.2018 passed by the learned Civil Judge (SD)/FTC Lucknow on Application for amendment (C-90) in Regular Suit No.249/2007 (Smt. Kalyani Devi ... Vs...Satish Kumar), contained in Annexure Nos.1 and 2 respectively to this petition as well as the order dated 5.5.2018 respectively to this petition as well as the order dated 5.5.2018 passed by the learned District Judge Lucknow in Civil Revision No.88/2018 (Satish Kumar... Vs... Smt. Kalyani) and the order dated 9.4.2018 passed by the learned Civil Judge (SD)/FTC Lucknow on Application for amendment (C-89) in Regular Suit No.249/2007 (Smt. Kalyani Devi ... Vs... Satish Kumar), contained in Annexure Nos.9 and 10 respectively to this petition. 2. To pass such other and further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. 3. Allow this petition with costs." Learned counsel for the petitioner submits that the suit was preferred by the plaintiff/respondent in the year 2007 and in the said suit judgment had been reserved on 3.2.2018. Thereafter the plaintiff/respondent preferred an application seeking amendment in the plaint by contending that on account of lack of drafting skill of the counsel for the plaintiff/respondent, no specific relief could be claimed for recovery of possession from the possession of the defendant/petitioner. A plea has also been raised in paragraph 8 of the amendment application that the said application could not be preferred earlier despite due diligence because the learned counsel for the plaintiff/respondent was placing reliance on a judgment of the Hon'ble Supreme Court. Thus it was prayed that the said amendment application be allowed. A plea has also been raised in paragraph 8 of the amendment application that the said application could not be preferred earlier despite due diligence because the learned counsel for the plaintiff/respondent was placing reliance on a judgment of the Hon'ble Supreme Court. Thus it was prayed that the said amendment application be allowed. The objections were filed on behalf of the defendant/petitioner whereby plea of (a) amendment being filed after a period of almost 10 years, (b) there being no due diligence on the part of the plaintiff/respondent and other objections were also raised. Learned court below by means of the order dated 9.4.2018, a copy of which is Annexure-9 to the writ petition, allowed the application for taking on record the amendment and thereafter vide order dated 11.7.2018 (Annexure-2 to the writ petition) allowed the amendment on payment of Rs.1,000/-as cost. Being aggrieved with the said order, the petitioner preferred Revision No.165 of 2018 which has been dismissed on 13.9.2018. Being aggrieved by the aforesaid orders, present petition has been filed. Learned counsel for the petitioner has placed reliance on a judgment of Hon'ble Supreme Court in the case of J. Samuel and others vs. Gattu Mahesh and others reported in 2012(2) SCC 300 to contend that (a) once the judgment had been reserved by the court below, no such amendment could have been allowed and (b) the plea of the petitioner of there being no due diligence and other pleas so raised were not considered by the courts below while allowing the application for amendment after more than 10 years. It is argued that showing of due diligence is a sine-qua-non for the purpose of allowing said amendment application. It is also argued that the learned court below has passed a very casual order and consequently the said orders are patently bad in the eyes of law. It is argued that showing of due diligence is a sine-qua-non for the purpose of allowing said amendment application. It is also argued that the learned court below has passed a very casual order and consequently the said orders are patently bad in the eyes of law. Having heard the learned counsel for the petitioner and having perused the judgment of the Hon'ble Supreme Court in the case of J. Samuel (supra) what this Court finds is that the Hon'ble Supreme Court in the aforesaid case where in like circumstances an application for amendment had been filed after the judgment was reserved and on the point of due diligence, has observed as under:- "5) The only point for consideration in this appeal is whether the High Court is right in allowing the application filed under Order VI Rule 17 CPC for amendment of the plaint which was filed after conclusion of trial and reserving the matter for orders. 6) Based on the agreement dated 27.07.1985 which relates to sale of 3 acres and 31 gunthas of land in Survey No. 43 situate in Mission Compound, Dharmapuri Road at Jagtial for a consideration of Rs.24,55,569/-, the respondents/ plaintiffs filed the said suit for specific performance. Since we have already mentioned factual details, there is no need to refer the same excepting the details relating to the petition filed under Order VI Rule 17. After filing written statement by the contesting defendants, the trial of the suit commenced and admittedly both parties adduced the evidence on their behalf and arguments on behalf of both the sides were heard and completed on 22.09.2010. On that day, the Court reserved the matter for orders. Meanwhile, on 24.09.2010, the respondents herein filed a petition praying for amendment of the plaint. In support of the said application, plaintiff No.2 has filed an affidavit stating that in para 11of the plaint he has stated about the legal notice issued on 03.04.2003 to defendant Nos. 1 to 7 for specific performance of agreement of sale dated 27.09.1985 and there was no reply for it. In para 3 of the affidavit, the deponent has stated that by type mistake, the following sentences have missed. After para 11 of the plaint, the following para 12 may be added. 1 to 7 for specific performance of agreement of sale dated 27.09.1985 and there was no reply for it. In para 3 of the affidavit, the deponent has stated that by type mistake, the following sentences have missed. After para 11 of the plaint, the following para 12 may be added. "We are and has been and still is ready and willing specifically to perform the agreement of sale dated 27.09.1985 on our part of which the defendants have, had noticed. I am ready with the balance amount as per agreement of sale dated 27.09.1985. I submit the para nos. 12-18 of the plaint may be changed as 13 to 19." The only reason given by the plaintiffs praying for amendment and inclusion of the above averment in the plaint is "type mistake". It is also stated that it happened in spite of their due diligence." ............. "11) As stated earlier, in the present case, the amendment application itself was filed only on 24.09.2010 after the arguments were completed and the matter was posted for judgment on 04.10.2010. On proper interpretation of proviso to Rule 17 of Order VI, the party has to satisfy the Court that he could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, proviso restricts that power once the trial has commenced. Unless the Court satisfies that there is a reasonable cause for allowing the amendment normally the court has to reject such request. An argument was advanced that since in the legal notice sent before filing of the suit, there is reference to readiness and willingness and the plaintiff has also led in evidence, nothing precluded the court from entertaining the said application with which we are unable to accept in the light of Section 16(c) of the Specific Relief Act as well as proviso to Order VI Rule 17. The only reason stated so in the form of an affidavit is omission by "type mistake". Admittedly, it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16(c) of the Specific Relief Act. The only reason stated so in the form of an affidavit is omission by "type mistake". Admittedly, it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16(c) of the Specific Relief Act. 12) The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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. 13) Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term `Due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. 14) A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit. 15) In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit. 15) In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code. 16) The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. [vide Aniglase Yohannan vs. Ramlatha and Others, (2005) 7 SCC 534 , Ajendraprasadji N. Pandey and Another vs. Swami Keshavprakeshdasji N. and Others, Chander Kanta Bansal vs. Rajinder Singh Anand, (2008) 5 SCC 117 , Rajkumar Guraward (dead) through LRS. vs. S.K.Sarwagi and Company Private Limited and Another, (2008) 14 SCC 364 ,Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409 , Man Kaur (dead) By LRS vs. Hartar Singh Sangha, (2010) 10 SCC 512 ." Taking into consideration the law laid down by the Hon'ble Supreme Court in the case of J. Samuel (supra), what this Court finds is that the application for amendment was preferred after the judgment had been reserved by the court below on 3.2.2018 which is apparent from a perusal of the application filed by the plaintiff/respondent herself (Annexure-5 to the writ petition). Moreover, no "due diligence" has been indicated in the application for amendment so filed on behalf of the plaintiff/respondent and even the Court below appears to have proceeded in a very casual manner while deciding the application for amendment and the revisional Court too did not consider the aforesaid aspects of the matter and rejected the revision. Accordingly, prima facie case for interference is made out. Consequently, till the next date of listing, operation of the orders dated 13.9.2018 and 11.7.2018 (Annexures-1 & 2 respectively to the writ petition) shall remain stayed." 3. From the perusal of the aforesaid order and the facts as indicated in the writ petition, it emerges that in the year 2007, the respondent filed Regular Suit No.249/2007 (Smt. Kalyani Devi. Vs. Satish Kumar.) for declaring her the sole and absolute owner of the house and for permanent injunction. The suit was heard and the judgment was reserved on 3.2.2018. On 6.2.2018, an application for amendment was filed by the respondent herein, who was the plaintiff in the said suit, praying for certain amendments, a copy of which application is annexed as Annexure No.7 to the writ petition. The suit was heard and the judgment was reserved on 3.2.2018. On 6.2.2018, an application for amendment was filed by the respondent herein, who was the plaintiff in the said suit, praying for certain amendments, a copy of which application is annexed as Annexure No.7 to the writ petition. Objections were filed by the petitioner, who was the defendant before the Court below, on various grounds including the ground that the amendment is sought to be filed after judgment has been reserved and that the amendment was belated and no due diligence has been indicated as to why the amendment application was being filed after about 10 years. By the order dated 9.4.2018 a copy of which is Annexure No.9 to the petition, the amendment application was taken on record. While taking on record, the Court below has specifically observed that the amendment application is being listed for hearing and both the parties shall come prepared to advance the arguments on 25.4.2018 on two points namely, (1) Whether allowing the application for amendment, would amount to retrial of the suit, and, (2) Whether due diligence has been shown by the plaintiff in filing the application for amendment belatedly. 4. Being aggrieved, the petitioner filed a revision before the Revisional Court which has been rejected, vide order dated 5.5.2018 a copy of which is Annexure No.10 to the petition. 5. Subsequent thereto, the Court below through an order dated 11.7.2018 had allowed the amendment application on the ground that allowing of the amendment application would not result in any retrial of the suit. However, no finding has been given regarding second ground which has been enumerated/framed by the Court below in its order dated 9.4.2018 i.e., whether due diligence has been shown by the plaintiff in filing the application for amendment belatedly. 6. Being aggrieved, the petitioner filed a revision which has been rejected, vide impugned order dated 13.9.2018 on the ground of maintainability. 7. Being aggrieved by the four orders namely, the order dated 13.9.2018, 11.7.2018, 5.5.2918 and 9.4.2018, copies of which have been filed as Annexure No.1, 2, 10 and 9 to the petition, the instant petition has been filed. 8. As already indicated above, this Court had passed a detailed order dated 13.11.2018, and in pursuance to the said order, the operation of the impugned orders dated 13.9.2018 and 11.7.2018 had been stayed. 8. As already indicated above, this Court had passed a detailed order dated 13.11.2018, and in pursuance to the said order, the operation of the impugned orders dated 13.9.2018 and 11.7.2018 had been stayed. The said order dated 13.11.2018 is still continuing. 9. Learned counsel for the petitioner contends that no doubt it is the discretion of the Court to allow an application for amendment, yet when the Court below had specifically enumerated the two points which were to be considered while listing the application for amendment for hearing namely, (1) Whether allowing the application for amendment, would amount to retrial of the suit, and, (2) Whether due diligence has been shown by the plaintiff in filing the application for amendment belatedly, as such, it was the duty of the Court below to have considered both the grounds as enumerated and the application for amendment could not have been allowed on the sole ground of there being no retrial of the suit, leaving the second ground unanswered/undecided. 10. He vehemently argues that when the Court below itself had proceeded to frame the points on which the amendment application was to be argued as such, the Court below could not adopt a short cut in allowing the application for amendment on one ground alone. 11. On the other hand, Km. Madhurima Bhargava for respondent has placed reliance on Apex Court judgments in the case of Ram Chandra Sakharam Mahajan. Vs. Damodar Trimbak Tanksale (dead) and others reported in (2007) 6 SCC 737 ; Surender Kumar Sharma. Vs. Makhan Singh reported in (2009) 10 SCC 626 ; Peethani Suryanarayana and another. Vs. Repaka Venkata Ramaya Kishore and others reported in (2009) 11 SCC 308 ; Gurbakhsh Singh and others. Vs. Buta Singh and another reported in (2018) 6 SCC 567 ; Abdul Rehman and another. Vs. Mohd. Ruldu and others reported in (2012) 11 SCC 341 ; Revajeetu Builders and Developers. Vs. Narayanaswamy and Sons and others reported in (2009) 10 SCC 84 ; and Varun Pahwa. Vs. Renu Chaudhary reported in (2019) 15 SCC 628 . She contends that in the aforesaid judgments, the Apex Court has settled the law that an amendment application is to be invariably allowed and at most, either party can be compensated by way of costs. Narayanaswamy and Sons and others reported in (2009) 10 SCC 84 ; and Varun Pahwa. Vs. Renu Chaudhary reported in (2019) 15 SCC 628 . She contends that in the aforesaid judgments, the Apex Court has settled the law that an amendment application is to be invariably allowed and at most, either party can be compensated by way of costs. She also contends that by means of amendment application, the nature of the suit was not changed and as such, no illegality or infirmity has been committed by the Court below while allowing the amendment application. She also contends that in case one ground has not been considered by the Court below, this Court while exercising its power under Article 227 of the Constitution can very well enter into the grounds keeping in view of the law laid down by the Apex Court. 12. Placing reliance on the judgment of this Court in the case of Rajendra Shanker Tripathi. Vs. Ajay Kumar Gupta reported in [2011 (29) LCD 757], it is contended that the delay in fling an application for amendment was on account of the fault of the counsel and this Court in the case of Rajendra Shanker Tripathi (supra) has held that for the fault of the counsel,the litigant cannot not suffer. As such, it was in the fitness of things that the amendment application should have been allowed by the Court below which in fact has been allowed and accordingly, there is no illegality or infirmity in the orders impugned. It is also contended that the revision filed against the said order has rightly been rejected by the Court below as the said revision was not maintainable. 13. I have heard the learned counsel for parties and perused the records. 14. What emerges from the records is that admittedly, a suit was filed by the respondent herein for declaring her as a sole and absolute owner of a house and for permanent injunction. The suit was filed in the year 2007. The suit was heard finally and judgment was reserved on 3.2.2018. Subsequent thereto, an application for amendment was filed on 6.2.2018. The suit was filed in the year 2007. The suit was heard finally and judgment was reserved on 3.2.2018. Subsequent thereto, an application for amendment was filed on 6.2.2018. The Court below, vide order dated 9.4.2018 had taken the application for amendment on record and listed it for hearing on two points i.e., (1) Whether allowing the application for amendment would amount to retrial of the suit, and, (2) Whether due diligence has been shown by the plaintiff in filing the application for amendment belatedly. A revision filed against the said order, was rejected on 5.5.2018. Subsequent thereto, the amendment application has been allowed by the impugned order dated 11.7.2018. However, the Court below while allowing the amendment application, has only considered the point (1) namely, whether allowing the application for amendment, would amount to retrial of the suit. However, the second point upon which the application for amendment was to be heard i.e., whether due diligence has been shown by the plaintiff in filing the application for amendment belatedly, no finding has been recorded upon the same. 15. Upon the challenge being raised to the said order the revision has been rejected by the Revisional Court, vide order dated 13.9.2018 on the ground that the revision itself is not maintainable. 16. A perusal of the order impugned dated 9.4.2018 would indicate that once the Court below was listing the application for amendment for being heard on two points as were enumerated and indicated in the said order itself, it was in the fitness of things that both the points should have been considered by the Court below more particularly, when the Court below had itself listed the application for amendment for being heard on both the points. Consequently, there was no occasion for the Court concerned to have shirked its responsibility of addressing and deciding the second point which had been enumerated by itself in the order dated 9.4.2018 and as such, the impugned order dated 11.7.2018 merits to be set aside on this ground alone. 17. So far as the judgments of Apex Court as referred to in para 11 above are concerned, there can be no quarrel to the proposition of law that has been indicated by the Apex Court. 17. So far as the judgments of Apex Court as referred to in para 11 above are concerned, there can be no quarrel to the proposition of law that has been indicated by the Apex Court. There is no doubt that it is always the discretion of the Court below to allow the application for amendment and at most the aggrieved party can be compensated by way of costs. However, the facts in the instant case are otherwise, inasmuch as, the Court below had specifically recorded in its order dated 9.4.2018, while listing the application for amendment for hearing that two points are to be considered, while only one point has been considered while allowing the application for amendment. Such action on the part of the Court concerned cannot be countenanced. 18. So far as the judgment of this Court in the case of Rajendra Shanker Tripathi (supra) is concerned, there can be no quarrel that a litigant cannot suffer on the fault of his counsel. 19. Accordingly, keeping in view the aforesaid discussion, the petition is partly allowed. The impugned order dated 11.7.2018 a copy of which is Annexure No.2 to the writ petition, is set aside. This Court does not find any error of law in the order dated 13.9.2018 inasmuch as, the revision has been dismissed on the ground of nonmaintainability. This Court also does not find any illegality or infirmity in the order dated 9.4.2018 whereby the amendment application has been taken on record. Likewise, no error is found in the order dated 5.5.2018 whereby the Revision has been rejected. 20. Let the Court concerned proceed to hear the application for amendment filed by the respondent/plaintiff. As Sri Kesarwani appearing for the petitioner says that objections have already been filed, there is no requirement of filing fresh objections. The Court below shall proceed to consider the application for amendment in accordance with law after hearing the parties concerned and pass appropriate orders upon the same within a period of four weeks from the date of receipt of a certified copy of this order considering the fact that the suit is pending since 2007. Consequences to follow.