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2022 DIGILAW 164 (ALL)

Lakshmi Kant Shukla v. Ram Niranjan

2022-02-08

SANGEETA CHANDRA

body2022
JUDGMENT : 1. Heard Shri Pankaj Gupta, learned counsel appearing for the petitioner and Shri Anurag Shukla, appearing for the opposite party. 2. The petitioner has challenged the order dated 22.12.2018 passed by the learned Civil Judge (Junior Division), Kunda, Pratapgarh, in Original Suit No.330/2012 rejecting his application for amendment moved under Order 6 Rule 17 of the CPC as also the order dated 14.02.2021 passed by the learned District Judge, Pratapgarh, in Civil Revision No.14 of 2019 [Lakshmi Kant Shukla Vs. Ram Niranjan]. 3. It has been submitted by the learned counsel for the petitioner that the petitioner had filed a Suit No.330 of 2012 on 18.05.2012 for permanent injunction against Hari Shankar and Ram Niranjan praying that the respondents be restrained from interfering in his Abadi land over which the petitioner is in possession. During the pendency of the Suit, the name of Hari Shankar was deleted and Ram Niranjan alone remained the defendant. The Commission was issued and a report prepared on 09.07.2012. Again a Survey Commission was issued by the court concerned and a report prepared and submitted on 10.02.2018. A written statement was filed by the defendant and issues were framed in the Suit, but till date, the parties have not adduced any evidence. An application was moved by the defendant. During preparation of the case for arguments, it was noticed by the counsel of the plaintiff that the material facts had not been stated and therefore an application under Order 6 Rule 17 of the CPC for amendment of the Suit was moved on 28.11.2018. The amendment moved did not affect the nature of the Suit and the Suit property remained abadi and Sahan land of the petitioner. The petitioner only wished to explain his right to Abadi land and Sahan land on the basis of a Will made out in his favour by one Hari Mohan, the maternal grand father of the petitioner. Such application was rejected on 22.12.2018 by observing that the amendment is highly time barred and it changed the nature of the Suit. The learned Trial Court did not disclose as to how the nature of the Suit would change. No opinion was also recorded in the order impugned that the Trial had begun and evidence was being led by the parties. The learned Trial Court did not disclose as to how the nature of the Suit would change. No opinion was also recorded in the order impugned that the Trial had begun and evidence was being led by the parties. It has been argued that since the trial had not begun, the first clause under Order 6 Rule 17 of the CPC which entitles a party to move amendment application at any stage of the Suit would apply and not the Proviso to the Rule. 4. It has been argued by Shri Pankaj Gupta that the petitioner's mother being widow was living with her father at Village Shakardaha and the petitioner being born and raised in his maternal grand parent's house was in possession of the property in question. It has also been submitted that the purpose of amendment is only to avoid unnecessary multiplicity of the litigation. Such amendments are normally allowed to avoid further litigation between the parties. Learned counsel for the petitioner has placed reliance upon the judgment rendered by Hon'ble the Supreme Court in Shiv Mohan Pal Vs. Shiv Mohan Pal @ Hakla reported in 2020 (38)LCD 450 and argued that the petitioner having legal grounds, filed a Civil Revision challenging the order passed by the learned Trial Court numbered as Civil Revision No.14 of 2019 it was arbitrarily rejected by the District Judge, Pratapgarh. 5. Learned counsel for the petitioner during the course of arguments, has placed reliance upon the judgment rendered by this Court in a Co-ordinate Bench in Shiv Mohal Pal Vs. Shiv Mohan Pal @ Hakla reported in 2020 (38) LCD 450, wherein this Court has placed reliance upon a judgment rendered by the Hon'ble Supreme Court in Ramesh Kumar Agarwal Vs. Rajmala Exports Private Limited reported in (2012) 5 SCC 337 , where it was observed that Courts must not refuse "bonafide, legitimate, honest and necessary amendments" and that they should never permit malafide and dishonest amendments, the approach in such matters should be liberal. The purpose and object of Order 6 Rule 17 of the CPC is to allow either party to amend his pleadings in such manner and on such term as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Court while deciding such prayers should not adopt a hyper technical approach. The purpose and object of Order 6 Rule 17 of the CPC is to allow either party to amend his pleadings in such manner and on such term as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Court 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, the amendments are allowed in pleadings to avoid multiplicity of litigations. 6. This Court in Shiv Mohal Pal (Supra) has placed reliance upon a judgment rendered by the Privy Council and other cases by English Courts of law, also to come to the conclusion that the Trial Court in the particular case before it had rightly allowed the plaintiff's application for amendment in his plaint. 7. This Court has carefully perused the judgments in Shiv Mohan Pal where a reference has been made to a judgment rendered in Revajeetu Builders & Developers Vs. Narayanaswamy & Sons, reported in (2009) 10 SCC 84 , wherein some of the important factors which may be kept in mind while dealing with an application filed under Order 6 Rule 17 of the CPC have been enumerated in the following terms:- "20. In Revajeetu Builders & Developers v. Narayanaswamy & Sons this Court once again considered the scope of amendment of pleadings. In para 63, it concluded as follows: "Factors to be taken into consideration while dealing with applications for amendments 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 adju cation 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." 8. This Court in Shiv Mohan Pal observed that while considering the Order 6 Rule 17 of the CPC the expressions upon "at any stage of proceedings", and for the "purpose of determining the real question 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 and controversy between the parties. 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 or during the stage of Trial, or even after the Judgment or in Appeal. The Power to grant amendment of pleadings is basically intended to further the ends of justice and is not barred by any technical limitations. 9. Shri Anurag Shukla, appearing for the respondent has pointed out the order passed by this Court in Writ Petition No.27539 (M/S) of 2017 (Ram Niranjan Vs. Civil Judge (Senior Division), Kunda, Pratapgarh and others) passed on 15.11.2017 wherein this Court had been approached by the defendant Ram Niranjan (who is the respondent in this writ petition) praying that a direction be issued to the learned Trial Court to decide the Regular Suit No.330 of 2015 expeditiously. This Court had observed that the endeavour should be made to decide the matter expeditiously, if there is no legal impediment in this regard, and keeping in mind the age of the petitioner defendant (who was 72 years old). It had observed that unnecessarily adjournments should not be granted in the Suit. 10. It has been submitted by the learned counsel for the respondent that a copy of the order dated 15.11.2017 was filed immediately before the Trial Court and the plaintiff had full knowledge of such direction of this Court. It had observed that unnecessarily adjournments should not be granted in the Suit. 10. It has been submitted by the learned counsel for the respondent that a copy of the order dated 15.11.2017 was filed immediately before the Trial Court and the plaintiff had full knowledge of such direction of this Court. After the same was filed issues were framed and thereafter an application for amendment was moved by the plaintiff only on 28.11.2018 with the intention to change the very nature of the Suit from one praying for permanent injunction to the defendant to not to interfere in the possession of the plaintiff to one of declaration of his right to the property in question on the basis of an unregistered and highly dubious Will allegedly made out in his favour by the maternal grand father Hari Mohan. 11. Learned counsel for the respondent has pointed out the judgment rendered by the Hon'ble Supreme Court in Vidyabai & Others Vs. Padmalatha & Another reported in AIR 2009 SC 1433 , where a Division Bench of the Court was considering the question as to when "a trial is supposed to commence." There was a divergence of opinion in earlier cases which was considered in detail by the Supreme Court and thereafter the Supreme Court observed that by the Civil Procedure Code (Amendment Act) 2002, a Proviso had been inserted in Order 6 Rule 17 which says that "no application for amendment shall be allowed after trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of Trial." 12. The Supreme Court observed that it is couched in mandatory form. The Court's jurisdiction to allow an application for amendment is taken away unless the conditions precedent therefor are satisfied, viz., it must come to the conclusion that inspite of due diligence the parties could not have raised the matter before commencement of the Trial." 13. The Supreme Court thereafter framed issue to be considered by it in its judgment saying that question would be as to "whether the Trial had commenced or not? It thereafter held that the date on which issues are framed, is the date of first hearing. The provisions of the Code of Civil Procedure envisaged taking of various steps at different stage of proceedings. It thereafter held that the date on which issues are framed, is the date of first hearing. The provisions of the Code of Civil Procedure envisaged taking of various steps at different stage of proceedings. Filing of affidavit in view of Examination-in-Chief of the witnesses, in our opinion would amount to commencement of proceedings." 14. In Kailash Vs. Nankhu reported in (2005) 4 SCC 480 , the Supreme Court had observed that in a Civil Suit, trial begin when the issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as preliminary proceedings to the Trial or for making the case ready for trial. 15. In a Salem Advocate Bar Association Vs. Union of India reported in (2005) 6 SCC 344 , the Court noticed in Paragraphs-41, 42 & 43 that Order 6 Rule 17 of the CPC had been amended in 2002, and under the Proviso, no application for amendment shall be allowed after trial has commenced, unless in all due diligence, the matter could not be raised before the commencement of the Trial. The ratio in Kailash Vs. Nankhu (Supra) was reiterated, stating that the Trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. The Supreme Court observed thereafter in Paragraph-14 of its judgment in Vidyabai (Supra) thus:- "it is Primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint." 16. Learned counsel for the respondent has also pointed out the judgment rendered by the Hon'ble Supreme Court by a Constitution Bench in the case of Municipal Corporation of Greater Bombay Vs. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint." 16. Learned counsel for the respondent has also pointed out the judgment rendered by the Hon'ble Supreme Court by a Constitution Bench in the case of Municipal Corporation of Greater Bombay Vs. Lala Pancham and Others reported in (1965) 1 SCR 542 , where it was observed that an entirely a new case made out in the amendment could not be allowed to be set up by the plaintiff. The Constitution Bench judgment in Pancham (Supra) was rendered before the CPC was amended but the principles applicable to belated movement of amendment application remained the same. 17. It has been argued by Shri Anurag Shukla on the basis of such judgments that initially the plaintiff had come up with a case that he had been in possession over the property in dispute since the time of his ancestors and it being Abadi was settled with him as per Section 9 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, whereas the amendment application made out a case that the mother of the petitioner had started living in her parental house (after becoming a widow) and his maternal grand father made out a Will in his favour in 1983, although unregistered, which had made him his heir and thus entitled to succeed to all property owned by him including the property in dispute. Learned counsel for the respondent has pointed out that mother of the petitioner was married and had gone to her matrimonial home and the ancestors of the petitioner i.e. plaintiff would be his parental grand parents and not his maternal grand parents. 18. Learned counsel for the respondent has pointed out another judgment of the Supreme Court in Pandit Malhari Mahale Vs. Monika Pandit Mahale and Others reported in (2020) 11 SCC 549 , where the Supreme Court had observed that the Trial Court while allowing the application under Order 6 Rule 17 after trial had begun, did not notice the condition mentioned in the Proviso. There being no finding by the Trial Court as contemplated by Order 6 Rule 17 Proviso the Trial Court ought not to have allowed the amendment. 19. There being no finding by the Trial Court as contemplated by Order 6 Rule 17 Proviso the Trial Court ought not to have allowed the amendment. 19. The Learned counsel for the respondent has also referred to a judgment rendered by Hon'ble the Supreme Court in the case of Nagindas Ramdas Vs. Dalpatram Inccharam, reported in AIR 1974 SC 471 , where in Paragraph-26, the Supreme Court had observed that "admissions if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence are by themselves, not conclusive." 20. It has been argued by Shri Anurag Shukla that there was an admission by the plaintiff in that there was a statement in the plaint that he was in possession as far as back as when Section 9 of the U.P.Z.A. & L.R. Act became applicable, and now the case that was being set up by the plaintiff was that he had been bequeathed the property by an unregistered Will. It has been submitted that even otherwise in a Suit for injunction on the basis of possession, only possession has to be proved and not the right which may have led to such possession, which could only be decided in a Suit for declaration. 21. This Court having heard the learned counsel for the parties has gone through the orders impugned and finds that the learned Trial Court had noticed the submissions made by the plaintiff in the plaint and compared them with the submissions now proposed to be made by way of amendment in the pleadings in the application under Order 6 Rule 17 of the CPC, and found them to be contradictory in nature. It had observed that the plaintiff by way of proposed amendments was making out a case which he should have made out in the first place while filing the plaint and that the Suit was at the stage of taking of evidence. If such application for amendment is allowed, the plaintiff's right to the property in question would be determined on absolutely differently leading to a change in the nature of the Suit. 22. No doubt the Trial Court did not refer to any judgments to substantiate its conclusions but when the Civil Revision was filed the learned District Judge was careful enough to notice all the judgments that were cited by the counsel for the plaintiff/revisionist and also the judgment that were cited by the respondent and dealt with them individually and came to the conclusion that the issues had been framed in the Trial and the matter was at the stage of taking evidence and the amendments proposed in the application under Order 6 Rule 17 of the CPC would in fact change the nature of the Suit at a belated stage i.e. six years after filing of the said Suit. 23. This Court finds from the orders impugned that there is a detailed consideration of the facts of the case as mentioned in the plaint and as mentioned in the application for amendment. There is a correct appreciation of the law also by the learned courts below. The Jurisdiction under Article 227 of the Constitution of India being supervisory in nature has held by Hon'ble Supreme Court in the case of Radhey Shyam Vs. Chhavinath reported in (2015) 5 SCC 423 , it has to be exercised very sparingly and only where there is a clear and patent error in law or perversity in the appreciation of facts is made out which is not the case here. 24. The petition stands dismissed. No order as to costs.