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2022 DIGILAW 165 (JK)

Gh. Rasool Tak v. Mehbooba Akhter

2022-04-19

JAVED IQBAL WANI

body2022
JUDGEMENT/ORDER : 1. Supervisory jurisdiction of this Court is being invoked under Article 227 of the Constitution for setting aside of order dated 2nd November, 2017, (herein after impugned order) passed in case titled as "Mst. Mehbooba Akhter v. Ghulam Rasool Tak" by the Court of Munsiff Shopian (herein after the trial Court). 2. The background facts under the cover of which the instant petition is filed reveals that the respondent herein filed a suit on 12th May, 2014, for declaration and injunction in respect of two storied shop cum flat claimed to have been allotted to the mother of the plaintiff/respondent herein. A written statement is stated to have been filed by the defendant/petitioner herein to the suit on 17th June, 2014. 3. An application under Order VI Rule 17 is stated to have been filed by the respondent herein on 18th October, 2017, seeking amendment of the plaint by incorporating challenge thrown to a family settlement deed dated 11th October, 2012. Upon filing of the objections to the said application, the trial court is stated to have passed the impugned order while allowing the said application. 4. The impugned order is being assailed inter-alia on the grounds that the same is bad in law having the effect of causing mis-carriage of justice and that the plaintiff/respondent herein though was in know of the said family settlement yet did not challenge the same at the time of institution of the suit and that the same has been challenged after the period of limitation of three years prescribed under section 3 of the Limitation Act and that the trial court failed to appreciate the fact that a fresh case hopelessly time barred was being sought to be introduced by way of amendment. 5. Respondent despite availing last and final opportunity has chosen not to file any response to the petition. Heard learned counsel for the parties and perused and record. 6. The moot question involved in the instant petition would be as to whether the impugned order has been passed in tune with the mandate of Order VI Rule 17 CPC relating to the amendment of pleadings. 7. Before adverting to the said question, it would be appropriate to refer to Order VI Rule 17 CPC:- "Or. 6. The moot question involved in the instant petition would be as to whether the impugned order has been passed in tune with the mandate of Order VI Rule 17 CPC relating to the amendment of pleadings. 7. Before adverting to the said question, it would be appropriate to refer to Order VI Rule 17 CPC:- "Or. 6 R. 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." 8. What emerges from above is that - Rule 17 of Order 6 declares that 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. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. Proviso, as added by the Code of Civil Procedure (Amendment) Act, 2002, enacts that no application for amendment should 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 (for which amendment is sought) before the commencement of the trial. 9. Law is no more res-integra that the amendments are generally to be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time. The Hon'ble Apex Court in T.N. Alloy Foundry Co. Ltd. vs. T. N. Electricity Board & Ors. reported in (2004) 3 SCC 392 while referring to L. J. Leach & Co. Ltd. v. Jardine Skinner & Co. The Hon'ble Apex Court in T.N. Alloy Foundry Co. Ltd. vs. T. N. Electricity Board & Ors. reported in (2004) 3 SCC 392 while referring to L. J. Leach & Co. Ltd. v. Jardine Skinner & Co. has held that Court would as a rule decline to allow amendment, if a fresh suit on the amended claim would be barred by limitation on the date of the application, but this is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the court to order it. 10. Keeping in mind the above legal position, the validity of the order impugned may be tested. Record admittedly reveals that the application seeking amendment has been filed on 18th October, 2017, whereas, according to the petitioner, the suit had been filed on 12th May, 2014, and written statement filed thereto on 17th June, 2014. Record further tends to show that the plaintiff/respondent herein had been well aware about the family settlement as a pleading thereto stands verified by the plaintiff/respondent herein in Para 2 of the plaint itself. No cogent or credible explanation has been offered in the application seeking amendment as to why the plaintiff/respondent herein could not throw challenge to the said family settlement before 18th October, 2017. The only reason for throwing challenge to the said family settlement expressed in the application by the plaintiff/respondent herein is that the defendant/petitioner herein had contended in the written statement that the plaintiff/respondent herein has given suit shop to the defendant/petitioner herein by virtue of said family settlement. 11. Law is no more res-integra that an amendment in the pleadings is not available as the matter of right in all circumstances to a party. The amendment in the plaint is being sought by the plaintiff/respondent herein for throwing challenge to the instrument of family settlement which had been in knowledge of the plaintiff/respondent herein, at the time of filing of the suit itself. If at all the plaintiff/respondent herein have had any right or ground available in law to throw challenge to the said instrument of family settlement, same ought to have been under taken by the plaintiff/respondent herein promptly and with due diligence. The said promptness and due diligence as contemplated under Proviso appended to Order VI Rule 17 is missing in the instant case. The said promptness and due diligence as contemplated under Proviso appended to Order VI Rule 17 is missing in the instant case. The amendment thus, sought and granted to the plaintiff by the trial court in terms of the impugned order is patently belated and ought not to have been allowed having regard to the facts and circumstances of the case. The impugned order therefore, cannot said to have been passed in furtherance of meeting the ends of justice. 12. Thus, the instant petition can safely said to be a case warranting exercise of supervisory jurisdiction in the light of the principles of law laid down by the Apex Court in Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, reported in 2010 (8) SCC 329 wherein following has been noticed: (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo moto. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. 13. Viewed thus, what has been considered, observed and analyzed hereinabove, the instant petition deserves to be allowed and is accordingly allowed. Consequently, the impugned order is set aside and the application seeking amendment filed by the plaintiff/respondent herein shall stand dismissed.