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2023 DIGILAW 1458 (RAJ)

Radhakrishan Sadhumalani v. Jainendra Kumar Jain

2023-07-31

GANESH RAM MEENA

body2023
ORDER : Ganesh Ram Meena, J. The present writ petition has been filed by the petitioner/defendant assailing the order dated 19.02.2019 passed by the Court of learned Addl. District Judge No.11, Jaipur Metropolitan (for short 'the court below') in Suit No.44/2014 (426/2014) whereby the application filed by the respondent/ plaintiff under Order 6, Rule 17 CPC for seeking amendments in the plaint was allowed. 2. The respondent/ plaintiff filed a suit for declaration, possession and permanent injunction impleading only Radhakrishan Sadhumalani as a defendant. An application was filed by the respondent / plaintiff under Order 6, Rule 17 read with section 151 CPC for seeking following amendments:- 7- ;g fd okn i= dh en la[;k 6 ¼d½ fuEu izdkj c<+k;k tk;s%& 6- ¼d½ ;g fd izfroknh Øe 1 us nkSjkus nkok izfroknh Øe 2 }kjk tkjh QthZ vkaoVu i= fnukad 10-01-1990 dk iVVk e; uD'kk o jlhn is'k dh gSa] tks fjdkMZ ij fy;s x;s ftuls oknh dks irk pyk fd izfroknh Øe 2 ds v/;{k foosd xqIrk us viuh 'kfDr;ksa dk nq:i;ksx djrs gq;s oknh dks vkoafVr O;olkf;d ,oa vkoklh; Hkwfe {ks=Qy 222-22 oxZxt dks rhu Hkw[k.M cukdj izfroknh Øe 1 ds gd esa QthZ vkaoVu i= oknh ds ckn fnuakd 10-01-1990 dk tkjh dj fn;k gS] ftlesa foosd xqIrk us izfroknh Øe 1 ds gd esa tkjh vkoaVu i= esa cnfu;rh ls ykyp ds o'khHkwr gksdj fcuk vf/kdkj oknh dks vakofVr Hkwfe esa gh rhu Hkw[k.M ftlesa vkolh; Hkw[k.M ds&42 ftldk dqy {ks=Qy 150 oxZxt] O;olkf;d Hkw[k.M ds,l&49 {ks=Qy 22-22 oxZxt rFkk ds,l&50 {ks=Qy 22-22 oxZxt dk fiNyh rkjh[k fnukad 10-01-1990 esa cukdj tkjh dj fn;k gS] izfroknh Øe 2 ds }kjk tkjh fd;s x;s QthZ iVVs ls oknh ikcUn ugha gS vkSj uk gh bl QthZ vkaoVu ds vk/kkj ij izfroknh dks dksbZ vf/kdkj izkIr gksrs gS] bl izdkj izfroknh Øe 1 ds gd esas tkjh vkoaVu i= fnukad 10-01-1990 oknh ds fo:) voS/kkfud o 'kwU; izHkkoh gSA 8- ;g fd okn i= ds en la[;k 13 ¼[k½ dh pkSFkh iafDr esa 49 ,ao cuk;s x;s ds chp ds,l&50 tksMk tk;s rFkk blh en ds var esa fuEu bckjr c<+k;h tk;s%& ^^izfroknh Øe 1 ds gd esa izfroknh Øe 2 ds }kjk oknh dks vkaofVr Hkwfe dks gh fcuk vf/kdkj ds vkaoVu ckcr~ tkjh fd;k x;k vkaoVu i= fnukad 10-01-1990 voS/kkfud 'kwU; ,oa vizHkkoh gSA** 3. In the reply to the application it was stated by the respondent/ plaintiff that the amendments sought by the plaintiff are neither bonafide nor necessary for proper adjudication of the issue. It was also stated that there is no defendant No.2 as has been mentioned in the amendments being sought by the plaintiff. 4. Counsel appearing for the petitioner/ defendant submits that by way of the application under Order 6, Rule 17 read with section 151 CPC the / respondent/plaintiff wants to add that the defendant No.1 has placed on record the forged allotment letter dated 10.01.1990 issued by the defendant No.2 and also by amendments he is seeking relief that the allotment letter dated 10.01.1990 issued by the defendant No.2 be declared illegal, void and ineffective. He further submits that there is no defendant No.2 in the suit and also there are pleadings in the plaint in regard to the amendments which the respondent/ plaintiff wants to make. He further submits that on the basis of the pleadings the issue No.2 has already been framed by the court below on 29.01.2015. Therefore, the order of the court below allowing the amendments is wholly illegal and deserves to be quashed and set aside. 5. Counsel appearing for the respondent/ plaintiff submits that the amendments which are being sought by the respondent/plaintiff and have been allowed by the court below, are proper for adjudication of the dispute between the parties and it will not change the nature of the suit. He further submits that the order allowing the amendments in no manner will prejudice to the petitioner/ defendant. 6. Heard both the counsels appearing for the respective parties. 7. Order 6, Rule 17 CPC provides for provisions in regard to seeking amendment in the pleadings. Order 6, Rule 17 CPC is quoted as under:- "17. He further submits that the order allowing the amendments in no manner will prejudice to the petitioner/ defendant. 6. Heard both the counsels appearing for the respective parties. 7. Order 6, Rule 17 CPC provides for provisions in regard to seeking amendment in the pleadings. Order 6, Rule 17 CPC is quoted 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 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. Recently, the Hon'ble Supreme Court in Civil Appeal No.5909 of 2022 (Arising out of SLP (C) No.22443 of 2019), Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Ors., decided on 01.09.2022, after considering the various earlier judgments, observed as under:- "70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed." 9. In the present case the first and foremost argument of the counsel appearing for the petitioner/ defendant is that without there being any defendant No.2, the respondent/ plaintiff by seeking amendments wants to bring on record the allegations in the name of defendant No.2 and also a relief clause that the allotment letter issued by the defendant No.2 be declared illegal, void and ineffective. On perusal of the plaint and the cause title of the order passed by the court below it is revealed that there is no defendant No.2 impleaded in the suit proceedings so far. In such circumstances the order of the court below allowing the amendments submitting pleadings and prayer in respect of defendant No.2 is illegal and perverse. On perusal of the plaint and the cause title of the order passed by the court below it is revealed that there is no defendant No.2 impleaded in the suit proceedings so far. In such circumstances the order of the court below allowing the amendments submitting pleadings and prayer in respect of defendant No.2 is illegal and perverse. The respondent/ plaintiff way of amendment application wants to insert the pleadings that the allotment letter dated 10.01.1990 issued by the defendant No.2 in favour of defendant No.1 is forged. During the course of arguments the counsel appearing for the petitioner/ defendant invited attention of the Court to the pleading made in para Nos. 3 and 5 of the plaint by the respondent/ plaintiff wherein the allegations of issuing Patta in favour of petitioner/ defendant by Shanti Grah Nirman Sahakari Samiti Limited are already there and on the basis of the pleadings an issue No.2 has already been framed by the court below. When the amendments being sought by the respondent/ plaintiff are already incorporated in the plaint and on the basis of the pleadings, the relevant issue has already been framed by the trial court, allowing amendments at this stage for the same pleadings cannot be said to be justified. 10. The respondent/ plaintiff in his plaint has made allegations of forgery in issuing the allotment letter dated 10.01.1990 in favour of petitioner/ defendant by the Society and the issue has already been framed then the application for seeking amendments for incorporating the same pleadings after four years of filing the suit does not seem to be bonafide. It is a well settled law that any amendment sought by the party should be a bonafide and it is very much necessary for adjudication of the dispute. The counsel for respondent/ applicant could not convince the Court that why the details which were in his knowledge at the time of filing the suit were not incorporated in plaint. 11. In view of the discussion made above and the settled law, as referred above, the amendments which are being sought by the respondent/plaintiff and have been allowed by the court below are neither bonafide nor seems to be necessary for adjudication of the issue. Therefore, the order of the court below allowing such amendments deserves to be quashed. 12. Hence, the writ petition is allowed. Therefore, the order of the court below allowing such amendments deserves to be quashed. 12. Hence, the writ petition is allowed. The order dated 19.02.2019 passed by the Court of learned Addl. District Judge No.11, Jaipur Metropolitan (for short 'the court below') in Suit No.44/2014 (426/2014) is set aside. 13. In view of the order passed in the main petition, the stay application and pending application/s, if any, also stand disposed of.