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2024 DIGILAW 477 (MP)

Basantibai v. Chamanlal Jain

2024-07-02

SUBODH ABHYANKAR

body2024
ORDER 1. Heard finally, with the consent of the parties. 2. This miscellaneous petition under Article 227 of the Constitution of India has been filed by the petitioners/defendants against the order dated 24.2.2024 (Annnexure P/1), passed by the Second Civil Judge, Junior Division Depalpur District Indore in RCSA5A/2018 (Civil Suit No.37-A/2015); whereby, an application filed by the respondent/plaintiff under Order 6 rule 17 of the Civil Procedure Code, 1908 (hereinafter to be referred to as ‘CPC”) for amendment in the plaint, has been allowed. 3. In brief, the facts of the case are that initially on 25.8.2015, the respondent filed a civil Suit RCS No.37-A/2015 against the petitioner no.1 before the Second Civil Judge, Class II, Depalpur seeking relief for deletion of the name of petitioner No.1 with regard to House No.187, Tilak Marg, Street No.1 Depalpur. In the aforesaid suit, the petitioner No.1 also submitted his written statement along with counter claim and an application under Order 7 rule 11 of the CPC was also filed for rejection of the suit which was decided on 8.9.2016, and the suit was rejected. Thereafter the aforesaid suit continued with respect to the counter claim filed by the petitioners, however, yet another civil suit which was filed by the respondent against the petitioners, which was registered initially as COS.No.5-A/2018 on 21.12.2017 and subsequently, renumbered as RCSA No.5A/2018. In the aforesaid suit a written statement was again filed by the petitioners, and subsequently both the suits namely RCSA.No.35-A/2015 and RCSA.No.5A/2018 were consolidated by the trial Court in the year 2019. It is only recently, i.e., on 23.2.2024, that the respondent/plaintiff filed an application under Order 6 rule 17 of CPC seeking amendment in the relief clause. The aforesaid application was allowed by the trial Court vide impugned order dated 24.2.2024, and being aggrieved by the aforesaid, the present petition has been filed. 4. Shri Rohit Mangal, learned counsel for the petitioners has submitted that the aforesaid application for amendment was totally misconceived in as much as the plaintiff was well aware of all the facts and circumstances of the case and no new facts were brought on record compelling the plaintiff to file the amendment application, and the facts which are now being sought to be brought on record were well within the knowledge of the plaintiff even before the written statement was filed. Thus, it is submitted that there was no reason for the trial Court to allow the application for amendment. 5. Shri Mangal has also submitted that by way of amendment the plaintiff is also trying to change the nature of the suit as earlier it was suit for declaration, whereas by way of amendment, it has been changed to suit for declaration of title and injunction, and that to when the trial has already commenced. 6. In support of his submissions, Shri Mangal has relied upon the decision rendered by the Supreme Court in the case of Rajkumar Gurawara (Dead) Through L.RS. v. S. K. Sarwagi and Company Private Limited and another reported as (2008) 14 SCC 365 para 18 as also the order passed by the Supreme Court in the case Asian Hotels (North) Limited v. Alok Kumar Lodha and others reported as (2022) 8 SCC 145 . 7. Prayer is opposed by counsel appearing for the respondent/plaintiff and it is submitted by Shri Paresh Joshi, learned counsel for the respondent that no case for interference is made out as the petitioners have already carried out the consequential amendment in their written statement, and the matter is now fixed for recording of the evidence. It is also submitted that the learned judge of the trial Court has also imposed cost of Rs.4000/- for filing the application after some delay. Counsel for the respondent has submitted that no prejudice has been caused to the petitioners on account of the aforesaid amendment, and they would have ample opportunity to lead evidence in respect of the amendment. 8. Shri Joshi has also relied upon the decision rendered by the Supreme Court in the case of Rajkumar Gurawara (Dead) Through L.RS. (supra), to submit that post trial amendment can also be allowed. Counsel has also relied upon the decision rendered by the Co-ordinate Bench of this Court at Jabalpur in the case of Govind & Ors. v. Ram Tilak & Ors. in M.P. No.5280 of 2022 dated 6.10.2023 wherein the Co-ordinate Bench has relied upon the decision rendered by the Supreme Court in the case Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. and another reported as 2022 SCC OnLine SC 1128. 9. v. Ram Tilak & Ors. in M.P. No.5280 of 2022 dated 6.10.2023 wherein the Co-ordinate Bench has relied upon the decision rendered by the Supreme Court in the case Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. and another reported as 2022 SCC OnLine SC 1128. 9. In rebuttal, counsel for the petitioners has submitted that the consequential amendment has been carried out by the defendant under protest only as day-to-day proceedings are taking place before the trial Court. 10. Shri Paresh Joshi, learned counsel appearing for the respondent has submitted that the petitioners’ application for filing the consequential amendment under protest has been rejected. 11. Heard learned counsel for the parties and perused the record. 12. From the record, it is apparent that the suit itself was filed in the year 2017, seeking relief of injunction only whereas the earlier Civil Suit No.37-A/2015, which was filed in the year 2015, stood already rejected on an application filed under Order 7 rule 11 of the CPC by the petitioners/defendants vide order dated 8.9.2016. The written statement by the petitioners/defendants was filed on 11.12.2018, and it is not disputed that after the issues were framed, the evidence has already been started, and the application for amendment under Order 6 Rule 17 of the CPC has been filed by the respondent/plaintiff only on 23.2.2024. 13. On perusal of the application for amendment dated, 23.2.2024, it is found that the only reason assigned for seeking the amendment after the suit was filed in the year 2017, is that the same could not be earlier pleaded on account of inadvertence. 14. So far as the provisions of Order 6 rule 17 of the CPC is concerned the same reads as under :-- Order VI rule 17: Amendment of pleadings : Or. 14. So far as the provisions of Order 6 rule 17 of the CPC is concerned the same reads as under :-- Order VI rule 17: Amendment of pleadings : 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. (Emphasis Supplied) 15. It is apparent from the aforesaid provision that an application for amendment should not be ordinarily be allowed after the commencement of the suit, 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, and in the present case not only that the suit was filed in the year 2017, in which the recording of the evidence has already been started only recently, but prior to that also, in the year 2015, earlier suit was also filed by the plaintiff which came to be dismissed on an application filed by the defendants under Order 7 Rule 11 of the CPC. 16. So far as the decision relied upon by the counsel for the parties in the case of Rajkumar Gurawara (Dead) Through L.RS. (supra) is concerned, the relevant paras 13 and 18 of the same read as under :-- 13] To put it clear, Order VI rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. xxxxxxxxxxx 18] Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge. (Emphasis Supplied) 17. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge. (Emphasis Supplied) 17. It is apparent from the aforesaid that pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial, and although the trial is at its initial stage, still considering the fact that the amendments sought to be made by the plaintiff are after more than 7 years of filing of the suit, coupled with the fact that the earlier suit filed by the plaintiff stood already dismissed, and the fact that in the application for amendment there is not a whisper by the plaintiff as to why the application has been filed after such delay, except that due to inadvertence, the pleadings could not be made. Whereas, on merits, it is also found that the relief of injunction has been changed to the relief of declaration and injunction, thus, prejudice is apparently caused to the petitioners/defendants who have also filed their counter claim in the earlier suit which is clubbed with the present suit, and even though the consequential amendments have also been carried out by the petitioners/defendants, it would not preclude them from contesting the order of amendment on merits. 18. In view of the same, the aforesaid decision is of no avail to the respondent and on the contrary it helps the petitioner’s cause. So far as the decision of the Co-ordinate Bench in the case of Govind & Ors. (supra) is concerned, the same is distinguishable on the same reasoning as aforesaid. 19. In such circumstances, when the plaintiff was aware of all the facts and circumstances of the case even prior to filing of the suit, he cannot be allowed to amend the suit after more than seven years of filing of the same. However, it is also apparent that the learned judge of the Civil Court has not considered the amendment application on the touchstone of the aforesaid provision itself, and merely by imposing the cost of Rs.4000/- the application for amendment has been allowed, which, in the considered opinion of this Court, could not have been allowed. 20. However, it is also apparent that the learned judge of the Civil Court has not considered the amendment application on the touchstone of the aforesaid provision itself, and merely by imposing the cost of Rs.4000/- the application for amendment has been allowed, which, in the considered opinion of this Court, could not have been allowed. 20. Resultantly, the miscellaneous petition stands allowed and the impugned order dated 24.2.2024 is hereby set aside. The leaned judge of the trial Court is requested to proceed further with the matter by deleting the amendments carried out by the parties. 21. Accordingly, the petition stands allowed and disposed of.