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2024 DIGILAW 76 (ALL)

Karm Chandra Kushwaha v. Lala Ram

2024-01-08

ASHUTOSH SRIVASTAVA

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JUDGMENT Ashutosh Srivastava, J. Heard Shri. Anadi Krishna Narayana, learned counsel for the petitioners and Shri. Rahul Sahai, learned counsel under the authority of Shri. Pavan Kumar Kushwaha, learned counsel for the caveator/respondents. 2. With the consent of the parties, the petition is being finally decided at the admission stage itself. 3. The instant petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 26.9.2023 passed by the Addl. District Judge, Court No. 22, Allahabad in Civil Revision No. 37 of 2023 (Karam Chandra Kushwaha and others v. Lala Ram and others) whereby the Civil Revision preferred by the petitioners against the order dated 4.2.2023 of the Addl. Civil Judge (Jr.Div.), Court No. 16, Allahabad has been dismissed and the order dated 4.2.2023 rejecting the Amendment Application (Paper No. 132-A) under Order 6, Rule 17 CPC has been upheld. 4. The facts and circumstances giving rise to the controversy involved in the instant petition, briefly stated, are that an original suit, being Original Suit No. 433 of 2000 (Ram Sajeevan Kushwaha v. Heera Lal) was instituted by the predecessor-in-interest of the petitioners against Heera Lal, the predecessor-in-interest of the respondents claiming a relief of permanent injunction and demolition. During the pendency of the suit, the sole plaintiff/ Ram Sajeevan expired and the present petitioners were substituted in his place. Likewise, the sole defendant Heera Lal also expired and his sons Lala Ram and Purushottam Lal were brought on record as his heirs and legal representatives. A family settlement/compromise was entered into between the petitioners and the heirs of Heera Lal i.e. Lala Ram and Purushottam Lal on 25.12.2019 and the same was also reduced in writing. Meanwhile, Purushottam Lal expired and his heirs i.e. respondent Nos. 2 to 7 were brought on record. The petitioners filed the compromise as evidence by means of an application (Paper No. 114 Ga). The trial Court vide order dated 14.3.2022 took on record the compromise numbered as Paper No. 115 C. The petitioners sought to amend the plaint of the Original Suit No. 433 of 2000 incorporating the factum of the compromise entered between the parties and also amend the prayer clause accordingly. The amendment application dated 8.12.2022 was registered as Paper No. 132A. The respondents filed their objections to the amendment application. 5. The amendment application dated 8.12.2022 was registered as Paper No. 132A. The respondents filed their objections to the amendment application. 5. The learned Trial Court vide its order dated 04.02.2023 rejected the amendment application filed by the petitioners being of the view that the application had been moved after considerable delay and after the evidence of the parties had closed and the suit was proceeding at the stage of hearing and no plausible explanation had been given for the delay that had occasioned. 6. The petitioners aggrieved by the order dated 04.02.2023 preferred a civil revision, being Civil Revision No. 37 of 2023 before the learned Additional District Judge, Court No. 22, Allahabad. The learned Additional District Judge, Court No. 22, Allahabad has rejected the Civil Revision upholding the findings of the Trial Court. 7. Sri. Anadi Krishna Narayan, learned counsel for the petitioners has vehemently argued that both the Trial Court as also the Revisional Court manifestly erred in law in rejecting the amendment application on the ground that it had been preferred after considerable delay in as much as an amendment cannot be rejected merely on the ground of delay. He submits that the compromise was entered into between the parties in December, 2019. Soon after the compromise the entire Nation was ravaged by the COVID 19 Pandemic and judicial proceedings in Courts were largely affected. The compromise was brought on record by way of an application dated 18.02.2022 which was taken on record by the Trial Court vide order dated 14.03.2022. The amendment application was preferred on 08.12.2022. There was no inordinate delay. It is also contended that the statement of the parties to the compromise as also the witnesses to the compromise have been recorded during the trial and they have admitted the compromise. In such view of the matter, the amendment was formal in nature and ought to have been allowed. It has also been argued that the Courts below have proceeded on an erroneous assumption that the suit was of the year 2000 and fell under the oldest cases category and the amendment was being sought after a long delay. In such view of the matter, the amendment was formal in nature and ought to have been allowed. It has also been argued that the Courts below have proceeded on an erroneous assumption that the suit was of the year 2000 and fell under the oldest cases category and the amendment was being sought after a long delay. The Courts below completely ignored the factum that the event warranting the filing of the amendment application took place in the year 2019 and statement of the parties to the compromise as well as the witnesses admitting the compromise were already recorded and would not have any bearing on the nature and character of the suit. It is thus prayed that the petition is liable to be allowed as prayed. 8. Reliance has been placed upon the decision of the Apex Court in the case of Krishna Beharilal v. Gulabchand reported in 1971 (1) SCC 837 for the proposition that a family settlement/compromise can be entered between near relations as also to decisions of this Court in the case of Ram Chandra v. Smt. Kumesh Kumari and others reported in 2017 ACJ 2573 and Anil Kumar v. Radhey Shyam Bhatiya and others reported in 2017 ACJ 2528 for the proposition that amendment cannot be refused on the ground of delay and amendment in pleadings is a matter of procedure intended to facilitate and not obstruct the Courts to impart substantive justice. 9. Per contra, Shri. Rahul Sahai, learned counsel for the contesting respondents submits that the Courts below were totally justified in rejecting the amendment application of the petitioners and adequate reasons have been recorded by the Courts below which requires no interference by this Court in exercise of the powers conferred under Article 227 of the Constitution of India. Sri. Rahul Sahai, learned counsel has argued that the amendment is unnecessary inasmuch as the terms of the compromise provided that the suit would be withdrawn and all the family members would live jointly but that never happened and meanwhile Puroshattam Lal one of the signatories to the compromise expired. The compromise was never acted upon. Shri. Sahai has reiterated the grounds on which the Courts below have proceeded to reject the application for amendment. 10. I have heard the learned counsel for the parties and have perused the records. 11. The compromise was never acted upon. Shri. Sahai has reiterated the grounds on which the Courts below have proceeded to reject the application for amendment. 10. I have heard the learned counsel for the parties and have perused the records. 11. From the perusal of the records, it is revealed that the plaintiff/petitioners have instituted the suit for the relief of permanent injunction and demolition. During the pendency of the suit a family settlement/compromise dated 25.12.2019 was entered between the parties under which the dispute was sought to be settled in terms of the compromise. It was also agreed that any dispute existing between the parties shall be decided in terms of the compromise so entered. The proposed amendment sought to incorporate the terms of the compromise in the plaint by adding para 19A as under:- "That in the above suit after death of plaintiff Ram Sajiwan and defendant Heera La, their legal heirs have been substituted in their place who have compromised their dispute in the suit. According to compromise the suit property which is lying North of the Khadanja Road which is plot no. 28 have been given to heirs of defendant Purshottam Lal and Lala Ram S/o Late Heera Lal whereas the suit property lying across the South of Khadanja Road along with its construction which is situated in Plot No. 25 have been given to heirs of plaintiff Ram Sajiwan. The compromise was also made in writing on 25.12.2019 and both the parties have also signed in it, which is paper No. 115 C in the file." 12. Accordingly, the relief clause was also sought to be amended by incorporating the following after sub para A as Para A/1:- "A/1-That the compromise paper No. 115 C which is admitted and signed by both the parties be made rule of the Court and the suit should be decided in terms of that compromise." 13. The Apex Court in Mount Mary Enterprises v. Jivratna Medi Treat Ltd., reported in 2015 (4) SCC 182 held that an amendment application should be normally granted unless by virtue of the amendment the nature of the suit is changed or some prejudice is caused to the defendant. The Apex Court in Mount Mary Enterprises v. Jivratna Medi Treat Ltd., reported in 2015 (4) SCC 182 held that an amendment application should be normally granted unless by virtue of the amendment the nature of the suit is changed or some prejudice is caused to the defendant. Further, in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgram reported in 1969 (1) SCC 869 has held that the Rules of procedure are intended to be a handmaid to the administration of justice and amendment cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure by a party. Moreover, in Ganesh Trading Company v. Moji Ram, reported in 1978 (2) SCC 91 the Apex Court held that defective pleadings were generally curable till the time the cause of action sought to be brought in was not an entirely new or inconsistent cause of action, virtually amounting to the substitution of a new plaint or a new cause of action. In Rajesh Kumar Agarwal and Ors. v. K.K. Modi and others reported in 2006 (4) SCC 385 the Court while considering an application for amendment has observed that the Courts should not go into the correctness or falsity of the amendment. Likewise, the Court should also not record a finding on the merit of the amendment and the merits of the amendment sought to be incorporated by way of an amendment are not to be adjudged at the stage of allowing the prayer for amendment. 14. The Courts have been consistent in their view that ordinarily under Order VI Rule 17 CPC, all amendments are ought to be allowed which satisfy two conditions (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real question in controversy between the parties. It has also been held that in a case of unclear or ambiguous pleadings, the same may be allowed to be amended to clarify the already pleaded facts till the same does not give rise to addition to a new cause of action. Further in Bhatia Industries and Ors. It has also been held that in a case of unclear or ambiguous pleadings, the same may be allowed to be amended to clarify the already pleaded facts till the same does not give rise to addition to a new cause of action. Further in Bhatia Industries and Ors. v. Pandey Industries and others, the Delhi High Court held that it is a settled proposition of law that Courts should allow all amendments, which are necessary for determining the matters in controversy between the parties since the object of the Court is to decide the right of the parties and not to punish them for mistake they make in conduct of their cases. 15. It is well settled that the Court must be extremely liberal in granting the prayer for amendment, if the Court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. 16. In the opinion of the Court every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. Where the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts the Apex Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of the statutory period of limitation. This view is in consonance with the law laid down by the Apex Court in the Case of Vineet Kumar v. Mangal Sain Wadhava reported in 1984 (3) SCC 352 . 17. In the case at hand, the proposed amendment merely sought to bring on the record the pleadings in respect to the family settlement/compromise and the prayer to decide the suit in terms of the compromise. The predecessors-in-interest of the respective parties to the suit were agreeable to them and prayer was sought to be incorporated to decide the suit in terms of the compromise. The predecessors-in-interest of the respective parties to the suit were agreeable to them and prayer was sought to be incorporated to decide the suit in terms of the compromise. In the opinion of the Court, the nature of the suit will not change and the amendment will facilitate the decision in the suit in terms of the compromise so entered. The Court further finds that no objections were filed by the defendants against the compromise as is evident from the order dated 14.03.2022. The amendment application, however, was objected to by filing objections (Paper No. 134C). The objections taken were only to the effect that the amendment was being preferred only to delay the proceedings as the case was pending at the stage of final hearing. The parties have already led their respective evidences and by way of the amendment the plaintiff seeks to incorporate new facts which shall alter the entire case and as such, cannot be permitted. The trial Court proceeded to reject the amendment on the ground that the plaintiff/ petitioners had sufficient time to file the amendment application after the compromise was brought on record. No explanation for the delay was given in the application. The Revisional Court though held that the amendment was not hit by the proviso to Order 6, Rule 17 CPC yet rejected the amendment being of the view that the Trial Court rejected the amendment exercising the powers under section 151 CPC and there was no illegality or irregularity in the same. 18. In the opinion of the Court, the amendment application in the facts and circumstances of the case, could not have been rejected by the Courts below merely on the ground of delay. The family settlement/compromise is already part of the record of the Court below. The statement of the parties to the compromise as well as the witnesses to the compromise have been recorded during the trial. No further evidence is required. The amendment sought being only formal in nature was liable to be allowed. 19. In view of the above, I find that the Courts below erred in law in rejecting the amendment application of the petitioners. No further evidence is required. The amendment sought being only formal in nature was liable to be allowed. 19. In view of the above, I find that the Courts below erred in law in rejecting the amendment application of the petitioners. Once the compromise had been entered between the parties and its execution admitted, parties having led their respective evidences, the compromise not having the effect of changing the nature and character of the suit, no prejudice would be caused to the defendant/respondents, the amendment proposed was liable to be allowed. The impugned orders dated 26.09.2023 and 4.2.2023 rejecting the amendment application (Paper No. 132A) are liable to be set aside. 20. In the result, the petition is allowed and the impugned order dated 26.09.2023 passed by the Additional District Judge, Court No. 22, Allahabad, in Civil Revision No. 37 of 2023 (Karam Chandra Kushwaha and others v. Lala Ram and others) whereby rejecting the Civil Revision as also the order dated 04.02.2023 passed by the Additional Civil Judge (Junior Division) Court No. 16, Allahabad, rejecting the Amendment Application are set aside. The amendment application filed by the petitioners for amendment of the plaint is allowed. 21. The petitioners shall be permitted to carry out the amendment in the plaint within two weeks from the date of service of certified copy of the order of this Court upon the Trial Court. The Trial Court shall thereafter proceed to decide the suit with all expedition.