Himachal Pradesh High Court
_________________________________________________________________ vs Shri Rattan Singh And Another on 21 July, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.: 4197 of 2013
.
Reserved on: 08.07.2016
Date of Decision: 21.07.2016
_________________________________________________________________
Shri Bachan Singh ...Plaintiff/petitioner.
Vs.
Shri Rattan Singh and another ...Defendants/respondents.
of
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
For the petitioner:
rt
Whether approved for reporting?1 Yes.
Mr. Neeraj Gupta, Advocate.
For the respondents: Mr. Rajiv Jiwan, Advocate.
Ajay Mohan Goel, J. :
By way of present petition filed under Article 227 of the Constitution of India, the petitioner/plaintiff has challenged the order passed by the Court of learned District Judge, Bilaspur in CMP No. 298/06 of 2013 dated 05.09.2013 in Civil Appeal No. 3-13 of 2012 vide which, learned Appellate Court has allowed the application filed by respondents/defendants under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure to amend the written statement at the appellate stage.
2. Brief facts necessary for the adjudication of the present case are that the petitioner/plaintiff filed a suit for declaration and Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 2injunction to the effect that he be declared joint owner in possession to the extent of ½ share with defendant No. 1 qua the suit property situated in villages Behal and Lakhala, Pargana Fatehpur, Tehsil .
Shri Naina Devi Ji, District Bilaspur on the basis of a Will executed by his late father Shri Sukh Ram dated 29.12.1993. Plaintiff also sought a decree of permanent prohibitory injunction against the defendants restraining them from causing any interference in his of share of the suit land.
3. The said suit was resisted by the defendants on the rt grounds that they were exclusive owners in possession of the suit land as per registered Will of late Shri Sukh Ram dated 21.08.2003 and defendants and plaintiff were joint owners in possession of the suit land to the extent of 1/3rd share and not half share.
4. At this stage, it is pertinent to mention that both plaintiff and defendant No. 1 are sons of late Shri Sukh Ram, whereas defendant No. 2 is the wife of defendant No. 1, i.e. daughter-
in-law of deceased Sukh Ram.
5. The case of the plaintiff was that he and defendant No. 1 were owners of ½ share of the suit land as per the Will set up by the plaintiff, whereas case of the defendants was that they alongwith the plaintiff were owners of 1/3rd share of the suit property on the basis of Will set up by them dated 21.08.2003.
6. Learned trial Court on the basis of the pleadings of the parties framed the following issues on 09.11.2004:
::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 3"1. Whether the plaintiff is joint owner in possession of the suit land alongwith defendants as alleged? OPP .
2. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP
3. Whether the suit is not maintainable? OPD
4. Whether the plaintiff has no cause of action to file the present suit? OPD
5. Whether the suit is bad for non-joinder of of necessary parties? OPD
6. Whether the plaintiff is estopped from filing the present suit? OPD 7. valid rt Whether the deceased Sukh Ram executed a 'Will' dated 21.08.2003 in favour of defendants? OPD
8. Whether the defendants are exclusive owners in possession of suit land?OPD
9. Relief.
7. Learned trial Court on the basis of the evidence led by the respective parties, returned the following findings to the issues so framed:
Issue No. 1: Yes.
Issue No. 2: Yes.
Issue No. 3: No.
Issue No. 4: No.
Issue No. 5: No.
Issue No. 6: No.
Issue No. 7: No.
Issue No. 8: No.
::: Downloaded on - 15/04/2017 20:51:36 :::HCHP
4
Relief: The suit of the plaintiff is hereby
decreed with costs as per operative part of the judgment.
.
8. Accordingly, learned trial Court decreed the suit and declared Will Ex. DW1/A dated 21.08.2003 as null and void. It also declared mutations attested on the basis of said Will in favour of defendants as wrong, illegal, null and void. It also held plaintiff joint of owner in possession of the suit land to the extent of ½ share on the basis of Will Ex.-PX dated 29.12.1993 with the defendants.
9. Feeling aggrieved by the said judgment passed by rt learned trial Court, the defendants therein filed an appeal in the Court of learned District Judge, Bilaspur, which was prepared and filed on 19.01.2012. It is relevant to quote paragraphs No. 5 and 7 of the grounds of appeal:
"5. Sh. Sukh Ram deceased during his old age Sh. Bachan Singh plaintiff has also been given 1/3rd share in the suit land therefore the plaintiff has no right to challenge the last volition of his father so as to take benefit of his own ingenuity. The plaintiff was aware of the fact that his father Sh.
Sukh Ram has revoked his earlier will dated 29.12.1993 by executing a revocation deed on 17.7.1998 and the said revocation deed was registered before Sub Registrar Shri Naina Devi Ji, but this fact was never disclosed by the plaintiff and has taken the benefit by suppressing material facts on the basis of a document which stood revoked by ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 5 Sukh Ram on 17.7.1998, therefore the findings are illegal, wrong and deserves to be set aside. Issue No. 8 seems to be casted wrongly as defendants are not .
exclusive owner in possession of the total suit land.
It is alleged by the defendants that they are exclusive owners in possession to the extent of their share but the issue has been framed so as to show the defendants to be exclusive owner in possession which has resulted into a great matter of suspicion to of the court and the court might have thought that no share sis given to plaintiff and the said mistake has resulted in setting aside the last Will of Sh. Sukh rt Ram, therefore, the findings under this issue deserved to be set aside. The grounds which have been taken by the trial Court to be set aside the will are some suspicious circumstances, but these suspicious circumstances are nto well founded and of are very common in village life and small. Every person has a right to dispose of his property on the basis of his free volition and the volition of the person has to be respected and given effect unless and unless the suspicion are well founded. None of the points taken for discussion as suspicious grounds are well founded but are of very poor and frail character. Therefore should have been ignored. The Court has no power to disturb the last volition of a person lightly. At present the women are not domestic servants but they have a right to acquire property on their names independently under law. ....................
7. That the findings under issue No. 3 and 4 are wrong therefore deserves to be set aside. The ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 6 plaintiff has no cause of action to challenge the will dated 21.8.2003 as the will dated 29.12.1993 has been revoked independently by Sh. Sukh Ram and .
the recovation deed is in possession of daughters of Sh. Sukh Ram."
10. Before proceeding further, it is relevant to take note as is borne out from the records that during the course of trial, it was not the case put forth by the defendants that Will dated 29.12.1993 Ex.
of PX had been revoked by Sh. Sukh Ram and the revocation deed was in possession of daughters of Shri Sukh Ram.
11. rt Appeal No. 3/13 of 2012 was filed in January, 2012. On 27.08.2012, i.e. after 8 months, respondents/defendants filed an application before the learned Appellate Court under Order 6 Rule 17 read with Section 151 C.P.C. for amendment of the written statement. The proposed amendment sought in the written statement was by way of adding paragraph No. 7 in the preliminary objection to the following effect:
"Para-7 "That the will dated 29.12.1993 has been revoked by Sh. Sukh Ram deceased father of the plaintiff through a registered revocation deed dated 17.07.1998, therefore, the plaintiff has no right to file the present suit on the basis of revoked will and to challenge registered will dated 21.8.2003 which is last volition of deceased Sh. Sukh Ram without getting declaration for setting aside the revocation deed dated 17.7.1998 as well."::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 7
12. The reasons mentioned in the said application as to why what was being proposed to be added by way of amendment of the written statement could not be earlier incorporated in the written .
statement, were that after the respondents/defendants suffered the decree in the suit filed by the present petitioner and they challenged the same by filing an appeal before the learned appellate Court, they received summons from the Court of learned Civil Judge (Junior of Division), Bilaspur, H.P. during the pendency of the appeal alongwith a copy of plaint to appear on 11.07.2012 and from the same it has rt come to the notice of respondents that daughters of deceased Sukh Ram have filed a suit for declaration that they have also inherited the suit land after the death of their father as Will dated 29.12.1993 had been revoked by their deceased father Sh. Sukh Ram on 17.07.1998 through a registered revocation deed. It was further the case set up in the said application that the fact of revocation of the Will was not disclosed by the plaintiff in the plaint or during the trial of the suit and the plaintiff obtained decree from the learned trial Court on the basis of a Will which stood revoked by Shri Sukh Ram, which act of the plaintiff was a clear case of fraud committed by him upon the Court as well as upon the defendants and said revocation deed was now in the power and possession of learned Civil Judge (Junior Division), Bilaspur in a suit filed by the daughters against Bachan Singh and Rattan Singh etc. which was fixed for 01.09.1012.
Therefore, on the basis of the said explanation and justification, the ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 8 amendment in the written statement was sought by the respondents/defendants.
13. This application filed under Order 6 Rule 17 of the Code .
of Civil Procedure was opposed by the present petitioner. In reply which was filed to the said application before the learned appellate Court, the stand taken by the present petitioner was that the defendants had not made out any case to allow them to amend the of written statement and rather they intend to re-open the entire case by seeking the alleged amendment which was not permissible. It was rt further mentioned in the reply by way of preliminary objections that after filing of the suit, issues were framed by the learned trial Court on 09.11.2004 and the suit remained pending adjudication from 14.06.2004 till 20.12.2011 when it was finally decided. During the pendency of suit, defendants could not produce any so called document and even otherwise, the defendants had taken a specific plea in the written statement that the last Will executed by deceased Sukh Ram was dated 21.08.2003 and when the said Will was declared null and void by the learned trial Court, now they have come up with the new plea that Will dated 29.12.1993 had been revoked. It was further mentioned in the preliminary objections that in fact the defendants after declaration by the learned trial Court to the effect that Will dated 21.08.2003 was null and void, had cleverly got instituted another suit through sisters, who had sided in favour of the defendants in order to avoid the judgment and decree passed ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 9 by the learned Lower Court dated 20.12.2011. It was further mentioned in the reply to para-3 of the application that the defendants had come up with the false story because it stood .
mentioned by the defendants/applicants about the alleged documents in the grounds of appeal, therefore, it stood proved that the contentions being raised by them that they came to know about the existence of the said documents only after they received of summons from learned lower Court in a suit filed by their sisters was a concocted version.
14. rt In the rejoinder which was filed to the said reply, the defendants evaded any straight reply to the factum of their already having mentioned the existence of the alleged documents in the grounds of appeal.
15. Learned Appellate Court vide its order dated 05.09.2013 allowed the application filed under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure and permitted the defendants to amend their written statement. Learned Appellate Court held that the object of Order 6 Rule 17 is to allow either party to alter or amend his pleadings in such manner and on such terms as may be necessary and just. It further held that amendment of written statement cannot be considered on the same principles as an amendment to the plaint. As per the learned Appellate Court, it was easy to amend the written statement rather than the plaint. Further, learned Appellate Court disagreed with the contention of the learned ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 10 counsel for the plaintiff that proposed amendment would change the nature of the suit. As per the learned Appellate Court, the alleged revocation deed was in continuation of the impugned Will and it .
showed the intention of the testator. Learned Appellate Court thereafter adjudicated upon as to whether the defendants were diligent in prosecuting the case and when they for the first time came to know about this document. The findings returned by of learned trial Court in this regard in paragraphs No. 14 and 18 of the order impugned are reproduced hereinbelow:
"14.
rt The learned counsel plaintiff/respondent has made reference to para No. 5 of for the the grounds of appeal, claiming that the appellants/defendants were aware about this document before the ld. Trial Court. In para No. 5, the appellants/defendants have mentioned that the plaintiff/respondent Sh. Sukh Ram had revoked the Will dated 29.12.1993 by executing the revocation deed dated 17.07.1998. In contrast, it is mentioned in para Nos. 4 and 5 of the application under Order 6 Rule 17 CPC that the appellants/defendants came to know about this document after receiving notice of the suit filed by the daughters of Sh. Sukh Ram for 11.07.2012. From the perusal of the evidence on record, knowledge cannot be foisted on appellants/defendants that they were aware about this document prior to decision of the suit. Hence, I am of the opinion that it cannot be said that the appellants/defendants have not acted in a diligent manner and have not produced the revocation deed ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 11 before the learned trial Court.
.......................................
18. In view of the law and facts as discussed .
above, it is quite clear that the revocation deed is an important document to determine the controversy in question. There is nothing on record on the basis of which it can be said that the appellants/defendants have not acted in a diligent manner and that they have not intentionally produced the document before the learned of trial Court. This can also not be presumed because by withholding the document they were not going to reap any benefit. In these circumstances, I think that the rt amendment of the written statement is necessary and essential to settle the controversy and therefore, this application is allowed subject to costs of Rs.500/-. The application after due registration be tagged with the main appeal file.
16. Feeling aggrieved by the said order passed by learned Appellate Court, the plaintiff has filed the present petition under Article 227 of the Constitution of India.
17. Before proceeding further, it is relevant and pertinent to take into consideration the scope of Article 227 of the Constitution of India.
18. The Hon'ble Supreme Court in Radhey Shyam and another Vs. Chhabi Nath and other (2015) 5 Supreme Court Cases 423 has held that judicial orders of Civil Courts are not amenable to writ of certiorari under Article 226 of the Constitution of India. It has further held that jurisdiction under Article 227 is distinct from ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 12 jurisdiction under Article 226 of the Constitution of India. It further held that all the Courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under .
Article 227. The Hon'ble Supreme Court has further held as under:
"26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227stood almost of obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article rt 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnathand anotherst, Ouseph Mathai vs. M. Abdul Khadir[12], Shalini Shyam Shetty vs. Rajendra Shankar Patil[13] and Sameer Suresh Gupta vs. Rahul Kumar Agarwal[14]. In Shalini Shyam Shetty, this Court observed :
"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 13 property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between .
landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions of under Article 227 over such disputes and such petitions are treated as writ petitions.
65.
rt We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.
66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 14 of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well .
known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution of with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and rt thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either underArticle 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."
(emphasis supplied)
19. It is in this background that this Court will examine the order under challenge in exercise of its supervisory jurisdiction.
20. Order 6 Rule 17 of the CPC permits a party to alter or amend pleadings in such manner and on such terms as may be just at any stage of the proceedings. The said provision is quoted hereinbelow:
::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 15"Order VI Rule 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 question in controversy between the parties:
Provided that no application for
of
amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party rt could not have raised commencement of trial."
the matter before the
21. It is apparent from the perusal of this statutory provision 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 the trial.
22. As far as the facts of the present case are concerned, admittedly the application for amendment of the written statement was filed during the pendency of the appeal before the learned Appellate Court. Accordingly, the question which has to be adjudicated by this Court is whether learned first Appellate Court has rightly concluded that the amendment which has been permitted by it could not have been raised earlier by the applicants in spite of due diligence.::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 16
23. "Due diligence" has been defined in Advanced Law Lexicon as under:
.
"Due diligence. Such watchful caution and foresight as the circumstances of the particular case demands."
24. "Due diligence" has been defined in Black's Law Dictionary as under:
of "Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and man rt ordinarily exercised by , a reasonable and prujdent under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case."
25. The Hon'ble Supreme Court in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and others AIR 1957 SC 363 has held that the principles to be followed while allowing amendment in the pleadings are that the amendment sought should satisfy two conditions;
(a) not working injustice to the other side; and
(b) of being necessary for the purpose of determining the real questions in controversy between the parties.
::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 1726. The Hon'ble Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others (2009) 10 Supreme Court Cases 84 has held:
.
"31. In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, of particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of rt cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases.
63. On critically analyzing 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 adjudication 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;::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 18
(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 of with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made rt under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
27. The Hon'ble Supreme Court in State of Madhya Pradesh Vs. Union of India and another (2011) 12 Supreme Court Cases 268 has held:
"6. In order to consider the claim of the plaintiff and the opposition of the defendants, it is desirable to refer the relevant provisions. Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short `the Code') enables the parties to make amendment of the plaint which reads as under:::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 19
"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
of
amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the rt party could not have raised the matter before the commencement of trial."
7. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier.
::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 208. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on .
such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts 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 of be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.
9) rt Inasmuch as the plaintiff-State of Madhya Pradesh has approached this Court invoking the original jurisdiction under Article 131 of the Constitution of India, the Rules framed by this Court, i.e., The Supreme Court Rules, 1966 (in short `the Rules) have to be applied to the case on hand. Order XXVI speaks about "Pleadings Generally". Among various rules, we are concerned about Rule 8 which reads as under:
"8. The Court may, at any stage of the proceedings, allow either party to amend his pleading in such manner and on such terms as may be just, but only such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties."
The above provision, which is similar to Order VI Rule 17 of the Code prescribes that at any ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 21 stage of the proceedings, the Court may allow either party to amend his pleadings. However, it must be established that the proposed amendment .
is necessary for the purpose of determining the real question in controversy between the parties.
10. This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:
of
(i) Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626, at para 5:
"5.
rt As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 22 delay and laches in making the application for amendment cannot be a ground to refuse the amendment."
.
(ii) North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, (2008) 8 SCC 511, at para16:
"16. Insofar as the principles which govern the question of granting or disallowing of amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates rt amendment of pleadings at any stage of the proceedings.In Pirgonda Hongonda Patil v.
Kalgonda Shidgonda Patil which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties.
Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."
(iii) Usha Devi v. Rijwan Ahamd and Others, (2008) 3 SCC 717, at para 13:
"13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court inBaldev Singh v. Manohar Singh. In para 17 of the decision, ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 23 it was held and observed as follows: (SCC pp. 504-
05) "17. Before we part with this order, we .
may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the of records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of rt conclusion as found by the High Court and the trial court.That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings."
(iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385, at paras 15 & 16:
::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 24"15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all .
amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and of leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which rt are necessary for the purpose of determining the real question in controversy between the parties."
(v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84, at para 63:
"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 adjudication 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;::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 25
(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 of application.
These are some of the important factors rt which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
The above principles make it clear that Courts have ample power to allow the application for amendment of the plaint. However, it must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties."
28. The Hon'ble Supreme Court in Chander Kanta Bansal Vs. Rajinder Singh Anand (2008) 5 Supreme Court Cases 117 has held that whether a party has acted with due diligence or not, would depend upon the facts and circumstances of each case. It has further held that this would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.
::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 26The Hon'ble Supreme Court further held that the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid .
surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. It has further held that once the trial commences on the known pleas, it will be very difficult for any side to reconcile. The Hon'ble Supreme of Court further held that in spite of the same, an exception is made in the newly inserted proviso. Where it is shown that in spite of due rt diligence, a party could not raise a plea, it is for the Court to consider the same. Accordingly, the Hon'ble Supreme Court has held that it is not a complete bar nor shuts out entertaining of any later application. It also held that the reason for adding proviso is to curtail delay and expedite hearing of cases. Paragraphs No. 15 and 16 of the said judgment are quoted hereinbelow:
"15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions.
It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application.::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 27
16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence"
.
means careful and persistent application or effort.
"Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care of required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who rt seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence"
means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."
29. Therefore, it is evident from the law which has been discussed above that as per the Hon'ble Supreme Court that "due diligence" means diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.
30. Further, in view of the law declared by the Hon'ble Supreme Court, another very important aspect of the matter which has to be taken into consideration while deciding an application ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 28 praying for an amendment in the pleadings is that whether an application for amendment is malafide or bonafide.
31. Coming to the facts of the present case, the present .
petitioner filed the suit for declaration and injunction against the respondents on 14.06.2004. The said suit was decreed on 20.12.2011, which is evident from copy of judgment dated 20.12.2011 (Annexure P-1). Appeal against the judgment and decree of dated 20.12.2011 was filed by the present respondents on 19.01.2012 as is evident from grounds of appeal (Annexure P-2).
32. rt This Court has already taken note of the fact that in paragraph No. 7 of the grounds of appeal, it was specifically pleaded by the present respondents that the plaintiff therein, i.e. present petitioner had no cause of action to challenge Will dated 21.08.2003 as the Will dated 29.12.1993 had been revoked independently by Shri Sukh Ram and the revocation deed was in possession of daughters of Sh. Sukh Ram. It is also a matter of record that this fact was never pleaded by the respondents in the written statement filed to the suit nor during the pendency of the suit any application was filed for amendment of the written statement to bring this fact on record. Incidentally, this fact was subsequently sought to be brought on record by way of an amendment in the written statement at the appellate stage by moving an application under Order 6 Rule 17 of the Code of Civil Procedure. The explanation given in the said application to justify 'due diligence' as to why the amendment was ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 29 being sought at such belated stage was that it was during the pendency of the appeal that the respondents received notice from the Court of learned Civil Judge (Junior Division) Bilaspur to appear .
before the said Court on 11.07.2012 in a Civil Suit filed by the daughters of Shri Sukh Ram alongwith which copy of plaint was also appended, from where they derived this knowledge that late Shri Sukh Ram had revoked Will dated 29.12.1993 on 17.07.1998 of through a registered revocation deed.
33. In my considered view, the explanation which was put rt forth by the respondents in the said application of theirs to explain "due diligence" was incorrect, wrong and concocted. This is evident from the fact that though the explanation which has been given in the application for filing application for amending the written statement at such a belated stage was that they came to know about the factum of late Sukh Ram having revoked Will dated 29.12.1993 from the plaint which they had received alongwith notice in a case which had been filed by the daughters of Sukh Ram, but the fact of the matter remains that the averments to this effect had already been incorporated in the grounds of appeal by the appellant which appeal was filed in January, 2012. The application for amendment of the written statement is dated 27.08.2012. There is no explanation as to how the averments qua the factum of revocation of the Will by deceased Sukh Ram were incorporated in the grounds of appeal if the version of the defendants is to be believed that they came to ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 30 know of this fact only after they received a copy of the plaint alongwith summons in a subsequent suit filed by the daughters of late Shri Sukh Ram. Thus, it is clear that the applicant has not .
approached the Court praying for amendment of the written statement with clean hands. This gives credence to the contention of the learned counsel for the petitioner that in fact the Civil Suit which had been filed by the daughters of Sukh Ram is at the behest of of respondents. A copy of the said Civil Suit is also on record as Annexure P-4 with the present petition. The filing of the application rt at such a belated stage otherwise also apparently does not seem to be a bonafide act on behalf of the respondents/applicant.
34. The Hon'ble Supreme Court in Union of India Vs. Pramod Gupta and others (2005) 12 SCC 1 has held that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings.
35. In my considered view, in the facts and circumstances of the present case, it cannot be said that the respondents/applicants had duly explained the delays and laches in moving application for amendment of the written statement at the appellate stage, especially in view of the fact that the explanation which has been given by the respondents/applicants in this regard is incorrect and not trustworthy. Further, the defendants have also not been able to explain that "due diligence" was exercised by them, but despite ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP 31 this, they could not be file the application praying for amendment of the written statement earlier. I have already held above that filing of the application at such a belated stage coupled with the averments .
on the basis of which the said application was filed was a clear indicator that there were smacks of malafide in filing of the application and the prayer for amending the written statement was not a bonafide innocuous act on the part of the of respondents/applicants. Not only this, the amendment which has been allowed by learned Appellate Court, even otherwise could not rt have been allowed as apparently it has changed the entire nature of the case. All these relevant aspects of the matter have not been gone into by the learned Court below while allowing the application filed by respondents/applicants to amend the written statement.
36. Therefore, in my considered view, the order dated 05.09.2013 passed by the learned Appellate Court vide which it has allowed the application filed by the respondents/applicants to amend the written statement is not sustainable in law and the same is accordingly set aside and the petition is allowed in the above terms. No order as to costs.
(Ajay Mohan Goel) Judge July 21, 2016 (bhupender) ::: Downloaded on - 15/04/2017 20:51:36 :::HCHP