Jharkhand High Court
Manoj Kumar Maheshwari Son Of Sri ... vs Gossenner Evengelical Lutheran Church ... on 11 January, 2023
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 6522 of 2012
Manoj Kumar Maheshwari son of Sri Madhusudan Maheshwari,
resident of Flat No. 705, 7th Floor, Panchwati Building, Kanke Road,
P.O. Ranchi, P.S. Gonda, District Ranchi
... ... Petitioner
Versus
Gossenner Evengelical Lutheran Church (also known as GEL
Church), Main Road, P.O. Ranchi, P.S. Lower Bazar, District Ranchi
... ... Respondent
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Rohit Roy, Advocate
: Ms. Apurva Pathak, Advocate
: Mr. Tarun Mahto, Advocate
For the Respondents : Mr. Jai Prakash, Sr. Advocate
: Mr. Yogesh Modi, Advocate
: Miss Ruchi Mukti, Advocate
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18/11.01.2023 Learned counsel for the parties are present.
2. This writ petition has been filed for the following reliefs:-
"(i) For quashing the order dated 12.09.2012 passed by the learned Additional Munsif-II, Ranchi in T.S. No. 212 of 2005 in terms of which a petition under Order VI Rule 17 of the Code of Civil Procedure filed on behalf of the petitioner for some formal amendments in the plaint has been rejected.
(ii) Upon quashing the order dated 12.09.2012 passed by the learned Additional Munsif-II, Ranchi in Title Suit No. 212 of 2005 be further pleased to direct the learned court below to proceed in accordance with law."
Argument of the petitioner:
3. Learned counsel for the petitioner has submitted that by the impugned order, the amendment sought for in the prayer of the suit has been rejected. He submits that perpetual lease was entered into between the parties with renewal clause and then suit was filed seeking renewal by way of specific performance of contract as the initial period of lease had expired in the year 2002. The suit for specific performance was filed in the year 2005. He submits that the suit remained pending for years together and the period for which renewal was sought has also expired. Thereafter the petitioner filed a petition for amendment seeking an additional relief that the petitioner is entitled for successive renewal upon expiry of every 10 years. Learned counsel submits that one of the issues framed by the learned 2 court below is whether the lease was a perpetual lease. He submits that the amendment sought for will not change the nature of the suit in any manner and it will avoid multiplicity of proceedings in view of the fact that with the passage of time, the period of renewal has expired. Learned counsel has relied upon the following judgments: -
(i) 2018 SCC Online Jhar. 386 Para 8 and 9;
(ii) 2018 SCC Online Jhar. 312 para 3;
(iii) (2015) 4 SCC 182 para 8,9 and 10;
(iv) (2008) 8 SCC 511 Para 16; and
(v) 2022 SCC Online SC1128 para 18 to 33 and 70.
4. He submits that the impugned order is perverse and calls for interference. He submits that the learned court below has not properly considered the scope for amendment and has rejected the amendment petition.
Argument of the respondent:
5. Learned senior counsel appearing on behalf of the respondent on the other hand has opposed the prayer and has submitted that the impugned order is a well-reasoned order. The trial has already commenced and if the amendment is allowed, it will unnecessarily delay the proceedings before the learned court below. The learned counsel has also submitted that the prayer seeking a declaration that the petitioner is entitled for successive renewals could have been made at the time of institution of suit itself and therefore in view of the amendment in CPC, whereby proviso has been added, the impugned order does not call for any interference. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2005) 6 SCC 344 para 26 and also judgment reported in (2020) 11 SCC 549 para 7 & 8. The learned counsel submits that the petitioner has every right to file another suit for successive period, but so far as present suit is concerned, it is confined only to the 1 st renewal and no more.
Finding of the Court
6. In this case, the petitioner has prayed for quashing the order dated 12.09.2012 passed by learned Additional Munsif-II, Ranchi in Title Suit No. 212 of 2005 whereby a petition under Order VI Rule 17 3 of the Code of Civil Procedure filed seeking amendment of the plaint has been rejected.
7. The Plaintiff had instituted a suit for specific performance of contract seeking a direction upon the defendant to execute and get registered a proper deed of lease valid for 10 years w.e.f. 01.11.2002 on a monthly rental of Rs. 482 on terms and conditions as contained in lease deed dated 06.11.1992.
8. The suit was instituted on 10.11.2005 and the petitioner being the plaintiff claims to be in possession of the property by virtue of registered lease deed executed on 06.11.1992 w.e.f. 01.11.1992 on monthly rental of Rs. 438 with absolute right to the plaintiff to get the lease renewed after every succeeding 10 years on an enhanced rental of 10% on every succeeding renewal. In additional to monthly rental, the petitioner claims to have paid a sum of Rs. 28,000/- as security deposit to the lesser.
9. As per the petitioner, the period of 10 years was about to be completed and consequently the plaintiff served a notice upon the defendant for renewal of lease of with enhancement of 10% rent on 27.06.2002 and in December, 2002 enhanced rate was also tendered and on their refusal it was sent through postal money order every succeeding month. The defendant is contesting the suit by filing his written statement. The issue was settled on 10.07.2009 and one of the issues to be decided is whether there is any lease in perpetuity between the plaintiff and defendant with respect to suit property.
10. The suit remained pending and in the meantime, the second duration of lease was to be completed on 31.10.2012, therefore a petition seeking amendment of the plaint was filed on 13.06.2011. The amendment in the plaint was sought for only in the prayer portion. The comparative relief in the plaint with proposed amendment is as under:-
Relief without amendment Relief with amendment
(a) A decree for specific performance of (a)A decree for specific performance of contract may be passed directing the contract may be passed directing the defendant to execute and register a defendant to execute and register a proper deed of lease valid for 10 years proper deed of lease second duration with effect from 01.11.2002 on monthly for 10 years with effect from rental of Rs. 482/- with respect to the 01.11.2002 on monthly rental of Rs.
suit land on terms and conditions 482/- with respect to the suit land on contained in the lease deed dated terms and conditions contained in 06.11.1992; lease deed dated 06.11.1992 with 4
(a) In the event of failure on part of mandatory provision for renewal of the defendant to comply the said lease for successive period each of 10 order to execute and get years duration with the same terms registered such deed of lease, the and condition except 10% increase in court; monthly rent on every renewal of
(b) Cost of the Suit; lease;
(c) Any other or further relief (a) or In the event of failure on part of the reliefs for which the plaintiff is defendant to comply the said order to found entitled to may be execute and get registered such deed of granted; lease, the court;
(b) Cost of the Suit;
(c) Any other or further relief or reliefs for which the plaintiff is found entitled to may be granted;
11. The defendant opposed the prayer and ultimately the application seeking amendment was rejected.
12. Upon perusal of the impugned order dated 12.09.2012, it is apparent that the plaintiff had moved ahead with the trial of the case and had examined as many as 5 witnesses. This aspect of the matter is not in dispute by either party. It if further not in dispute that the defendant has filed an eviction suit against the plaintiff. It is further not in dispute that the suit is governed by amended provision of Order VI Rule 17. The suit itself was filed after amendment in CPC. Order VI Rule 17 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 conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial"
13. The proviso to Order VI Rule 17 clearly provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.
14. The principles governing the question of granting or disallowing amendment under Order VI Rule 17 of CPC as it stood prior to the amendment in CPC was subject matter of consideration before the Hon'ble Supreme Court in the judgement of North Eastern 5 Railway Administration Vs. Bhagwan Das" reported in (2008) 8 SCC 511. In the said judgement, it was held as follows:
"16. Insofar as the principles which govern the question of granting or disallowing 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 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."
15. The aforesaid judgement has been followed in (2015) 4 SCC 182 (Mount Mary Enterprises v. Jivratna Medi Treat (P) Ltd.) and also in the judgement reported in 2018 SCC Online Jhar 312.
16. In the judgement passed by this Court reported in 2018 SCC Online Jhar 386, the amended provision of Order VI Rule 17 of CPC was taken into consideration and with regard to the insertion of proviso to Order VI Rule 17 CPC by way of amendment, it was held as follows:
"9. Order 6 Rule 17 CPC confers wide powers upon the court to permit amendment in the pleadings. By now it is well-settled that amendment in the pleadings can be allowed at any stage of the suit, even at the stage of final hearing in the suit. Proviso to Order 6 Rule 17 CPC, however, puts restrictions on the powers of the court to permit amendment in the pleadings. It provides that amendment in the pleadings shall not be permitted after trial in the suit has commenced, however, exceptions have been carved out through judicial pronouncements to proviso to Order 6 Rule 17 CPC."
17. The principles with regard to amendment under Order VI Rule 17 of CPC has been summarized by the Hon'ble Supreme Court in the judgement reported in (2022) SCC OnLine SC 1128 (Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Another). Paragraph 70 of the said judgement is quoted 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.
(iii) The prayer for amendment is to be allowed 6
(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.
(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 (See Vijay Gupta v.
Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897) 7
18. The learned counsel for the petitioner has, in particular, referred to paragraph 70(iii) of the aforesaid judgment to submit that the prayer for amendment is to be allowed if the amendment is required for effective and proper adjudication of the controversy between the parties and to avoid multiplicity of proceedings provided that the three conditions mentioned in the said sub-para are satisfied. He has also submitted that the amendment sought for would neither result in any injustice to the other side nor it seeks to withdraw any admission made by the petitioner nor it raises raise a time-barred claim. He has also referred to paragraph 70(ix) to submit that delay in applying for amendment alone is not a ground to disallow the prayer.
19. There is no doubt with regard to the aforesaid proposition of law. This Court is of the considered view that the amendment sought for in the present case is not required for effective and proper adjudication of the controversy between the parties, rather the same would enlarge the scope of the suit. The suit has been filed for only 1st renewal upon expiry of lease period and the petitioner is seeking to introduce a relief that the petitioner is entitled to successive renewals that too after an eviction suit has been filed by the defendant. It is important to note that the trial has already commenced and progressed substantially.
20. The aforesaid judgement reported in 2022 SCC OnLine SC 1128 (Supra) also clearly notices the distinction where the amendment is sought for before and after commencement of trial. Vide Paragraph 70(ix) it has been held that where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. Meaning thereby, the amendment sought after commencement of trial, is not required to be lightly taken. This becomes all the more clear when seen in the light of the proviso to Order VI Rule 17 CPC which mandates 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 parties could not have raised the matter before commencement of trial.
21. Considering the nature of amendment sought for in the present case, the condition precedent for allowing the amendment after commencement of trial in terms of proviso to Order VI Rule 17 is not 8 at all satisfied and accordingly the learned court below has rightly rejected the prayer for amendment.
22. In the judgment passed in the case of "Salem Advocate Bar Assn. (II) v. Union of India" reported in (2005) 6 SCC 344 it has been held in paragraph 26 as under:
26. Order 6 Rule 17 of the Code 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 has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.
23. In the judgment passed in the case of "Pandit Malhari Mahale v. Monika Pandit Mahale" reported in (2020) 11 SCC 549, it has been held as under:
"7. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai v. Padmalatha, this Court observed in para 19 as under:
(SCC p. 416) "19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed."
24. In the present case, admittedly the trial had commenced prior to the date of filing the application seeking amendment of the plaint. This court further finds that the relief which was sought for by the plaintiff in the original suit was a decree for specific performance of contract to execute and register a lease deed valid for 10 years w.e.f. 01.11.2002 on monthly rental of Rs. 482 with respect to the conditions contained in lease deed dated 06.11.1992 and through the amendment, the plaintiff is treating the relief as second duration and seeking 9 renewal of successive each of 10 years duration with the same terms and conditions except 10% increase in monthly rent upon every renewal of lease. The relief as sought for in the plaint related to only one renewal for 10 years and as per the amendment, the relief is sought to be modified for successive period each of 10 years duration.
25. This court is of the considered view that the prayer which is sought to be introduced through the amendment could have certainly been introduced at the time of filing the suit. The amendment sought for relates to successive renewals one after another. This court is of the considered view the learned court below has rightly held that the petitioner was aware of the terms and conditions of the lease deed and what the petitioner is seeking to incorporate through amendment was within the knowledge of the petitioner at the time of filing of the suit. This court finds that the suit was filed for only 1 st renewal of lease and no prayer was made in the suit seeking successive renewals although such prayer could have been made even at the time of filing of the suit. Thus the learned court below has rightly held that the petitioner has miserably failed to demonstrate or show that inspite of exercise of due diligence, the petitioner could not have raised the proposed amendment at the time of filing of the suit or even before the commencement of the trial. The learned court below has also taken note of the fact that the amendment was sought after the defendant had initiated an eviction suit against the plaintiff with respect to the same premises. This court is of the considered view that the condition precedent for seeking amendment in the plaint in the light of the proviso to Order VI Rule 17 of the CPC has not been satisfied in the present case. In view of the ratio laid down by the Hon'ble Supreme Court in the case of "Pandit Malhari Mahale v. Monika Pandit Mahale" reported in (2020) 11 SCC 549, para 26 and "Pandit Malhari Mahale v. Monika Pandit Mahale" reported in (2020) 11 SCC 549, para 7 and 8 , this court finds that the learned court below has passed well-reasoned order denying amendment of the plaint after commencement of trial. The impugned order passed in the present case is a well-reasoned order considering the stage of the suit and the nature of amendment sought for. Accordingly, this court finds no 10 reason to interfere with the impugned order. This writ petition is hereby dismissed.
26. As already submitted by the learned counsel for the respondent that the petitioner has every right to file another suit for successive period(s) in accordance with law, but so far as present suit is concerned, it is confined only to the 1st renewal and no more.
27. Interim order, if any, stand vacated.
28. Pending I.A., if any, is closed.
(Anubha Rawat Choudhary, J.) Binit