The vs Unknown on 5 May, 2022

[Cites 10, Cited by 0]

Andhra Pradesh High Court - Amravati

The vs Unknown on 5 May, 2022

Bench: D. Ramesh

            THE HONOURABLE SRI JUSTICE D. RAMESH

                        I.A.NO.1 of 2022
                                IN
                    Appeal Suit No.239 of 2012

ORDER:

The Petitioner/Appellant-Company has filed the present I.A. seeking to amend the written statement filed in O.S.No.193 of 2005, by adding the following Para No.14 (a) after Para No.14.

14(a). It is further submitted that the suit itself is not maintainable for declaration without seeking consequential relief under provisions of Section 34 of the Specific Relief Act, 1963. A Court cannot pass any order of declaration or status of right when the plaintiff being able to seek further relief than a mere declaration of title omits to do so. I further submit that the prayers which were asked for are contradictory to each other. Plaintiffs cannot seek contradictory reliefs. Therefore, the suit is liable to be dismissed on this ground also."

2. Learned counsel for the petitioner-company submitted that the respondents herein have filed suit for declaration that the rights and liabilities created by lease deeds dated 31-12-2001 stand extinguished with shifting of the retail out let from Achutapuram to Pedagantyada, on termination of the lease on 29.10.2005 and further they have prayed for eviction of the defendant company from scheduled premises by removing the structures fixed by the defendant company and finally they sought for damages for use and occupation of the premises with effect from 01.12.2005 till the date of vacating the premises.

3. Learned counsel for the appellant has submitted that though the written statement was filed in the suit, they have not taken the plea of maintainability of the suit without any consequential relief. As the suit for declaration is not maintainable without any consequential relief, the present application is filed for amending written statement by inserting paragraph 14(a), after Paragraph 14.

4. Learned counsel for the respondents has strongly opposed the ground raised by the appellant with regard to the maintainability of the present I.A. The I.A. is filed only with an intention to drag the proceedings. In the suit which was decreed way back in year 2011, the appellant filed an appeal in year 2012. Now, when the matter is taken up for final hearing, after a decade, the appellant has filed the present Application. On that ground alone the I.A. has to be dismissed.

5. Learned counsel for the respondents further submitted that except the preset I.A., there are no other IAs pending for consideration in the present appeal. In fact the matter has come up before the Court on 21.12.2021, for final hearing and the docket proceedings dated 03.02.2022, clearly indicates that the matter is being taken up for final hearing and was adjourned at request of the appellant‟s counsel for preparation of paper book. Learned counsel for the respondents further submits that in fact the learned counsel for the appellant has argued partly on 25.03.2022 and the matter has been adjourned for further hearing and at that stage, the present application is filed. To support the said contention, the learned counsel for the respondents 3 has relied on the provision under Order VI Rule 17 of the Code of Civil Procedure, 1908, which reads as follows:

"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.

Learned counsel for the respondents submitted that the intention of the statute is clear that either of the parties can alter or amend pleadings in such manner on such grounds at any time, at any stage of the proceedings for determining the real questions in controversy between the parties. As per the proviso to Rule 17 no application for amendment shall be allowed after the trial has commenced. Except in cases where the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial.

6. In the instant case the suit is filed for declaration in the year 2005 and in fact along with the declaration of the rights they also sought for eviction of the defendant company from the suit schedule properties. Hence, as contended by the appellant, this is not mere declaratory suit. There is an additional/consequential relief also prayed by the defendants. Hence, there is no necessity to amend the plaint at this stage.

7. To support the contentions of the appellant, relied on the following judgments of the Apex Court in Ganesh Trading Co., v.

Moji Ram1

12. Purushottam Umedbhai & Co. v. M/s. Manilal & Sons(1), was a case of a partnership firm where this Court pointed out that Section 4 of the Partnership Act uses the term "firm" or the "firm name" as a compendious description of all the partners collectively". Speaking of the provisions of Order 30 Civil Procedure Code this Court said there (at p. 991) "The introduction of this provision in the Code was an enabling one which permitted partners constituting a firm to sue or be sued in the name of the firm. This enabling provision, however, accorded no such facility or privilege to partners constituting a firm doing business outside India. The existence of the provisions of O. XXX in the Code does not mean that a plaint filed in the name of a firm doing business outside India is not a suit in fact by the partners of that firm individually".

16. We think that the amendment sought does not alter the cause of action. It only brings out correctly the capacity of the plaintiff suing. It does not change the identity of the plaintiff who remains the same.

In Pandit Ishwardas v. State of Madhya Pradesh2, the Apex Court held as follows at paragraph 6 :

"6. In the present case the written statement of the Government was filed in the Trial Court long before the Dewas Court decided the other case. The judgment of the Trial Court was however rendered after the decision by the Dewas "Court in the other case put it has been explained by the" Government that no amendment of the written statement was sought in the Trial Court because an appeal was pending in the High Court of Madhya Pradesh against 1 (1978) 2 Supreme Court Cases 91 2 (1979) 4 Supreme Court Cases 163 5 the decision in the Dewas suit. Amendment of the written statement was sought very soon after the High Court affirmed the decision of the Dewas Court. The explanation of the Government for not seeking the amendment earlier was accepted by the High Court and we are unable to see any ground for interfering with the discretion exercised by the Appellate Court."

In Harcharan v. State of Haryana3, the Apex Court held as follows at paragraph 4 :

"4. It is a well settled principle that the best evidence with regard to evaluation of price of land in a proceeding for ascertainment of compensation for land acquired under the Act is the Award of the Court, subject of course, to the comparison of the land areawise, topography-wise and usewise. The appellant sought amendment relying on this principle. The question is whether the High Court was justified in dismissing this petition in limine. Order VI, Rule

17 in terms provides that 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 necessary for the purpose of determining the real questions in controversy between the parties."

In Rajesh Kumar Aggarwal v. K.K. Modi 4, the Apex Court held as follows at paragraphs 17 & 18 :

"17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in 3 (1982) 3 Supreme Court Cases 408 4 (2006) 4 Supreme Court Cases 385 6 the new suit cannot be permitted to be incorporated in the pending suit.

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. "

Based on the law laid down by the Apex Court in the above cited decisions, the learned counsel for the petitioner-company submits that it is not altering the nature of the suit. The amendment can be allowed at any stage even at the appellate stage there is no bar to file an application. In fact the Apex Court in Ganesh Trading Co., v.

Moji Ram as well as in Pandit Ishwardas v. State of Madhya Pradesh held that at appellate stage the applications have been filed under Order VI Rule 17 and the Court has suggested that amendment can be allowed at the appellate stage also. In view of the same, the learned counsel for the appellant submitted that as per the legal advice the present application is filed for amendment of the written statement. Accordingly, requested to allow the Application.

8. Learned counsel on behalf of the respondents has relied on the following judgment of Andhra Pradesh High Court in -

(1) Oriental Insurance Company Limited v. A. Anjaneyulu5 "6.. In the decision reported in Rachhpal Singh v. Union of India, , which is the decision of the High Court of Punjab & Haryana it is observed that an amendment which completely changes the nature of the case and .totally displaces the earlier claim cannot be allowed. In that case it was originally contended that the driver was driving the bus at a normal speed and the accident took place on account of the negligence of the train-driver who did not blow the whistle before crossing the unmanned level crossing. Subsequently the claimant sought amendment of the claim application so as to plead that the accident took place on account of the negligence of the bus driver also. The learned Judge categorically stated that such an amendment cannot be allowed as it totally changes the nature of the case and displaces the earlier contention in the claim petition. In the present case also the specific contention of the claimant in the original claim petition that he travelled as a passenger by paying fare of Rs.5.00.

Subsequently in the amendment petition it was sought to be contended that he travelled as owner of the goods by carrying a rice- bag and paying hire charges of Rs.10.00 to the driver. There were no bona fides in such subsequent amendment sought to be made and such amendment was sought to be effected only for the purpose of making the Insurance Company liable by contending that he travelled as owner of the goods and not as a passenger. The vehicle mentioned in the claim petition was shown as a Matador Van and it was not stated that it was a goods vehicle. Evidently, having come to know during the course of the trial of the case that the vehicle that was involved in the accident was a goods vehicle the claimant proposed to change the very capacity in which he was travelling in that vehicle by the time of accident by contending that he travelled as a owner of the goods by carrying a rice-bag. Under these circumstances, the Tribunal has clearly erred in allowing such an amendment petition which clearly changes the nature of the claim as put forward originally in the claim petition and such amendment cannot be permitted."

1998 SCC Online AP 871 : (1999) 2 ALT 301 8 (2) Amrutha v. G.Ravinder Reddy6 "11. It may be true that the present amendment is intended to elaborate some of the aspects, which were not specifically dealt with in the earlier written statements. Order 6 Rule 17 C.P.C. mandates that the circumstances under which the plea could not taken on earlier occasion and how the necessity arose to introduce the same through amendment, have to be explained. Amendments cannot be ordered as a matter of course. Viewed in this Context, it is evident that the respondents based their claim, through the present amendment, only on the alleged lapse on the part of the previous Counsel. If what is stated by them is true, it should have entailed initiation of steps, or exchange of notices, between the respondents and their previous Counsel. In the absence of the same, it has to be proceeded as through, what is stated by them is true and concerned Counsel has to bear the blame. Ordering amendment on this context would amount to recording a finding as to the lapse on the part of the previous Counsel. Such an approach would be unsafe for the legal profession as a whole. In a given case, the parties may throw blame on the legal profession and it members, as a poly, to advance their causes, or to cover lapses on their part. Hence, this Court finds that the respondents cannot be permitted to file these applications simply throwing the blame on the previous Counsel, without satisfying the Court, at least prima facie as to such lapse."

(3) Chander Kanta Bansal v. Rajinder Singh Anand7

12. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, unless the court comes to the conclusion 6 2006 SCC Online AP 858 : (2006) 6 ALD 757 : (2007) 1 ALT 466 7 (2008) 5 Supreme Court Cases 117 9 that in spite of due diligence, the party could not have raised the matter before the commencement of trial. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. 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.

13. 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 others case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.

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.

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 required from a person in a given situation. „Due diligence‟ means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) „due 10 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.

18. 12. As rightly referred to by the High Court in Union of India v. Pramod Gupta (dead) by LRs and Others [JT 2005 (8) SC 203], this Court cautioned 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.

9. Learned counsel on behalf of the respondents has addressed his arguments based on the observations made by the Apex Court in Chander Kanta Bansal v. Rajinder Singh Anand wherein it is held that according to the new proviso no application for amendment shall be allowed after the commencement of the trial, 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 and then only the application for amendment could be considered. Further, it is held that this provision 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, subsequent to commencement of trial. In fact due diligence has been considered by the Apex Court and "due diligence" means reasonable diligence, which a prudent man would exercise in the conduct of his own affairs. The Apex Court in Union of India v. Pramod Gupta 8 held that delay and laches on the part of the parties to the 8 1 (2005) 12 SCC 1 11 proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings.

10. In the instant case, though the respondents have filed the suit in the year 2009 and the petitioner-company has filed written statement long back, even after filing of the appeal and the matter came up for consideration for hearing since 2021, the petitioner-

company has now chosen to file this application. While the matter is under part heard, at a belated stage, to delay/drag the proceedings, the petitioner-company has filed the present application under Order VI Rule 17.

11. Further, Proviso to Order VI Rule 17 clearly stipulates that no application for amendment shall be allowed after commencement of the trial. The intention of the legislature is clear for introducing such provision that normally the Court should not entertain the application under Order VI Rule 17, after commencement of trial.

12. Considering submissions and on a perusal of the docket proceedings, it can be concluded that the present petition is filed by the petitioner-company only to drag the matter. In fact a perusal of the docket clearly disclosed that since 21.12.2021 the matter has been adjourned at the instance of the appellant. The matter, after 2012, has seen light of the day on 21.12.2021 and it got adjourned at the request of the appellant‟s counsel in the following manner:

From 21.12.2021 to 03.02.2022;

from 03.02.202 to 18.02.2022;

from 18.02.2022 to 07.03.2022;

from 07.03.2022 to 22.03.2022;

and from 22.03.2022 to 25.03.2022.

On 25.03.2022, learned counsel for the appellant has argued the matter in part and the matter has been adjourned again to 30.03.2022. At that stage, the present I.A. is filed.

13. Considering the submissions of both counsel, on perusal of the entire material available on record and considering the observations of the Apex Court in judgments cited supra and as per Order VI Rule 17, the present petition is belated one and accordingly, the same is dismissed.

____________________ JUSTICE D. RAMESH May, 2022 GBS

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Andhra Pradesh High Court - Amravati