Allahabad High Court
Braj Bhushan Lal Awasthi vs Smt. Urmila (Since Deceased) And 11 ... on 28 July, 2022
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 A.F.R. Reserved On : 08.04.2022 Delivered On :28.07.2022 Case :- MATTERS UNDER ARTICLE 227 No. - 115 of 2022 Petitioner :- Braj Bhushan Lal Awasthi Respondent :- Smt. Urmila (Since Deceased) And 11 Others Counsel for Petitioner :- Dharmendra Kumar Tripathi Counsel for Respondent :- Shobhit Saxena,Kirti Kumar Nirkhi Hon'ble Neeraj Tiwari,J.
Heard learned counsel for petitioner and Sri Kirti Kumar Nirkhi, learned counsel for opposite party.
Present petition has been filed seeking following reliefs :-
"(I) Set aside the order dated 01.12.2021 passed by the 3rd Additional District Judge, Kanpur Dehat in Civil Revision No. 25/2013 (Braj Bhushan Vs. Smt. Urmila Devi and others) as well as order dated 11.07.2013 passed by Additional Civil Judge (Senior Division), Kanpur Dehat.
(II) Direct the court below to allow the amendment application (paper No. 289-Ka) dated 08.04.2013 filed by the petitioner before the Trial Court."
Learned counsel for petitioner submitted that plaintiff-petitioner has filed Original Suit No. 2 of 1993 along with interim injunction application in the year 1993 for cancellation of sale deed, which was rejected vide order dated 08.02.1994. Against the said rejection order, plaintiff-petitioner preferred Appeal No. 173/1994. During the pendency of appeal, plaintiff-petitioner has filed amendment application for amending the plaint. The said appeal as well as amendment application was rejected. Against both the orders, plaintiff-petitioner has preferred Writ Petition No. 28148 of 1998 before this Court, which was dismissed vide order dated 17.09.2010. However, liberty was given to the plaintiff-petitioner to file amendment application before the Court below. It is next submitted that in compliance of order dated 17.09.2010, plaintiff-petitioner has filed amendment application in Original Suit No. 2 of 1993 under Order VI Rule 17 read with Section 151 CPC on 08.04.2013. In amendment application, he has clarified the facts and also brings on record certain new facts, which was not in his knowledge at the time of filing of plaint. Opposite party has also filed objection and trial Court vide order dated 11.07.2013 has dismissed the amendment application on the ground of delay. Aggrieved by the order dated 11.07.2013, plaintiff-petitioner has preferred Civil Revision No. 25 of 2013 before the District Judge on 15.02.2014, which was also dismissed vide order dated 01.12.2021 without considering the facts of the case. Hence the present petition.
Learned counsel for petitioner submitted that plaintiff-petitioner has challenged the orders dated 01.12.2021 as well as 11.07.2013 basically on the ground that under Order VI Rule 17 of CPC, amendment application may be allowed at any stage of proceedings and the same cannot be rejected only on the ground of laches. Such dismissal order preclude the plaintiff-petitioner from justice. It is next submitted that while rejecting the amendment application, it is required on the part of Court below to see as to whether it is filed with ill intention or with clean hands. Court below was also required to see as to whether in case of rejection of amendment application, either of the parties would suffer from injustice or not, therefore, in the larger interest of justice, ignoring the delay, amendment application has to be allowed. In support of his contention, he has placed reliance upon the judgment of Apex Court passed in the matter of Prithi Pal Singh & another vs. Amrik Singh & others; 2013 0 Supreme(SC) 158 decided on 13.02.2013 and submitted that amendment application may be allowed even at the second appellate stage. Further, he has placed reliance upon the judgment of Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. & Ors.; 2012 0 Supreme(SC) 270 decided on 30.03.2012 and submitted that while considering the amendment application filed under Order VI Rule 17 of CPC, it is required on the part of Court below to take liberal view. In the matter of Mahila Ramkali Devi and others vs. Nandram (D) Thr. Lrs. and others; 2015 0 Supreme(SC) 438 and Mount Mary Enterprises vs. M/s. Jivratna Medi Treat Pvt. Ltd.; 2015 0 Supreme(SC) 89 decided on 30.01.2015, Apex Court has held that if amendment application has not been filed with malafide intention, it is required on the part of Court below to take liberal view. He further submitted that in the matter of B K Mittal vs. Sakya Centre Society and others; 2010 LawSuit(Utt) 1559 decided on 17.09.2010, High Court of Uttaranchal has also taken same view and held that amendment application cannot be rejected on the ground of delay, in case there is no injustice.
Learned counsel for petitioner further submitted that it is undisputed that original suit was filed in the year 1993 and provisions of CPC i.e. Order VI Rule 17 was amended vide Civil Procedure (Amendment) Act, 2002 (hereinafter referred to as ''Act, 2002') which came into force w.e.f. 01.07.2002. Rule 16(1)(b) of Act, 2002 provides that provisions of rules, 5, 15, 17 & 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code or Civil Procedure (Amendment) Act, 1999 and section 7 of this Act. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of State Bank of Hyderabad vs. Town Municipal Council; 2007 (1) SCC 765.
Sri Kirti Kumar Nirkhi, learned counsel for opposite party has vehemently opposed the submissions of learned counsel for petitioner and submitted that first of all, amendment application was rejected on the ground that amendment application so filed was not in accordance with Order VI Rule 17 of CPC, which provides that amendment can only be allowed prior to commencement of trial and further, after due diligence, if plaintiff-petitioner could not produce relevant facts. He also submitted that while dismissing Writ-C No. 28148 of 1998, though this Court has given liberty to the plaintiff-petitioner to file amendment application, but also directed the Court below to decide the appeal expeditiously and dispose of the Suit No. 2/1993 at the earliest. It is next submitted that intention of this Court was very much clear that the suit has to be decided at the earliest, but without any reason, after delay of more than three years, petitioner-plaintiff has filed amendment application again. Court below has rejected the same with clear cut finding of fact that evidence in the said suit is closed and matter is listed for argument. Further, in the amendment application, nowhere it is mentioned that amendment so required in the plaint, relevant facts are not known to the plaintiff-petitioner earlier. Therefore, Court below has rightly rejected the amendment application alongwith finding of fact not denied by the plaintiff-petitioner.
It is next submitted that not only this, earlier this Court vide order dated 17.09.2010 passed in Writ-C No. 28148 of 1998 has directed the Court below to decide the suit within one year. The said order was never produced before the Court below. Lastly, it is submitted that undisputedly, suit is pending since, 1993. Rejection of first amendment application has attained finality in the year 2010 with liberty to the plaintiff-petitioner to file fresh amendment application and also there was direction of this Court to decide the suit at the earliest, but no amendment application has been filed for more than three years. Therefore, there is no illegality in the order dated 01.12.2021 passed by Court below. He next submitted that plaintiff-petitioner has also filed Civil Misc. Writ-C No. 12630 of 2013, which is not disclosed in the affidavit and in that petition too, direction was issued by this Court vide order dated 08.03.2013 to decide the suit within six months. In support of his contention, he has placed reliance upon the judgment of this Court passed in Smt. Anju vs. Satish Kumar 2018 (127) ALR 557 and submitted that ingredients of Order VI Rule 17 of CPC is required to be fulfilled, meaning thereby amendment application can only be allowed in case facts are not brought into the knowledge of plaintiff-petitioner even after due diligence at the time of filing of suit.
I have considered the rival submissions of learned counsels for parties and perused the provisions of CPC applicable in the present matter as well as judgments relied upon.
Issue before the Court is as to whether in light of Order VI Rule, 17 of CPC, up to what stage, amendment application may be allowed and what would be the consequences of delay in filing of amendment application. For ready reference, Order VI Rule 17 is quoted below:-
"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 petitioner submitted that in case of amendment, Apex Court and this Court has taken consistent view that amendment application may be allowed even at second appellate stage and court below is required to take liberal view. He has placed reliance upon the judgment of Apex Court in the matter of Prithi Pal Singh (Supra). Relevant paragraphs of the said judgment is quoted below:-
"Shri P.S. Patwalia, learned senior counsel appearing for the Petitioners argued that even though this Court granted leave to Respondents No. 2 to amend the plaint, the learned Single Judge should have dismissed the second appeal as barred by time because the amendment was filed much after expiry of the limitation. He further argued that while dismissing the second appeal, the learned Single Judge did not consider the amendment made in Section 15 of the Act by Haryana Amendment Act No. 10 of 1995 and on this ground alone the impugned judgment is liable to be set aside.
12. In our opinion, there is no merit in the submissions of the learned Counsel. A reading of the order passed by this Court shows that the application for amendment filed by Respondent No. 2 was allowed without any rider/condition. Therefore, it is reasonable to presume that this Court was of the view that the amendment in the plaint would relate back to the date of filing the suit. That apart, the learned Single Judge has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time."
He has also placed reliance upon the judgment of Apex Court in the matter of Rameshkumar Agarwal (Supra). Relevant paragraphs of the said judgment is quoted below:-
"9. In Rajkumar Gurawara (Dead) through L.Rs v. S.K. Sarwagi and Co. Pvt. Ltd. and Anr.; (2008) 14 SCC 364, this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In paragraph 18, this Court held as under:
"...It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation...."
10. In Revajeetu Builders and Developers v. Narayanaswamy and Sons and Ors. (2009) 10 SCC 84, this Court once again considered the scope of amendment of pleadings. In paragraph 63, it concluded as follows:
"Factors to be taken into consideration while dealing with applications for amendments 6 3 . 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; (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 application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
11. It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 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 be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."
He further placed reliance upon the judgment of Apex Court in the matter of Mahila Ramkali Devi (Supra). Relevant paragraphs of the said judgment is quoted below:-
17. The application for amendment of plaint filed by Appellant No. 1 to make Appellant Nos. 2 to 5 fall under Class XVII of the Madhya Pradesh Land Revenue Code was rejected by learned Single Judge of the High Court on the ground that the same would change the nature of the suit which was filed 40 years ago, as the claim was made solely on the basis of Will and not on the basis of inheritance. The High Court allowed the appeal vide the impugned judgment as the Appellants had no locus standi to file the suit as Ajuddhibai could not have transferred her interest through a Will. Hence, present appeal by special leave by the Plaintiffs.
19. It appears thus while disposing of the appeal, the High Court has not gone into the amended plaint. By amendment, the Plaintiff-Appellant not only sought to add the names of Dinesh, Satish, Sanjay and Rajendra sons of Baijnath Prasad Saxena in the category of Plaintiffs, but also sought to make necessary amendment in paragraph 3 of the plaint. The averment sought to be incorporated in paragraph 3 of the plaint by amendment is reproduced hereunder:
"Vikalp me yadi vasiyatnama vaidya na mana jave to be Ajudhibai ke karibtar varies vadini ke ladke Rajendra, Dinesh, Satish aur Sanjay hi hai jo abhi nabalig hai aur yeha dava unke hito ko represent karte huai unki maliki ke adhar par bhi prastut hai. Vadini ke dekh-rekh me ladke rahte hai. Garj yahe hai ki har halat me prativadigan ki koi swatva v mukable vadini avam uske ladke nahi hai. Aur vadini vivadagrast aaraji ka kabja apne tatha ladkon ko aur se pane ki patra hai."
As translated in English "In alternative, if the will is not held valid, yet the Plaintiff's sons Rajendra, Dinesh, Satish, Sanjay, who at present are minors are near relations of Ajudhibai and this suit is submitted to represent their interests on basis of their ownership. The sons live in care of Plaintiff meaning thereby in every condition there is no right of Defendants competing Plaintiff. And the Plaintiff herself and on behalf of her sons is entitled to get possession of the suit land."
20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.
21. In our view, since the Appellant sought amendment in paragraph 3 of the original plaint, the High Court ought not to have rejected the application."
He next submitted that Apex Court has taken the same view in the matter of Mount Mary Enterprises (Supra). Relevant paragraphs of the said judgment is quoted below:-
7 . In our opinion, as per the provisions of Order 6 Rule 17 of the Code of Civil Procedure, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the Defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs. 13,50,000/- but as the market value of the property was actually Rs. 1,20,00,000/-, the Appellant-Plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.
8. It is also pertinent to note that the Defendant had made an averment in para 30 of the written statement filed in Suit No. 1955 of 2010 that the Plaintiff had undervalued the subject matter of the suit. It had been further submitted in the written statement that the market value of the suit property was much higher than Rs. 14 lacs. The Defendant had paid Rs. 13.5 lacs for the said premises in the year 2002 when the said premises had been occupied by a tenant bank.
Even according to the Defendant value of the suit property had been undervalued by the Plaintiff in the plaint. If in pursuance of the averment made in the written statement the Plaintiff wanted to amend the plaint so as to incorporate correct market value of the suit property, the Defendant could not have objected to the amendment application whereby the Plaintiff wanted to incorporate correct value of the suit property in the plaint by way of an amendment. The other contention that the valuation had already been settled cannot also be appreciated since the High Court has held that the said issue was yet to be decided by the trial Court.
9 . The main reason assigned by the trial court for rejection of the amendment application was that upon enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected. With regard to amendment of plaint, the following observation has been made by this Court in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L.Rs. ; (2008) 8 SCC 511:
"1 6 . Insofar as the principles which govern the question of granting or disallowing amendments Under Order 6 Rule 17 Code of Civil Procedure (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 Code of Civil Procedure postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors.; (1957) 1 SCR 595 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.
10. In our opinion, on the basis of the aforestated legal position, the amendment application made by the Plaintiff should have been granted, especially in view of the fact that it was admitted by the Plaintiff that the suit property was initially undervalued in the plaint and by virtue of the amendment application, the Plaintiff wanted to correct the error and wanted to place correct market value of the suit property in the plaint."
He further placed reliance upon judgment of High Court of Uttaranchal passed in B K Mittal (Supra) in which Court has held that amendment application cannot be rejected on the ground of laches. Relevant paragraphs of the said judgment is quoted below:-
7. The purpose of Order VI, Rule 17 of the Code of Civil Procedure is to allow either party to amend their pleadings in such manner and on such terms as may be just. The power to allow the amendment is not only discretionary but is also wide and could be exercised at any stage of the proceedings in the interest of justice. The Supreme Court in a catena of decisions has consistently held that the Court should adopt a liberal approach and allow a party to take all kinds of stand which they may choose and that the Court should not adopt a hyper-technical approach. The Supreme Court held that a liberal approach should be adopted and, as far as possible, amendment should be allowed, especially, when the other side could be compensated with cost.
8. In the light of the aforesaid, the Court finds that the Plaintiff had taken a plea that the extract of the sale-deed was read by him which he noted and, subsequently, when he got hold of the copy of the sale-deed, he filed the amendment application seeking the relief for declaration that the said sale-deed should be declared void. Since the essential facts had already been stated in the plaint, the Court below should have allowed the amendment and should not have taken a view that the amendment sought was barred by limitation. The question whether the relief sought to be incorporated in the plaint was barred by limitation or not was a question of fact which was required to be adjudicated and, for that purposes, a necessary issue was required to be framed. At the stage of considering the amendment, such question could not have been adjudicated since this Court is of the opinion that it was a question of fact which required evidence."
So far as facts of the case are concerned, it is undisputed that after rejection of Original Suit No. 2 of 1993, petitioner-plaintiff has filed appeal and during the pendency of appeal, he has filed amendment application for amending the plaint, which was also rejected. Against both the orders, petitioner-plaintiff has preferred Writ Petition No. 28148 of 1998 before the this Court, which was dismissed vide order dated 17.09.2010 with liberty to the plaintiff-petitioner to file amendment application before the Court below. It is also undisputed that while dismissing the writ petition, this Court has also directed to decide the appeal expeditiously and dispose of Original Suit at the earliest. Instead of filing amendment application forthwith, petitioner-plaintiff has filed amendment application on 08.04.2013 i.e. almost about three years after closing of evidence and when the case was listed for final argument. Now the question is as to whether such amendment application may be entertained by the Court below or not.
There is no doubt on this point that Apex Court has taken consistent view that amendment application may be allowed at the second appellate stage, Court is required to take liberal view and further amendment application would not be rejected on the ground of delay, in case delay is bonafide without any ill intention.
There is also no dispute on this point that as per Act, 2002, amended provisions would not be applicable to the pending pleadings, but it is required to be seen as to whether purpose of filing of amendment application is bonafide or only to delay the proceedings.
Now, issue before the Court is to decide under which circumstances, amendment application may be allowed even if it has been filed at a very belated stage. In the present case, it is undisputed that liberty was given to petitioner-plaintiff to file fresh amendment application coupled with this fact that there was also direction of this Court to decide the appeal as well as suit at the earliest. Not only this, in Writ-C No. 28148 of 1998, this Court vide order dated 17.09.2010 had directed to decide the suit within one year, which is not disclosed. Apart that, petitioner-plaintiff himself has filed Civil Misc. Writ-C No. 12630 of 2013, which which was disposed of vide order dated 08.03.2013 with direction to the Court below to decide the suit within six months, which is also not disclosed in the present petition. In compliance of order of High Court, Court below has proceeded to decide the suit and accordingly, evidences of both the parties were closed and matter was listed for final argument. At this stage, petitioner-plaintiff has preferred amendment application, which was rejected vide impugned order dated 01.12.2021.
This Court is of the firm view that once the Court has granted liberty to file second amendment application, there is no occasion for the petitioner-plaintiff to wait for three years when the suit was listed for final hearing and also, in the mean time, he himself has filed Civil Misc. Writ-C No. 12630 of 2013 before this Court for early disposal of suit. In fact, it is nothing but an attempt to linger on the proceeding by filing such amendment application, therefore, Court below has taken right view that it is nothing but an attempt to raise the complexity in the matter and allowing the amendment application would change the nature of case based on those facts which were very well in the knowledge of petitioner-plaintiff since the date of filing of suit. Though, the judgments so cited by counsel for petitioner may favour petitioner-plaintiff in case it was filed with bonafide intention to meet the end of justice, but in the present case, those judgments would not come into the rescue of petitioner for the reasons that intention of petitioner-plaintiff is not fair in filing amendment application. On one hand, petitioner-plaintiff himself has filed writ petitions for early disposal of suit and on the other hand, he has taken chance to linger on the proceeding by filing amendment application at a very belated stage.
Therefore, while dealing such situation where amendment application is filed at a very belated stage, it is required to be seen as to whether it has been filed with clean hand, bonafide intention or only with intention to delay the proceedings and if the second one is found, no interference is required as the present case is.
Under such facts of the case, this Court is not impressed to interfere with the impugned orders dated 01.12.2021 and 11.07.2013.
Writ petition lacks merit and is, accordingly dismissed.
No order as to costs.
Order Date :- 28.07.2022 Sartaj