Himachal Pradesh High Court
Mrs. Surindra Devi & Ors vs Parkash Chand on 21 April, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 478 of 2015.
Reserved on: 19.04.2016.
Decided on: 21.04.2016.
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Mrs. Surindra Devi & ors. ......Petitioners.
Versus
Parkash Chand .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1. Yes.
For the petitioners: Mr. Y.P.Sood, Advocate.
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For the respondent: Mr. R.K.Bawa, Sr. Advocate, with Mr. Jeevesh Sharma,
Advocate.
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Justice Rajiv Sharma, J.
rt This petition is directed against the order dated 10.8.2015, rendered by the learned Civil Judge (Sr. Divn.), Shimla, H.P., in CMA No. 13/6 of 2015 in Civil Suit No. 165/1 of 2013/2009.
2. Key facts, necessary for the adjudication of this petition are that the petitioners-plaintiffs (hereinafter referred to as the plaintiffs) have filed a suit for possession of the land comprised in Khewat No. 7, Khatoni No. 15 min, Kh. Nos. 51, 52, 54, 55, 56, 65 and 70 kite-7 measuring 0-08-54 hectares, situated in Mohal Dhasholi, Tehsil Chopal, Distt. Shimla, H.P., against the respondent-defendant (hereinafter referred to as the defendant) on the ground that he was licensee over the suit property and after the expiry of the licence, he was required to hand over the suit land to the plaintiffs.
The defendant filed written statement. The defendant also moved an application under Order 6 Rule 17 CPC, whereby he sought amendment of the written statement by taking plea that the suit was not maintainable and alternative plea was sought to be taken that in case the Court comes to the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:09:21 :::HCHP 2conclusion that defendant was licensee, in that event, licence being permanent cannot be revoked. The application was contested by the .
plaintiffs. The learned Civil Judge (Sr. Divn.), Shimla, allowed the application vide order dated 10.8.2015. Hence, this petition.
3. I have heard learned counsel for the parties and gone through the impugned order dated 10.8.2015, carefully.
4. The issues were framed by the learned trial Court on 10.6.2010.
of The plaintiffs have already closed the evidence on 7.9.2012. The case was listed for the evidence of the defendant. The defendant has also led part of his evidence.
rt
5. The application under Order 6 Rule 17 CPC has been filed belatedly by the defendant. A new plea tried to be raised by the defendant was always available to him at the time of filing the written statement. The defendant has failed to show as to why the proposed amendment could not be incorporated despite due diligence. The learned trial Court has come to the wrong conclusion that no prejudice would be caused to the plaintiffs by allowing the amendment. Filing of the application at this belated stage, when the defendant was leading his evidence, would certainly cause prejudice to the plaintiffs. The allowing of the application at this belated stage would also delay the decision of the suit which was instituted far back in the year 2009.
Order dated 10.8.2015 is neither speaking nor detailed. The pleas raised by the plaintiffs while opposing the application ought to have been addressed specifically by the learned trial Court.
6. Their lordships of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vrs. Union of India and another, reported in ::: Downloaded on - 15/04/2017 20:09:21 :::HCHP 3 (2011) 12 SCC 268, have held that when application is filed after the commencement of the trial, it must be shown that inspite of due diligence, .
such amendment could not have been sought earlier. Their lordships have held as under:
"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 of 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 rt diligence, such amendment could not have been sought earlier.
8). 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 be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.
9) 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 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:
::: Downloaded on - 15/04/2017 20:09:21 :::HCHP 4(i) Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626, at para 5:
"5. 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 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 delay and laches in making the application for amendment cannot be a ground to refuse the rt 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 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."
(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 in Baldev Singh v. Manohar Singh. In para 17 of the decision, 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.::: Downloaded on - 15/04/2017 20:09:21 :::HCHP 5
It appears from the 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 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."
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(iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385, at paras 15 & 16:
"15. The object of the rule is that the courts should try the merits rt 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 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 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;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;::: Downloaded on - 15/04/2017 20:09:21 :::HCHP 6
(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."
The above principles make it clear that Courts have ample power to allow the application for amendment of the plaint. However, it must be of 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."
7. Their lordships in the case of J.Samuel and others vrs. Gattu rt Mahesh and others, reported in (2012) 2 SCC 300, have held that omission of specific plea that inspite of due diligence the party could not have raised the matter before the commencement of the trial, mandatorily amounts to negligence and lack of due diligence. Their lordships have explained the term "due diligence". It has been held as under:
"15) In this legal background, we have to once again recapitulate the factual details. In the case on hand, Suit O.S. No. 9 of 2004 after prolonged trial came to an end in September, 2010. The application for amendment under Order VI Rule 17 CPC was filed on 24.09.2010 that is after the arguments were concluded on 22.09.2010 and the matter was posted for judgment on 04.10.2010. We have already mentioned that Section 16(c) of the Specific Relief Act contemplates that specific averments have to be made in the plaint that he has performed and has always been willing to perform the essential terms of the Act which have to be performed by him. This is an essential ingredient of Section 16(c) and the form prescribes for the due performance. The proviso inserted in Rule 17 clearly states that no amendment shall be allowed after the trial has commenced except when 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.
18) The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court's ::: Downloaded on - 15/04/2017 20:09:21 :::HCHP 7 discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties.
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However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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."
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19) Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term `Due diligence' is specifically rt used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.
20) A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit."
8. Consequently, the petition is allowed. Order dated 10.8.2015 is set aside. In the interest of justice, the parties through their counsel, are directed to appear before the learned trial Court on 12.5.2016. The learned trial Court is directed to decide the suit within a period of three months. No costs.
April 21, 2016, ( Rajiv Sharma ),
(karan) Judge.
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