Andhra HC (Pre-Telangana)
G.S.Prakash vs Polasa Hanumanlu on 18 July, 2014
Author: C.V. Nagarjuna Reddy
Bench: C.V. Nagarjuna Reddy
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
Civil Revision Petition No.2900 of 2013
18-07-2014
G.S.Prakash.. Petitioner
Polasa Hanumanlu.. Respondent
Counsel for the petitioner : Mrs. P. Bhavana Rao
for Sri D. Krishna Murthy
Counsel for the respondent: Sri C.V. Bhaskar Reddy
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. (1878) 10 Ch.D.393
2. (1886) 16 QB 178
3. AIR 1922 P.C. 249
4. ILR 1900 Bom. 644
5. AIR 1957 S.C. 363
6. (2002) 7 SCC 559 = AIR 2002 SC 3269
7. (2006) 4 SCC 385
8. (1976) 4 SCC 320
9. AIR 1957 SC 357
10. (1920) 47 IA 255
11. (2008) 14 SCC 632
12. (2008) 3 SCC 717
13. (2008) (8) SCC 511
14. (2009) 10 SCC 626
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
Civil Revision Petition No.2900 of 2013
Dated : 18th July, 2014
The Court made the following :
ORDER:
This Civil Revision Petition arises out of order, dated 05.03.2013, in I.A.No.2843 of 2007 in O.S.No.93 of 2007 on the file of the learned III Additional District Judge (FTC), Ranga Reddy District at L.B. Nagar, Hyderabad.
The petitioner filed the above mentioned suit for specific performance of agreement of sale. He has pleaded that on 10.8.2006, the respondent has executed an agreement of sale in his favour in respect of the suit schedule property. The petitioner filed I.A.No.2843 of 2007 under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short the CPC) for amendment of the plaint by adding paragraphs 2(a) & 2(b) to the plaint. The Court below rejected the said application. Feeling aggrieved by the said order, the petitioner filed this Civil Revision Petition.
Before dealing with the merits of the case, it is appropriate to mention that a large chunk of cases filed in this Court arises out of disputes pertaining to amendment of pleadings. A perusal of several orders of the lower Courts convinces me to conclude that in majority cases, they have been failing to comprehend the true purport of the provisions of Order VI Rule 17 CPC with reference to the settled legal position holding the field. An effort is therefore made in this Judgment to concisely explain the law on the subject.
Rule 17 of Order VI CPC, which is relevant for disposal of this case, reads as under :
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.
A little peep into the legislative history relating to amendment of pleadings would reveal that Rule 17 as it originally stood was without the proviso. The Code of Civil Procedure (Amendment) Act 1976 did not affect the said rule. However, by the Code of Civil Procedure (Amendment) Act, 1999, this Rule was deleted. Though the said Amendment Act received the assent of the President on 30-12-1999, it had never been brought into force. The Code of Civil Procedure (Amendment) Act, 2002, reintroduced Rule 17 by adding the proviso to it.
A careful reading of the above reproduced statutory provision would show that it per se does not impose any restrictions on the Court in permitting the amendments except to the extent that the Court needs to be satisfied that such amendments are necessary for the purpose of determining the real questions in controversy between the parties; and that in cases where the trial has commenced, the Court also must be satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, by way of judicial precedents, the Courts have laid down various parameters for exercising the power by the Courts under this provision.
Traditionally, Courts have been making a liberal approach in allowing amendments to the pleadings. About 135 years ago, in Tildersley Vs. Harper Bramwell L.J. made the following observations :
I have had much to do in chambers with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise.
A few years later, Pollock.,J, in Steward Vs. North Metropolitan Tramways Co. , quoted with approval the observations of Bramwell L.J. in Tildersley (1-supra) and stated :
The test as to whether the amendment should be allowed is, whether or not the defendants can amend without placing the plaintiff in such a position that he cannot be recouped, as it were, by any allowance of costs, or otherwise. Here the action would be wholly displaced by the proposed amendment and I think it ought not to be allowed.
In Ma Shwe Mya Vs. Maung Mo Hnaung the Privy Council observed :
All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject matter of the suit. (Emphasis is mine) Batchelor.,J in his separate opinion from that of Beaman.,J in Kisandas Rupchand Vs. Rachappa Vithoba laid down the following principles : 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 . But I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that 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. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same : can the amendment be allowed without prejudice to the other side, or can it not? (Emphasis is mine) The Apex Court, in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and others quoted with approval Batchelor.,J by observing :
We think that the correct principles were enunciated by Batchelor.,J in his Judgment in Kisandas Rupchand Vs. Rachappa Vithoba (ILR 1900 Bom. 644).
The Supreme Court took note of the fact that in Kisandas Rupchand (4-supra) the claim for dissolution of partnership and accounts by alleging that the plaintiffs in pursuance of the said partnership agreement have delivered Rs.4001/- worth of cloth to the defendant, was rejected by the trial Court on the ground that no partnership was created though a finding was rendered that the cloth was delivered. The plaintiffs abandoned the plea of partnership at the appellate stage and prayed for leave of the court to amend by adding a prayer for recovery of Rs.4001/-. By the date of amendment, the claim for recovery of money was barred by limitation, but the amendment was allowed by the appellate Court. Endorsing the principles laid down in Kisandas Rupchand (4-supra), the Supreme Court upheld the amendment allowed by the Bombay High Court by emphasizing the fact that the amendment really did not introduce a new case. The Supreme Court, pursuing the same liberal approach, as was being made by the English courts and the Privy Council held that the amendments must be allowed if they do not cause injustice to the other side if such amendment is necessary for deciding the real questions in controversy; and that the amendment shall be refused only where if such amendment is allowed, the other side will not be in the same position if the original pleadings are allowed to remain and such amendment would cause injury to him which could not be compensated in costs.
In Sampath Kumar Vs. Ayyakannu and another the Apex Court demarcated a line between the pre-trial and post-trial amendments and held that in the former cases, the Courts must be more liberal in allowing amendment of pleadings as the opposite party will have more opportunities to rebut the amended pleadings than in the latter cases. While holding that the delay in filing the application for amendment by itself does not constitute the sole ground for its rejection, it has held that the delay shall not be reckoned from the date of filing the suit but it should be calculated by taking into account the stage to which the hearing in the suit has proceeded. In Rajesh Kumar Agarwal Vs. K.K. Modi , the Supreme Court held that the underlying object of Rule 17 of Order VI CPC is that the Court 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 questions in controversy between the parties provided it does not cause injustice or prejudice to the other side. The Apex Court, on the analysis of the provision, held that it consists of two parts; that the first part is discretionary and the second part is imperative and enjoins the Court to allow all the amendments which are necessary for the purpose of determining the real questions in controversy between the parties.
In M/s. Modi Spinning & Weaving Mills Co. Ltd. and another Vs. M/s. Ladha Ram & Co. the Supreme Court while holding that inconsistent pleas can be made in the pleadings, however, held that while allowing such pleadings, a party shall not be allowed to displace the pleadings constituting admissions made by the defendants in the written statement. It has held that if such amendment is permitted, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. In L.J. Leach and Co. Vs. Jardine Skinner & Co. the Supreme Court held that the Courts would as a rule decline to allow amendments if a fresh suit on the amended claim is barred by limitation on the date of the application; that, but that is a factor to be taken into account in exercise of the discretion as to whether amendment to be ordered and does not affect the power of the Court to order it in the interests of justice. The Court, in that context relied on the Judgments of the Privy Council in Charan Das Vs. Amir Khan and Kisandas Rupchand (4-supra).
In South Konkan Distilleries v. Prabhakar Gajanan Naik , Supreme Court at para-11 of its Judgment held :
Before we deal with the orders of the courts below, as to whether the application for amendment of the written statement and the counterclaim was rightly rejected or not, let us consider the laws on the question of allowing or rejecting a prayer for amendment of the pleadings when the plea of limitation was taken up by one of the parties in the suit. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really subserve the ultimate cause of justice and avoid further litigation. (Emphasis is mine) In Usha Devi Vs. Rijwan Ahmad and others the Supreme Court, while holding that Order 6 Rule 17 CPC confers wide powers and unfettered discretion on the Courts for allowing the amendments, also construed the words after the trial has commenced in the proviso to Rule 17 by limiting their amplitude only to the final hearing of the suit i.e., examination of witnesses, filing of documents and addressing of arguments.
In North Eastern Railway Administration Vs. Bhagwan Das , the Supreme Court while observing that Courts have very wide discretion to allow amendments reiterated the principles settled in Pirgonda Hongonda Patil (5-supra).
In Surender Kumar Sharma Vs. Makhan Singh the Supreme Court held that mere delay and laches cannot be a ground for rejecting the amendment if the Court is satisfied that by allowing the amendment, the real controversy can be resolved.
I do not not intend to burden this Judgment with myriad precedents on the subject. On a careful analysis of the judicial precedents referred to above, it needs to be held that as a general rule, the Courts have to adopt a liberal approach in considering the applications for amendment of pleadings, subject to certain exceptions. Without intending to be exhaustive, but only illustrative, broadly stated, instances on either side are stated hereunder :
Instances where amendments have to be allowed :
(a) All pre-trial stage (prior to examination of witnesses) amendments which do not alter the nature and character of the suit and substitute or introduce new cause of action;
(b) In cases of pending or post-trial amendments, the Court must allow the same subject to the applicant, in addition to satisfy the condition (a) supra, satisfying two other conditions, viz., (i) that the amendment is necessary for determining the real questions in controversy and (ii) that despite due diligence, the applicant could not move the application at an earlier stage;
(c) Where, the proposed amendment will not work injustice or cause prejudice to the other side;
(d) Where, by the proposed amendment the position of the other party will be altered, but the same can be compensated by costs;
(e) Even where the proposed amendment introduces inconsistency in pleadings, if by the proposed amendment, the party does not seek to resile from the admissions if any made in the original pleadings;
(f) Where the proposed amendment relates to a time barred claim and the Court is satisfied that allowing such amendment really subserves the cause of justice and avoids further litigation.
Instances where amendments have to be refused:
(i) Where by the proposed amendment the party seeks to alter the nature, character and constitution of the suit (mere inconsistent pleadings may not, in all cases, change the nature and character of the suit) or substitute cause of action or introduce a distinct cause of action;
(ii) where the valuable defence by way of admissions by a party has accrued to the opposite party and by the proposed amendment the party intends to resile from such admissions;
(iii) where the position of the other party will be altered by the proposed amendment and the injury caused to him by such alteration could not be compensated in costs.
(iv) Where the proposed amendment lacks bonafides and is far too belated and the party seeking the amendment was not diligent in approaching the court;
(v) Where a fresh suit, if instituted on the proposed amendments, will be barred by law;
Having noticed the law on the subject, let me consider the facts of the case.
A perusal of the order of the lower Court would show that it has rejected the petitioners request for amendment mainly on the ground that if the proposed amendment is permitted, valuable defence already vested in the respondent will be lost.
The proposed amendment reads as under :
2(a) It is further submitted that as a matter of fact the negotiations pertaining to the sale of suit schedule property commenced sometime in the month of July, 2006. After number of meetings the final conclusion with regard to the terms and conditions of sale of the suit schedule property were finalised in the 1st week of August, 2006. As 10th August 2006 being a Thursday and an auspicious day the plaintiff herein has purchased a stamp paper and got prepared the Agreement of Sale.
2(b) It is further submitted that in the above mentioned circumstances in the evening of 10/08/2006, the plaintiff went to the residence of the defendant along with the agreement of sale. At that juncture the defendant and his wife suggested some changes in the address part of the document, which was typed on the stamp paper. Apart from that the wife of the defendant filled up the blank column in page no.2 of the Agreement with a pencil. The defendant insisted to get the entire Agreement retyped. As it was too late in the evening the retyping of the agreement and its signing were postponed to 11/08/2006. Accordingly the plaintiff has purchased a fresh stamp paper on 11-8-2006 and got the agreement of sale retyped by incorporating the changes suggested by the defendant. Unfortunately, at that juncture inadvertently the date of agreement was mentioned as 10/08/2006 instead of 11/08/2006. Without noticing such unintentional error, the defendant and the plaintiff signed the agreement in the presence of witnesses on 11-8-2006. The said mistake is a common mistake but the defendant is trying to take undue advantage of the same.
From the reading of the proposed amendment, it is evident that the petitioner is seeking to explain the discrepancy between the date of purchase of stamp paper and that of the agreement i.e., while the stamp paper is shown to have been purchased on 11-8-2006, the date of agreement is shown as 10-8-2006. The petitioner has only tried to explain why the date of agreement is shown as 10-8-2006, which was allegedly signed on 11-8-2006. The proposed amendment is thus only explanatory in nature. It neither alters the basic structure of the suit nor takes away any admission purportedly made by the petitioner. Indeed, I am unable to understand as to how the purported right of defence in the respondent will be taken away by permitting such amendment.
Permission to amend pleadings does not mean that the Court has accepted the correctness of the contents of the pleadings. Ultimately, it is for the party which sought amendment of the pleadings to prove the same with reference to evidence. If what the petitioner proposed to plead is not correct, he will not be able to prove the proposed pleadings. Therefore, I am of the opinion that the question of any prejudice being caused to the respondent if the proposed amendment is allowed in the present case would not arise.
For the above mentioned reasons, the order of the lower Court which suffers from serious jurisdictional error is set-aside and I.A.No.2843 of2007 is allowed. However, the respondent is permitted to file additional written statement to the extent of the amended pleadings before witnesses are examined.
The Civil Revision Petition is accordingly allowed, subject to the liberty given to the respondent as above.
As a sequel to the disposal of the Civil Revision Petition, CRPMP No.3794 of 2013 shall stand disposed of as infructuous.
_____________________________ Justice C.V. Nagarjuna Reddy 18th July, 2014