Uttarakhand High Court
Bharat Hotels Ltd vs Satish Kumar & Ors on 13 March, 2019
Equivalent citations: AIRONLINE 2019 UTR 417
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 190 of 2019
Bharat Hotels Ltd. ..........Petitioner
versus
Satish Kumar & Ors. .......respondents
Mr. Pratiroop Pandey, Advocate for the petitioner
Mr. Piyush Garg, Advocate for the respondent
Chronological list of cases cited:
(2018) 2 SCC 87
(2018) 11 SCC 208
(2018) 12 SCC 584
JUDGMENT
Hon'ble Lok Pal Singh, J. (Oral) \ By means of present writ petition, petitioner seeks to quash the impugned order dated 05.01.2019 passed by 2nd Additional District Judge, Rishikesh, Dehradun in Original Suit No.5 of 2013 "Satish vs. Chaman & Others", whereby said court has rejected the application moved by the petitioner/defendant under Order VI Rule 17 of The Code of Civil Procedure, 1908 (for short, CPC).
2. Factual matrix of the case are that the plaintiff (respondent no.1 herein) instituted a suit for declaration and cancellation of sale deeds dated 29.02.2008, 23.12.2008 and 18.12.2008 executed between the defendants, on the ground, that the property was sold in favour of the plaintiff/respondent no.1 prior to execution of these sale deeds. Petitioner/defendant no.5 and defendant nos.2 to 4 contested the suit and filed written statement on 15.03.2013. On the basis of pleadings of parties, issues were framed. Thereafter, the parties led their evidence. The matter was then fixed by the trial court for arguments. In the meantime, petitioner/defendant no.5 moved an amendment application under Order VI Rule 17 read with Section 151 of CPC stating that the respondent no.1/plaintiff is claiming his rights over the property in dispute on the basis of sale deed executed by Late Munna and Chaman, and that legal heirs of Late Munna has not been arrayed as party to the present suit who are proper and necessary party to elucidate controversy and for just decision of the present case. Petitioner/defendant no.5, thus, prayed that following para may be added after para- 38 of written statement of defendant no.5 :-
"Suit is bad for non-joinder of necessary party, legal heirs of Late Munna and thus is liable to be rejected on this ground alone". Similarly revenue authority and its officials are also proper and necessary party to the present lis and for just decision of the case and suit is bad for non-joinder of proper and necessary party. Revenue authority and its official and liable to be rejected on this ground also".
Petitioner further prayed to add following after para 39 of Written Statement :-
"40. That Sale Deed which has been executed by Chamn and Munna in favour of plaintiff does not bind defendant no.5 and its predecessors as same is void ab initio and non-est thus while this Hon'ble court decides the lis finally among the parties so also pass appropriate order/directions to the concerned authorities and do not further take cognizance of Sale Deed of plaintiff being void- abinitio, being non-est so that plaintiffs may not take advantage of such void Sale Deed to cheat and harass any other persons as he did in the present case against the defendant No.5 who is lawful owner and possession of suit land.'
3. Learned Trial Court, after considering the proviso appended to Order VI Rule 17 of CPC and the case-laws cited by the petitioner/defendant no.5 as well as on perusal of record, arrived to the conclusion that evidence has been concluded and the applicant has failed to show any reason for not filing amendment application earlier and that the amendment sought is not necessary for disposal of the case and it appears to have been filed just to delay the proceedings. The Trial Court, thus, rejected the application.
4. Learned counsel for the petitioner would submit that the amendment which was sought by the petitioner/defendant no.5 was neither intended to introduce a new fact or defence nor it does change the character of the suit nor it was a vexatious application so as to delay the trial. He would further submit that the amendment sought was necessary for just decision of the suit.
5. Per contra, learned counsel appearing for the respondent submitted that the trial court has rightly rejected the application for amendment which was filed at belated stage. According to him, the trial was already commenced and the application was filed at the stage when the matter is fixed for hearing just to delay the trial. Learned counsel further submitted that if the application for amendment is allowed, it will change the nature of suit and also prejudice the interest of the plaintiff/respondent no.1.
6. I have heard learned counsel for the parties and perused the entire material available on file.
7. Order VI Rule 17 of C.P.C. would be necessary for the purpose, which is extracted hereunder:-
"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."
8. A plain language of Order VI Rule 17 of CPC would reveal that although said Rule permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been imposed by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced, however, it has been left upon the Court to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial.
9. It is settled position in law that issue of non- joinder of parties should be raised at the earliest possible. In the case at hand, the trial has commenced and it is now at the stage of hearing and, at this stage, amendment application has been filed by the petitioner. The trial court has recorded a finding in the impugned order that the amendment sought is not necessary for disposal of the case. I am of the considered view that the application has been filed at a belated stage. Further, the trial court has properly appreciated the provisions of Order VI Rule 17 proviso of the Code of Civil Procedure. The trial court has taken a possible view and after appreciating the contentions raised by the respective parties, has rightly rejected the application.
10. Apart from above, this Court also finds that the petitioner/defendant no.5, by way of amendment application, has also prayed that concerned authorities be directed not to take cognizance of sale deed of plaintiff being void ab initio and non est, however, no counter claim has been sought by the petitioner/defendant in this regard. The amendment sought in regard to para 40 of the written statement does not serve any purpose as not counter claim has been raised by the defendant/petitioner seeking cancellation and declaration of the sale deed executed in favour of plaintiff as null and void and the pleadings in this regard, sought to be amended, would be futile.
11. I have also gone through the case-laws mentioned in the impugned order. As has been rightly observed by the trial court, the ratio of said judgments is not applicable to the facts and circumstances of the present case.
12. In exercise of jurisdiction under Article 227 of Constitution of India, the High Court cannot act as an appellate court. Their Lordships of Hon'ble Apex Court in the case of Raj Kumar Bhatia vs. Subhash Chander Bhatia1 has held as under:
"12. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company3, this Court has held that the (2003) 3 SCC 524 supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21-9-2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff.
13. In the view which we have taken, it has not become necessary to consider the alternative submission of the appellant namely, that recourse taken to the jurisdiction under Article 227 by the respondent after filing an application for review before the Trial Court was misconceived. Since the matter has been argued on merits, we have dealt with the rival submissions.
13 Hence, on a conspectus of the facts and having due regard to the nature of the jurisdiction under Article 227 which the High Court purported to exercise, we have come to the conclusion that the impugned judgment and order is unsustainable. We accordingly allow the appeal and set aside the judgment of the High Court. The order passed by the Trial Court allowing the amendment of the written statement is accordingly affirmed."
13. Their Lordships of Hon'ble Supreme Court in the case of Dr. Kaximunnia (Dead) by Legal Representative vs. Zakia Sultana (Dead) by Legal Representative2 has observed as under:-
"35. Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court.
36. The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition."
14. Their Lordships of Hon'ble Supreme Court in the case of Anil Kumar Singh vs. Vijay Pal Singh3 and others has held as under:
"28. As mentioned above, the High Court should have seen that the scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the Code and to decide this question, the High Court should have confined its inquiry to examine as to whether the requirements of Order XXIII Rule 1 were complied with or not but not beyond it.
29. There was, therefore, no justification on the part of the High Court to have travelled in the issues relating to the grant of injunction in relation to the suit land and give direction to the appellant (plaintiff) to place respondent No. 1 in possession of the suit land.
30. The High Court should have seen that the issue of grant of injunction was not the subject matter of the writ petition and, therefore, it had nothing to do with the question of withdrawal of the suit and secondly, the withdrawal of a suit was governed by Order XXIII Rule 1 of the Code whereas the injunction was governed by Order XXXIX Rules 1 and 2 of the Code. Both operate in different spheres. That apart, the defendant did not challenge the ex- parte grant of injunction order in appeal under Order XLIII Rule 1(r) and nor contested it before the Trial Court. It was only in these two forums, the issue of injunction could be considered by the Courts but not in present proceedings which, as mentioned above, were confined only to the question of withdrawal of suit and nothing else."
15. In view of the above, I do not find any illegality or jurisdictional error committed by the trial court, which may warrant interference of this Court under Article 227 of Constitution of India.
16. Writ petition fails and is hereby dismissed. No order as to costs.
(Lok Pal Singh, J.) March 13, 2019 Rajni