Allahabad High Court
Dharmendra Kumar Sharma vs Somendra Babu And 13 Others on 18 January, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 7 AFR Case :- MATTERS UNDER ARTICLE 227 No. - 261 of 2018 Petitioner :- Dharmendra Kumar Sharma Respondent :- Somendra Babu And 13 Others Counsel for Petitioner :- Pankaj Misra Counsel for Respondent :- Swapnil Kumar Hon'ble Surya Prakash Kesarwani,J.
1- Heard Sri Pankaj Misra, learned counsel for the defendant-revisionist/ petitioner and Sri Swapnil Kumar, learned counsel for the plaintiff-respondents.
2- This petition under Article 227 of the Constitution of India has been filed praying to set aside the order dated 21.12.2017 in S.C.C. Revision No.1 of 2017 (Dharmendra Kumar Sharma v. Somendra Babu and others) passed by the Additional District & Sessions Judge/FTC Court No.2, Kasganj, whereby the amendment application of the defendant-revisionist/petitioner to amend his written statement by adding few lines in paragraph-7 of the written statement has been rejected.
3- Aggrieved with the impugned order dated 21.12.2017 rejecting the aforesaid amendment application, the defendant-revisionist/petitioner has filed the present petition.
Facts-
4- Briefly stated facts of the present case are that shop No. 636, Ward No.1, Nadrai Gate, district Kasganj, was owned by one Sri Jagmohan Lal, son of Sri Kedari Lal. During his life time he admitted that one Sri Ram Swaroop Sharma, son of Sri Jhandu Lal was a tenant in the aforesaid shop. Sri Ram Swaroop Sharma died issue-less in September 1983. He had only one real sister namely, Smt. Triveni Devi. The aforesaid owner Sri Jagmohan Lal executed a will dated 21.10.1982 in favour of the plaintiff-respondent nos. 1 and 2. He died on 20.10.1982. Thus, the plaintiff-respondent became the owner and landlord of the disputed shop. They filed S.C.C. Suit No.34 of 1986 (Somendra Babu and Upendra Kumar, Smt. Triveni Devi and Dharmendra Kumar ), praying for ejectment of the tenant/ defendant no.1 on the ground of subletting to the defendant no.2/petitioner herein. During pendency of the aforesaid S.C.C. Suit, the plaintiff-respondent no.1 Sri Somendra Babu died, who was succeeded by heirs and legal representatives being plaintiff-respondent nos. 1/1 to 1/6. The defendant no.1 Smt.Triveni Devi also died during pendency of the aforesaid S.C.C. Suit. She was succeeded by her heirs and legal representatives i.e. defendant no.1/1 to 1/5.
5- A written statement was filed by the defendant no.2/petitioner herein on 29.10.1987 in which he took the stand that he succeeded his tenancy after the death of the original tenant Sri Ram Swaroop Sharma on account of his will. He also took the stand that during the life time of Sri Ram Swaroop Sharma, who was looking after the business and was also a co-tenant. When the aforesaid S.C.C suit was at the final stage of disposal, the defendant no.2/petitioner herein filed an alleged paper no. (211C) dated 5.2.1975. By this evidence the defendant-no.2/petitioner herein attempted to establish that the original tenant late Sri Jagmohan Lal had admitted him as co-tenant along with the original tenant late Sri Ram Swaroop Sharma.
6- The aforesaid suit was decreed by a judgment dated 31.3.2016 passed by the Judge Small Cause Court /Civil Judge (Senior Division), Kasganj.
7- On the issue of tenancy or subletting to the defendant no.2/petitioner, the Judge Small Cause Court recorded a finding that the shop in question was sublet. He disbelieved the evidence/permission deed dated 5.2.1975 (paper No.211C). He also observed that even there was no pleading in the written statement which may support the evidence 211C rather the pleading made by the defendant no.2/petitioner was by way of will the original tenant Ram Swaroop Sharma succeeded the tenancy and that rent was being paid by him since the life time of late Ram Swaroop Sharma, which were being recorded in the books of accounts and was engaged by Sri Jagmohan Lal as the original landlord. However, no evidence including the alleged books of accounts were filed by the defendant no.2/petitioner herein.
8- During pendency of the aforesaid S.C.C. Suit, the defendant no.2/petitioner had filed a petition being matters under Article 227 No.1267 of 2016 (Dharmendra Kumar Sharma v. Somendra Babu and 6 others) to challenge the order dated 21.12.2015, whereby his application for recall of the evidence as witness, was rejected.This petition was dismissed by order dated 16.3.2016 observing as under :
"It is wholly undisputed that the order dated 21.12.2015 is an interlocutory order against which the petitioner-respondent filed the aforesaid S.C.C. Revision No. Nil of 2016 which has been dismissed by the impugned order dated 16.1.2016 on the ground of maintainability. It is also undisputed that the petitioner-respondent has filed in evidence the alleged paper dated 5.2.1975 after about 29 years of the institution of the case. The statement of D.W.-1 has already been recorded. He has also been cross examined. By order dated 21.12.2015 the court of Civil Judge (Senior Division), Kasganj permitted the petitioner-respondent to lead other evidences. Learned counsel for the petitioner has not disputed the facts that the petitioner-respondent has thereafter produced two witnesses namely D.W.-3 and D.W.-4 to prove the paper dated 5.2.1975. Thus, looking into the entirity of the facts and also the fact that adjudication of S.C.C. Case No. 34 of 1986 is pending since last 30 years and its conclusion is being delayed by the petitioner-respondent/tenant, I do not find any infirmity in the impugned order.
In view of the aforesaid, writ petition is dismissed".
9- Aggrieved with the judgment dated 31.3.2016, passed by the Judge Small Cause Court, the defendant no.2/petitioner filed S.C.C. Revision No.1 of 2017 (Dharmendra Kumar Sharma v. Somendra Babu and others). In this revision he filed an amendment application dated 20.12.2017 (Paper No.28A-1) for adding certain lines in paragraph no.7,which was rejected by the impugned order dated 21.12.2017. The amendment sought by application dated 20.12.2017 (Paper no. 28A) is reproduced below:
**Lo0 txeksguyky ekfyd nwdku us fnukad 5&2&1975 dks fyf[kr rgjhj btktrukek le{klk{khx.k Hkh izfroknh mRrjnkrk dks nh Fkh ftlds tfj;s Lo0 txeksguyky us izkFkhZ@izfroknh dks fdjk,nkj Lo0 jkeLo:i 'kekZ ds lkFk lkFk cuk;k Fkk o mlh ds ckn ls Lo0 txeksguyky us izfroknh mRrjnkrk dks fdjk,nkj ekurs gq, fdjk;k nqdku dh cjkcj izkIr fd;kA rnuqlkj izfroknh Hkh Lo0 jkeLo:i 'kekZ ds lkFk lkFk oknxzLr nwdku dk fdjk;snkj gks x;k o pyk vk;kA dFku oknh fd izfroknh dks Lo0 jkeLo:i 'kekZ us f'kdeh fdjk;snkj cuk fn;k furkUr vlR; gSA** Submissions-
10- Learned counsel for the defendant-revisionist/petitioner submits as under :
(i) The evidence being Paper No.211-C is a permission deed, whereby the original landlord late Sri Jagmohan Lal has admitted the defendant-revisionist/petitioner as co-tenant. This paper was filed in evidence which was admitted. However, pleadings in the written statement could not be made inadvertently and as such the amendment application was filed before the revisional court. The amendment application was liable to be allowed, but it has been rejected arbitrarily and illegally by the revisional court.
(ii) Order VI Rule 17 C.P.C. Provides for amendment in the pleadings. It is settled law that an amendment application cannot be rejected on the ground of delay or late amendment, unless it is shown that the amendment shall cause injustice to the other side.
(iii) The amendment was necessary for proper determination of the controversy and, therefore, the revisional court has committed grave error of law in rejecting the amendment application.
11- Sri Swapnil Kumar, learned counsel for the plaintiff-respondent/landlord submits as under :
(i) The alleged permission-deed dated 5.2.1975 being paper No.211C was filed in evidence on 19.11.2015 after about 29 years of the institution of the suit, which could not be proved.
(ii) There was no pleading in the written statement which may support the alleged paper No.211C.
(iii) The amendment being sought by the defendant-revisionist/petitioner is in conflict with the stand taken by him in his written statement.
(iv) The sole purpose of filing the amendment application is to fil up lacuna and to improve upon his case so as to dispute the findings of fact recorded by the trial court.
(v) The amendment application has been lawfully rejected more so in view of the order dated 16.3.2016 passed by this Court in matters under Article 227 No.1267 of 2016.
Discussion and Findings-
12- I have carefully considered the submissions of the leaned counsels for the parties and perused the record of the petition before me.
13- In the written statement the defendant no.2/petitioner herein has not taken the stand that he was admitted as co-tenant by the original owner and landlord Sri Jagmohan Lal by the alleged deed dated 5.2.1975. This alleged deed being paper no.211C was filed in evidence after about 29 years of the institution of the suit, which was disbelieved by the Judge Small Cause Court after recording detail findings of fact based on consideration of relevant evidences on record. He gave cogent reasons to disbelieve this evidence. He also observed that there is no pleading in the written statement rather the pleadings are in conflict with Paper no.211-C. The S.C.C. Revision No.1 of 2017 filed to challenge the judgment and decree dated 31.3.2016 is pending in the court of Additional District Judge/Fast Track Court No.2, Kasganj. The amendment application No.228A-1 has been filed by the defendant no.2/petitioner in the aforesaid revision to amend written statement after more than 31 years of the institution of the S.C.C. Case and after about 30 years of filing of the written statement. Apparently, the amendment has been sought to fill up the lacuna and to dispute or to make a ground to agitate the findings of fact recorded by the Judge Small Cause Court in the judgment and decree dated 31.3.2016. Such a course adopted by the defendant no.2/petitioner to invoke the provisions of Order VI Rule 17 C.P.C. is impermissible, inasmuch as the amendment sought is not only malafide and after thought but it is also intended to change the nature of the case which shall cause grave injustice to the plaintiff-respondent. Under the circumstances, rejection of amendment application by the revisional court by impugned order is justified.
14- The general principle of amendment under Order 6 Rule 17 C.P.C. Is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and proper and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. Thus, an amendment of pleadings in plaint cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim. The Court always gives relief to amend the pleadings of the party, unless it is satisfied that the party applying for amendment was acting malafidely or that by his blunder he had caused injury to his opponent which cannot be compensated by an order of cost.
15- In the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, (2009) 10 SCC 84 (Paragraph Nos. 35 to 64), Hon'ble Supreme Court referred to the law laid down by it in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363, Purushottam Umedbhai & Co.v. Manilal & Sons, AIR 1961 325, Ganesh Trading Co. v. Moji Ram, (1978)2 SCC 91, Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala,AIR 1964 SC 11, Jai Jai Ram Manohar Lal v. Natioinal Building Matrial Supply, (1969) 1 SCC 869, Ganga Bai v. Vijay Kumar (1974) 2 SCC 393, Haridas Aildas Thadani v. Godrej Rustom Kermani (1984) 1 SCC 668, B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 and in the case of Suraj Prakash Bhasin v. Raj Rani Bhasin, (1981) 3 SCC 652 and after emphasizing on the conditions of grant of amendment namely, whether the amendment is necessary to decide real controversy, no prejudice or injustice is caused to the other party and compensation in terms of cost; concluded as under :
Whether amendment is necessary to decide real controversy "58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.
No prejudice or injustice to other party
59. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to 22 (1981) 3 SCC 652 other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.
60. In Ganga Bai case this Court has rightly observed (SCC p. 399, para 22) "22...The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."
(emphasis supplied ) COSTS
61. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive.
(i) At what stage the amendment was sought.
(ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage.
(iii)The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic.
(v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs.
(vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs.
All these aspects must be carefully taken into consideration while awarding the costs.
62. The purpose of imposing costs is to:
a) discourage mala fide amendments designed to delay the legal proceedings;
b) Compensate the other party for the delay and the inconvenience caused;
c) Compensate the other party for avoidable expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
d) to send a clear message that the parties have to be careful while drafting the original pleadings.
Factors to be taken into consideration while dealing with applications for amendments
63. On critically analyzing 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 VI Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments".
16- In the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, AIR (2007)5 SCC 602, Hon'ble Supreme Court considered the principles for amendment in plaint and written statement and held as under :
"It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable".
17- In the case of Mahila Ramkali Devi and others v. Nandram and others, AIR 2015 SC 2270, Hon'ble Supreme Court held as under :
"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".
(Emphasis supplied by me) 18- In the case of Mahila Ramkali Devi and others (supra), Hon'ble Supreme Court clearly held that 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.
19- In the case of Ganga Bai v. Vijay Kumar (supra), Hon'ble Supreme Court while, rejecting an amendment application filed after more than seven years to challenge a preliminary decree; mandated that undisputedly power to allow an amendment is wide and may at any stage be appropriately exercised in the interest of justice notwithstanding the law of limitation, but the exercise of such far-reaching discretionary power is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.
20- In the case of Smt. Maya Devi (supra) this Court considered the provisions of Order VI Rule 17 C.P.C. and held as under :
"8.In order to find out whether the application of the defendant under Order VI Rule 17 for amendment of written statement was bonafide and sustainable at the appellate stage of the second original suit stage or not, it is useful to refer to the relevant provisions of Order 6 Rule 17 C.P.C. as under:
"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."
9. This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.
10. The proviso to Order VI Rule 17 C.P.C. specifically provides that no application for amendment shall be allowed after the trial is commenced unless the court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial.
21- In the case of Chander Kanta Bansal Vs. Rajinder Singh Anand1 Hon'ble Supreme Court considered the meaning of the word "due diligence" used in the proviso to Order VI Rule 17 C.P.C. and held as under:
"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 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.
17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so- called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness.
18. As rightly referred to by the High Court in Union of India Vs. Pramod Gupta 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."
(Emphasis supplied by me) 22- In the case of J. Samuel & others Vs. Gattu Mhesh & others, Hon'ble Supreme Court explained the scope of the words "due diligence" used in proviso to Order VI Rule 17 and held as under:
"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 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.
21. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verifiedthe plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.
(Emphasis supplied by me) 23- Applying on the facts of the present case, the principles of law laid down in the afore-noted judgments, I find that the amendment sought by the defendant-petitioner after about 30 years of filing of the written statement was not bonafide, but it was malafide attempt with an intent to delay disposal of the case. Under the circumstances, the rejection of the amendment application is wholly justified.
24- In view of the above discussions, I do not find any merit in this petition. Consequently, the writ petition fails and is hereby dismissed. However, it is directed that the revisional court shall decide the revision in accordance with law, expeditiously, preferably within four months from the date of presentation of a certified copy of this order without granting any unnecessary adjournment to either of the parties.
Order Date :- 18.1.2018 Ak