Jharkhand High Court
Ranjit Madhesia & Ors vs Kameshwar Prasad Sharma & Ors on 12 February, 2013
Author: P.P. Bhatt
Bench: P.P. Bhatt
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4889 of 2010
Ranjit Madhesia & others ....Petitioners
Versus
Kameshwar Prasad Sharma & others ... Respondents
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Coram: THE HON'BLE MR JUSTICE P.P. BHATT
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For the Petitioners : Mr. M.K. Dey, Sr. Advocate
M/s. A.K. Dey, Milan Kumar, Advocates
For the Respondents : M/s. Ayush Aditya, D. Sen, S. Shekhar &
P. Dayal, Advocates
/12.2.2013: Petitioners, by way of filing the present writ petition, under Article 227 of the Constitution of India, have prayed for issuance of an appropriate writ/ order/ direction for quashing and setting aside the order dated 10.8.2010 passed by the learned Additional District & Sessions Judge, FTC-VI, Dhanbad in Title Appeal No. 188 of 2004, whereby petitions filed on behalf of the plaintiffs/ respondents have been allowed with cost of Rs.2,000/-. The prayer to grant leave to accept additional documents filed as per separate list was also allowed on cost of Rs.500/- and the petitioners/ defendants have been provided an opportunity to apply for relevant counter amendment of their pleading and to file additional relevant documents, if they so advised.
2. Heard the learned counsel for the petitioners as well as learned counsel for the respondents and perused the impugned order as well as the material placed on record.
3. On perusal of the same, it transpires that court-below allowed the amendment application moved by the respondents/ original plaintiffs in Title Appeal No. 188 of 2004. On perusal of the findings recorded by the court-below, it appears that the court-below has considered the relevant aspect, which are required to be considered. Court-below has also taken note of the various judgments cited before it.
4. Argument advanced by the learned senior counsel for the petitioners/ defendants is that the amendment application was filed at a belated stage and the entire foundation/ basis of filing of the suit is likely to be changed and it is likely to cause harm or prejudice to the petitioners- defendants..
5. Learned counsel for the respondents, while referring amendment application, pointed out various amendments sought for in appeal.
6. On perusal of the same, it appears that court-below has passed the order after careful consideration of the fact and observed that the nature of suit is not likely to be changed, if the amendment is ordered to be allowed. Moreover, court-below has also taken note that it will not cause any injustice or prejudice to petitioners/ defendants, except some delay which can adequately be compensated in terms of money.
7. Learned counsel for the petitioner has referred to and relied upon the judgment, reported in AIR 1977 SC 680. In support of his argument, learned counsel for the petitioner submitted that this was a case wherein amendment was sought for in a written statement and the Hon'ble Apex Court having regard to the facts and circumstances rejected the application filed before it.
8. Learned counsel for the respondents/ original plaintiffs has also referred to and relied upon the following judgments:
(i) AIR 1978 DELHI 233;
(ii) (2001) 2 SCC 472;
(iii) (2009) 10 SCC 626.
9. I have perused the aforesaid judgments cited by the learned counsel for the respondents/ original plaintiffs. The relevant abstruct of the above referred decisions are reproduced as under:
Hon'ble Apex Court in the case of Ragu Thilak D. John versus S. Rayappan and others, reported in (2001) 2 SCC 472, in para-6 observed:
"6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the pliant which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject- matter of the issue after allowing the amendment prayed for."
Hon'ble Apex Court in Surender Kumar Sharma versus Makhan Singh, reported in (2009) 10 SCC 626 in para- 5 to 8 observed as under:
"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 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 amendment.
6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise. (See B.K. Narayana Pillai v. Parameswaran Pillai1.) Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed.
8. For the reasons aforesaid, the orders of the High Court as well as of the trial court are set aside. The application for amendment of the plaint filed by the appellant stands allowed, subject to the payment of costs of Rs 10,000 to the opposite party, which shall be deposited/paid within a period of six weeks from the date of supply of a copy of this order. In default of deposit/payment of such costs, the application for amendment of the plaint shall stand rejected."
10. In view of ratio laid down by the Hon'ble Apex Court the amendment can be allowed at belated stage to minimise the litigation and also for the purpose of deciding real controversy between the parties as also for doing full and complete justice. Moreover, the merit of the amendment sought for is not requried to be looked into while allowing the application for amendment.
11. Having regard to the facts and circumstances of the present case, it appears that the court-below has rightly and properly allowed the amendment by awarding cost to the otherside. The court-below has also given an opportunity to file additonal written statement so as to safeguard the interest of otherside, therefore, now there is no question of causing any prejudice to the otherside as contended.
12. In view of the aforesaid judgments and in the light of the facts and circumstances of the present case, it appears that the court-below has not committed any error while allowing the application for amendment. Order passed by the court-below is in accordance with law and therefore, intervention of this court is not required in the said order.
13. Accordingly, this writ petition is dismissed.
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(P.P. Bhatt, J.) S.B.