Himachal Pradesh High Court
Neeraj Kumar & Anr vs Dasondhi Lal on 13 June, 2024
Neutral Citation No. ( 2024:HHC:3348 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 4 of 2021 Reserved on : 24.05.2024 .
Date of decision: 13.06.2024 Neeraj Kumar & Anr. ....Petitioners/Plaintiffs Versus Dasondhi Lal ....Respondent/Defendant Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes
For the Petitioners
r : Mr. Ashok K. Tyagi, Advocate.
For the Respondent : Mr. Sanjeev Kuthiala, Senior Advocate,
with Ms. Amita Chandel, Advocate.
Rakesh Kainthla, Judge
The petitioners (plaintiffs before learned Trial Court) have filed the present petition against the order dated 18.12.2020 passed by learned Senior Civil Judge, Nahan (learned Trial Court), vide which the application seeking amendment of the plaint was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present petition are that the plaintiffs have filed a civil suit before the learned Trial Court for seeking a declaration that sale deed No.241 dated 04.04.2007 registered in the office of Sub-Registrar, Nahan ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 2 and mutation No.250 dated 30.08.2016 are a result of fraud, undue influence, misrepresentation and without consideration and not binding on the rights, title and interest of the plaintiffs. A .
declaration that the plaintiffs are the owners in possession of the suit land and a consequential relief of permanent prohibitory injunction for restraining the defendant from interfering with the suit land or forcibly dispossessing the plaintiffs was also sought. It was asserted that Prem Singh, father of the plaintiffs, was the owner in possession of the suit land. He executed a Will in favour of the plaintiffs on 11.07.2006. He died on 15.09.2007. The defendant is a stranger and is interfering with the suit land without any right to do so. The defendant got a mutation of inheritance recorded in his favour in the absence of the plaintiffs.
The defendant, his son and other persons, visited the suit land on 15.09.2016 and disclosed that 5 bighas of land were sold on 04.04.2007, vide sale deed No.241 registered in the office of Sub-
Registrar, Nahan. A mutation No.250 dated 30.08.2016 was also attested. Hence, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by filing a written statement-
cum-counter claim. Subsequently, the plaintiffs filed an ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 3 application under Order 6 Rule 17 of CPC for amendment of the written statement to the counter-claim. It was asserted that the defendant claimed to be the purchaser of the specific property. He .
also sought the possession of the property in the counter-claim.
The plaintiff denied the claim of the defendant. When the plaintiff was preparing the case for cross-examination, a glaring fact came to his notice that an alternative plea in the written statement to the counter-claim regarding the preferential right of the plaintiffs to re-purchase the suit land was not taken, hence, the amendment was sought to amend the written statement to the counter-claim to plead the facts and seek a relief of preferential right to purchase the suit land.
4. The application was opposed by filing a reply taking preliminary objections regarding lack of cause of action, the application being an abuse of the process of the Court and the application being mala fide. The contents of the application were denied on merits; however, the filing of the suit and written statement-cum-counter-claim were not disputed. It was asserted that the defendant filed the written statement and the counter-
claim on 28.02.2018. The plaintiff filed an application for amendment on 18.07.2019 to amend the written statement to ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 4 incorporate the fact that the sale deed was without consideration.
This application was allowed as not opposed. Six witnesses including the respondnet were to be examined on 03.12.2020 when .
the present application was filed. The plea regarding the preferential right was quite uncertain and vague. The preferential right is available in case of intestate succession, whereas the plaintiff asserted that he has succeeded to the estate of his father by way of a Will, hence, it was prayed that the application be dismissed.
5. Learned Trial Court held that the plaintiffs challenged the sale deed No.241 registered on 04.04.2009 based on the Will.
An application for amendment was filed on 18.07.2019, which was allowed by the Court. The issues were settled on 05.01.2019 and when the case was listed for evidence, the application for amendment was filed. There is nothing on record to show that the plaintiffs could not have applied for the amendment before the commencement of the trial. Section 22 of the Hindu Succession Act deals with the right available to the Class-I heir of a Hindu dying intestate. In the present case, the father had alienated the property and the applicability of Section 22 was doubtful. Hence, the application was dismissed.
::: Downloaded on - 13/06/2024 20:31:45 :::CIS 56. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed asserting that the learned Trial Court erred in dismissing the application. Section 22 .
of the Hindu Succession Act provides a preferential right to acquire the property sold to a stranger. The plea was purely legal and could have been taken at any time. Learned counsel was at fault in not taking the plea and the client should not be penalized for the same.
The plaintiff was not withdrawing any admission but was merely putting forward an alternative claim. The power to grant amendment is liberal and the learned Trial Court erred in denying the right to amend the pleadings to the plaintiff; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
7. I have heard Mr Ashok Kumar Tyagi, learned counsel for the petitioners and Mr Sanjeev Kuthiala, learned Senior Counsel assisted by Ms Amita Chandel, learned counsel for the respondent/defendant.
8. Mr. Ashok Kumar Tyagi, learned counsel for the petitioners submitted that the petitioners/plaintiffs had engaged a counsel and they cannot be penalized for his fault. He relied upon the judgment of this Court in Rajeev Kumar Singhal Vs. Mukul Garh ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 6 and Others, 2019 (2), Shimla Law Cases, 632. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
.
9. Mr. Sanjeev Kuthiala, learned Senior Counsel for the respondent/defendnat submitted that as per the proviso to Order 6 Rule 17, a party cannot seek the amendment of the pleadings after the trial has commenced, unless it satisfies the Court that it could not have applied for amendment earlier despite the exercise of due diligence. He also relied upon the judgments of Hon'ble Supreme Court in Vijay Hathising Shah and another versus Gitaben Parshottamdas Mukhi and others, 2019 (5) SCC 360, M. Revanna versus Anjanamma (dead) by Legal Representatives and ors, 2019 (4) SCC 332 and the judgment of this Court in Rakesh Chand versus Rajinder Kumar, 2020 (1) Shimla Law Cases, 96. He further submitted that the learned Trial Court had rightly held that Section 22 of the Hindu Succession Act did not apply to the present case because the plaintiff had not got the property by way of intestate succession. The property was sold by the predecessor of the plaintiffs. The proposed amendment was barred by limitation and the suit could not have been filed based on the same on the date of filing the application. Learned Trial Court had rightly dismissed ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 7 the application. He relied upon the judgment of the Hon'ble Supreme Court in Ashutosh Chaturvedi versus Prano Devi and ors, AIR 2008 Supreme Court, 2171.
.
10. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
11. The present petition has been filed under Article 227 of the Constitution of India. It was laid down by the Hon'ble Supreme Court in Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181 :
(2022) 2 SCC (Civ) 424: 2022 SCC OnLine SC 29 that the power under Article 227 of Constitution of India is correctional to set right grave dereliction of duty, flagrant abuse or violation of the fundamental principle of law or justice. It was observed:
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, or reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 8 Mahabaleshwar Kholkar, (2010) 1 SCC 217: (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice.
The power under Article 227 is exercised sparingly in .
appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed:
(SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner.
The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal if there is no evidence ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 9 at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
12. It is undisputed that the Sale Deed was registered on .
04.04.2007. The plaintiff had filed a civil suit challenging the execution of the sale deed. Thus, the plaintiffs were aware of the fact that the sale deed had been executed. The application for amendment was filed on 03.12.2020 after the lapse of nearly 13 years. Article 97 of the Limitation Act, provides one year for filing the suit to claim a preferential right under Section 22 of the Hindu Succession Act; hence, the suit for claiming the preferential right would have been barred on the date of filing the application.
13. A similar situation arose in Ashutosh Chaturvedi v.
Prano Devi, (2008) 15 SCC 610, wherein an application for amendment claiming a preferential right of pre-emption under Section 22 of the Hindu Succession Act was filed after 13 years of filing the suit. The Hon'ble Supreme Court held that a civil suit claiming such right would be barred after 13 years and an amendment could not be sought after the lapse of 13 years. It was observed:
12. A right claiming preference over a property in terms of a statute ordinarily is a weak right.::: Downloaded on - 13/06/2024 20:31:45 :::CIS 10
13. The Limitation Act, 1963, by Article 97, provides for one year's limitation for claiming such a right. The suit was filed in the year 1990. The sale deeds, during the pendency of the suit, were executed on 8-6-1990 and 18-
.
6-1990. The application for amendment was filed 13 years after the filing of the suit. A suit claiming preferential rights was required to be filed ordinarily within the prescribed period of limitation.
16. In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] this Court upon taking into consideration its earlier decisions in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357: 1957 SCR 438] held that as a rule, the court will decline to allow an amendment for a fresh suit on the amended claim if it had become barred by limitation on the date of application.
(See also State Bank of Hyderabad v. Town Municipal Council [(2007) 1 SCC 765 : (2006) 13 Scale 332]
17. In Bhola Nath Rastogi v. Santosh Prakash Arya [AIR 1975 Pat 336] L.M. Sharma, J. (as the learned Chief Justice of India then was), opined: (AIR pp. 338-39, paras 8-9) "8. ... The general rule of survivorship applying to Hindu Mitakshara families still holds good subject of course to cases which are covered by the provisions of Section 6 of the Act. The provision of proviso to Section 6 will be applicable only to such cases where the deceased left behind him surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relatives. It is not suggested by the appellants in the present case that Dhanu Lal died leaving behind any heir other than his two sons. I am, therefore, of the opinion that the proviso to Section 6 does not apply to the present case so as to defeat the rule of survivorship being applied to the parties. When Dhanu Lal died, his two sons took the entire interest by survivorship and as is admittedly the case now there has been separation between the two sons before the sale deed by Defendants 25 to 28 was ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 11 executed. Defendant 1 or his sons, therefore, cannot be permitted to invoke the benefit of Section 22 of the Act.
9. There appears to be another difficulty in the way of the .
appellants in raising this question. Sub-section (2) of Section 22 of the Hindu Succession Act indicates that a party can enforce a right of pre-emption by making an application to that effect in a court which has been explained in the Explanation to this section. If a party intending to take the benefit of the right given under Section 22(1), files an application, the court has to determine the amount of consideration for the intended transfer and the party is again given an option to get such a transfer from the co-sharer on such consideration or to refuse the same. If the party declines to purchase the property for the same amount, he has to bear the cost of the proceeding. No such application has ever been filed by any of the parties anywhere. This plea was not even raised in the court below. It was for the first time in this appeal that the appellants have raised this point. Even in this Court, no application has been filed for enforcement of such a right. In these circumstances, the plea has to be rejected."
18. In Muralidhar Das v. Bansidhar Das [AIR 1986 Ori 119] upon taking into consideration the decisions of the Calcutta and Kerala High Courts, the High Court stated the law in the following terms: (AIR p. 121, para 3) "3. Sub-section (2) provides for determination of consideration when there is a difference between the parties, namely, the one intending to acquire and the other proposing to transfer. The provision does not go any further. Section 22 does not lay down any other procedure. The scope of the application is limited hence the jurisdiction of the court. The section does not lay down the procedure for the enforcement of the right conferred under sub-section (1). Only one aspect of the controversies that might arise pursuant to the right conferred by sub-section (1) has been taken care ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 12 of and no other. The provision being clear and categorical and there being no ambiguity in it, it is not open to the Court to so interpret the provision which would amount to legislating on its part. Ordinarily, .
the courts do not make law but interpret it."
19. The decision of the Kerala High Court also provides for a right upon a co-sharer to file a suit for enforcing such a right, stating: (Subhadra Devi case [AIR 1976 Ker 19], AIR p.
21 para 6) "6. ...The object of sub-section (1) as we understand it is that in cases where by intestate succession under the Act any interest in immovable property has devolved upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. The said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. The section confers on such co- heirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heirs. In case the proposed transfer is effected by one of the co-heirs in violation of the right conferred on his co- heirs by sub-section (1) the latter cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such circumstances, will, in our opinion, be to seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heir in violation of sub-section (1) of Section 22. Inasmuch as the section does not provide any special procedure for seeking the said remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22(1); in other ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 13 words, the remedy is by way of a regular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full .
and fair adjudication of the entire matter in a suit tried before a competent civil court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22(1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heirs in enforcement of the right conferred by Section 22(1)."
20. The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint." (Emphasis supplied)
14. It was held in LIC v. Sanjeev Builders (P) Ltd., 2022 SCC OnLine SC 1128, that when the amendment was barred by limitation it would be declined as a general rule. It was observed: -
29. In Pankaja v. Yellappa (dead) by LRs., (2004) 6 SCC 415, this Court held that it was in the discretion of the court to allow an application under Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The Court noticed that there was no absolute rule that the amendment in such a case should not be allowed. It ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 14 was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would be apposite to notice the observations of this Court in this pronouncement in extenso. The principles were laid down .
by this Court thus:
"12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application.
13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of the expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments.
14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where relief is barred because of limitation, an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.
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16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392]. Therefore, an application for amendment of the pleading should not be disallowed merely because it is .
opposed on the ground that the same is barred by limitation, on the contrary, the application will have to be considered bearing in mind the discretion that is vested with the court in allowing or disallowing such amendment in the interest of justice.
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18. We think that the course adopted by this Court in Ragu Thilak D. John case [(2001) 2 SCC 472] applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought by the appellants is ipso facto barred by the law of limitation and amounts to the introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief."
30. From the above, therefore, one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the court to order it if that is required in the interest of justice.
::: Downloaded on - 13/06/2024 20:31:45 :::CIS 1631. In Ragu Thilak D. John v. S. Rayappan, (2001) 2 SCC 472, this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that .
circumstances the issue of limitation can be made an issue in the suit itself like the one made by the High Court in the case on hand.
32. In a decision in Vishwambhar v. Laxminarayan (Dead) through Lrs., (2001) 6 SCC 163, this Court held that the amendment though properly made cannot relate back to the date of filing of the suit, but to the date of filing of the application.
33. Again, in Vineet Kumar v. Mangal SainWadhera, (1984) 3 SCC 352: AIR 1985 SC 817, this Court held that if a prayer for amendment merely adds to the facts already on record, the amendment would be allowed even after the statutory period of limitation.
15. The conclusions were summed up as under: -
70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of the amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 17
(i) If the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, .
provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side and r to (c) the amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) By the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
::: Downloaded on - 13/06/2024 20:31:45 :::CIS 18(vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after the expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed.
Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before the commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 19 would have a chance to meet the case set up in the amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an .
advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)
16. Therefore, it is apparent from the judgments of the Hon'ble Supreme Court that an amendment cannot be allowed when the same would be barred by limitation on the date of the amendment. In the present case, the amendment was barred by limitation and cannot be allowed.
17. Further, it was rightly submitted on behalf of the defendant that the plaintiff had failed to plead that he could not seek the amendment despite the exercise of due diligence. He simply stated in para 6 that when he was preparing the case for cross-examination, he came to know that the vital and important plea regarding the alternative relief could not be mentioned in the written statement to the counter-claim. No reason was assigned as to why this plea could not be taken at the time of the filing of the ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 20 suit and at any time before the commencement of the trial. When the application was filed, the evidence was being recorded and the trial had commenced. It was laid down by Hon'ble Supreme Court .
in M. Revanna (supra) that the burden lies upon the person, who seeks an amendment after the commencement of the trial to show that he could not have sought the amendment before the amendment of trial. It was observed:
"7. .. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after the commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."
18. This position was reiterated in Vijay Hathising (supra) wherein it was observed:
"9. In our view, the trial court was right in rejecting the application. This we say for more than one reason. First, it was wholly belated; second, Respondent 1-plaintiff filed the application for amendment of the plaint when the trial in ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 21 the suit was almost over and the case was fixed for final arguments; and third, the suit could still be decided even without there being any necessity to seek any amendment in the plaint. In our view, an amendment in the plaint was not really required for the determination of the issues in the .
suit."
19. This Court has also taken a similar view in Rakesh Chand (supra), wherein, it was held:
15. While respectfully concurring with the Guidelines which have been so laid down by the Hon'ble Supreme Court in the above said judgments, in my considered view, these judgments are of no assistance to the respondent in the present case because these Guidelines would come into the picture once the Court is satisfied that yes, despite due-
diligence the party could not incorporate in the pleading which it subsequently intents to incorporate by way of amendment in the pleadings.
16. As the plaintiff has not been able to cross the first hurdle of due diligence itself, in this backdrop, the Guidelines so laid down by the Hon'ble Supreme Court are not attracted at all, because the same will be attracted only if the Court after being satisfied with regard to due-diligence has to apply its judicial mind as to whether the amendment has to be allowed or not.
20. This position was reiterated in Basavaraj v. Indira, (2024) 3 SCC 705: 2024 SCC OnLine SC 208 wherein it was observed:
"10. The proviso to Order 6 Rule 17CPC provides 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. In the case in hand, this is not even the pleaded case of Respondents 1 and 2 before the trial court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All ::: Downloaded on - 13/06/2024 20:31:45 :::CIS 22 what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial, especially when admittedly the facts were in knowledge of Respondents 1 and 2-plaintiffs."
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21. Reliance was placed upon the judgment of this Court in Rajeev Kumar (supra), however, the Court had specifically noticed in para 6 of its order that the applicant had pleaded that he could not take the legal plea despite the exercise of due diligence, which is not the case here. Hence, no advantage can be derived from the cited judgment.
22. In the present case, the plaintiff is seeking to challenge the sale deed executed by his father during his lifetime. The plaintiff claims to be the beneficiary under the Will executed by his father. Learned Trial Court had rightly pointed out that the dispute does not involve the immovable property of an intestate and the seller and the plaintiff do not fall within Class-I of the Schedule annexed to the Hindu Succession Act, therefore, the maintainability of the application itself was in dispute.
23. The plaintiff was not seeking to amend the plaint to incorporate the relief but was seeking to amend the written statement to the counter-claim. It is difficult to see how relief could have been sought in a written statement to the counter-
::: Downloaded on - 13/06/2024 20:31:45 :::CIS 23claim. If the plaintiff wanted some relief, he was required to plead the facts, pay the Court fee thereof and incorporate the same in the plaint. As was observed by the Hon'ble Supreme Court in .
Ashutosh's case (supra), the relief of preemption can only be claimed in a suit and not otherwise. Thus, the amendment to the written statement to the counterclaim could not have been allowed on this ground as well.
24. Therefore, the learned Trial Court had rightly exercised the discretion to refuse the amendment
25. It was laid down by the Hon'ble Supreme Court in Puran Ram v. Bhaguram, (2008) 4 SCC 102: 2008 SCC OnLine SC 407 that the High Court should not interfere with the discretion exercised by the learned Trial Court while deciding the application for amendment unless the order is without jurisdiction, perverse or arbitrary. It was observed:
"18. We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which, in the discretion of the trial court, was allowed. We are of the view that the High Court ought not to have interfered with the order of the trial court when the order of the trial court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial court was either without jurisdiction or perverse or arbitrary."::: Downloaded on - 13/06/2024 20:31:45 :::CIS 24
26. In view of the above, there is no infirmity in the order passed by the learned Trial Court. Hence, the present petition fails and the same is dismissed.
.
27. Interim order granted by this Court vide order dated 05.01.2021, stands vacated. A copy of this order be sent to the learned Trial Court. Parties through their respective Counsel are directed to appear before the learned Trial Court on 03.07.2024.
28. The observation made hereinabove shall confined to the disposal of the petition and will have no bearing, r remain whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 13th June, 2024.
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