Kerala High Court
Eapen Antony vs Joseph on 13 February, 2009
Equivalent citations: AIR 2009 (NOC) 1170 (KER.), 2009 AIHC (NOC) 911 (KER.)
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4270 of 2009(G)
1. EAPEN ANTONY, AGED 55 YEARS,
... Petitioner
Vs
1. JOSEPH, S/O.CHACKO,
... Respondent
2. THRESSIAMMA JOSEPH, W/O.JOSEPH,
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :13/02/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) NOS.4270 & 4281 OF 2009
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Dated this the 13th February, 2009
JUDGMENT
The question involved in these Writ Petitions is whether the plaintiff in a suit can be allowed to amend the plaint after the evidence on his side is closed. These Writ Petitions came up for admission on 10.2.2009. The question involved being the same, as agreed by the counsel appearing for the petitioners, these Writ Petitions are being disposed of by this common judgment.
2. In W.P.(C) No.4270 of 2009, the respondents/plaintiffs filed the application for amendment of the plaint by amending the description of the plaint schedule property. The court below allowed the application which is under challenge in the Writ Petition. The plaint schedule property is a pathway leading to the plaintiffs' residential compound. The plaint schedule property was purchased by the plaintiffs as per a registered document of the year 1981. The property of the first defendant lies on the northern and western side of the plaint schedule property. It is stated that the pathway starts from the north-eastern corner of an extent of 30 cents of land. In the document of title also, the property is similarly described. The suit was filed for a permanent injunction restraining the W.P.(C) NOS.4270 AND 4281 OF 2009 :: 2 ::
defendants from entering into the plaint schedule property. The first plaintiff stated in the affidavit accompanying the application for amendment that the pathway starts from the north-western corner of the 30 cents of land and not from the north-eastern side. He came to know of the mistake in the title deed and in the plaint schedule only when he was cross examined by the defendants on 14.1.2009. The plaintiffs filed the application on 23.1.2009 for amendment of the plaint. The application was opposed by the defendants. The first defendant contended that the suit was listed for evidence on 14.1.2009 and PW1 to PW5 were examined on the side of the plaintiffs. On 29.1.2009, DW1 was examined. Meanwhile, on 23.1.2009, the application for amendment of the plaint was filed by the plaintiffs. There is no mistake as alleged. The first defendant contended that the application for amendment is not maintainable in view of the bar under the proviso to Rule 17 of Order VI of the Code of Civil Procedure.
3. The court below allowed the application holding thus:
"This court had gone through the evidence adduced in this case. The resurvey plan, the commissioner's report, the tax receipts and even the contentions raised by the defendants would all go to show that all parties have no dispute regarding the aspect that what has been purchased by the plaintiffs is the 5 cents from the north western corner of the 30 cents of the predecessor in title."
W.P.(C) NOS.4270 AND 4281 OF 2009 :: 3 ::
It was also held that for a proper and just adjudication of the disputes in the case, it is just and necessary to allow the proposed amendment.
4. In W.P.(C) No.4281 of 2009, the writ petitioners, the defendants in the suit, challenge the order passed by the court below allowing the application for amendment of the plaint, by which the respondent/plaintiff was permitted to amend description of the two boundaries in the plaint schedule. The suit is for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property. The averments in the plaint show that the property of the defendants is situated on the south-eastern side of the plaint schedule property. The defendants tried to demolish a portion of the fence on the north-eastern corner of he plaint schedule property to make it appear that there is a pathway through the eastern side of the plaint schedule property from the road on the northern side leading to the defendants' property. The attempt of the defendants is to cut open a way through the eastern side of the plaint schedule property. The eastern boundary is described as the property belonging to the plaintiff and the southern boundary is shown as the property belonging to Rajappan. By the amendment, the eastern boundary is sought to be changed as the property belonging to Joseph and the southern boundary is sought to be changed as the properties belonging to Rajappan and the defendants. The change sought to be W.P.(C) NOS.4270 AND 4281 OF 2009 :: 4 ::
made in the southern boundary description is certainly consistent with the plaint averments. The plaintiff stated in the application for amendment that he came to know of the mistake in the description of the boundaries only when he was cross examined by the counsel for the defendants. It is stated that the mistake was a bona fide clerical error. The plaintiff pointed out that the disputed property is identifiable and that there is no challenge as to the identity of the property. The defendants opposed the application and contended that even in the written statement it was stated by them that the description of the plaint schedule property is not correct. The plaintiff did not take any steps at that time to amend the plaint. The court below allowed the application holding that there is no case for the defendants disputing the identity of the property and that it is probable that the plaintiff realised the mistake as alleged by him. It was also held, on a consideration of the pleadings of the parties, that no valuable right has accrued to the defendants due to boundary description as shown in the plaint and there is no admission which is sought to be taken away by the amendment. The court below also took the view that by allowing the amendment, no prejudice would be caused to the defendants. The application for amendment was filed on 10.10.2008. The plaintiff was examined on 24.9.2008 and he was cross examined on 6.10.2008. The evidence on the side of the plaintiff was closed and the application for amendment of the plaint was filed thereafter.
W.P.(C) NOS.4270 AND 4281 OF 2009 :: 5 ::
5. Learned counsel appearing for the petitioners in the Writ Petitions submitted that after the amendment of Rule 17 of Order VI of the Code of Civil Procedure by the Amendment Act 22 of 2002, an application for amendment of the plaint cannot be allowed after the closure of the evidence on the plaintiff's side.
6. In Salem Advocate Bar Association, T.N. v. Union of India ((2005) 6 SCC 344), the Supreme Court held thus:
"26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment 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 trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."
7. In Sajjan Kumar v. Ram Kishan ((2005) 13 SCC 89), at the final stage of the suit, the plaintiff filed an application for amendment of the plaint. The amendment sought for was for correction of the W.P.(C) NOS.4270 AND 4281 OF 2009 :: 6 ::
description of the suit premises in the plaint. It was alleged by the plaintiff that in the rent note itself, the description of the property was incorrect and the same description was repeated in the plaint. The Supreme Court held thus:
"5. Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff- appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff-appellant succeeding in the suit."
8. In Chander Kanta Bansal v. Rajinder Singh Anand ((2008) 5 SCC 117), it was held thus:
"The new proviso lays down that no application for amendment shall be allowed after the commencement of the trial, 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This W.P.(C) NOS.4270 AND 4281 OF 2009 :: 7 ::
would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.
13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases."
9. In Rajesh Kumar Aggarwal v. Modi (2006 (3) KLT 192 (SC)), it was held thus:
"16. O.VI R.17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."
It was also held that the real test is whether the amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed.
10. In Baldev Singh v. Manohar Singh (2006 (3) KLT 953 (SC)), W.P.(C) NOS.4270 AND 4281 OF 2009 :: 8 ::
it was held that Order VI Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the court may, at any stage of the proceedings, allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversy raised between the parties. Therefore, in view of the provision made in Order VI Rule 17 of the Code of Civil Procedure, it cannot be doubted that wide powers and unfettered discretion are conferred on the court to allow amendment of pleadings to a party in such a manner and on such terms as it appears to the court just and proper.
11. Rule 17 of Order VI of the Code of Civil Procedure reads as follows:
"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."
By the Code of Civil Procedure Amendment Act, 1999, Act 46 of 1999, Rule 17 of Order VI was omitted. The Rule was re-introduced by W.P.(C) NOS.4270 AND 4281 OF 2009 :: 9 ::
the Amendment Act 22 of 2002. However, the proviso which was not in existence before the amendment, was added. By the proviso, jurisdiction of the court to allow amendment of pleadings is restricted after the commencement of the trial. But this restriction has an exception, that is, if the Court comes to the conclusion that in spite of due diligence, the party applying for amendment could not have raised the matter before the commencement of trial, the Court has jurisdiction to allow the amendment. Mistakes may occur in the pleadings due to various reasons. The mistakes may lie undetected till it is brought to light in the cross examination of the party or witness or at the time of arguments. Some times, the mistake in the plaint would not be known even to the defendant till the litigation comes to the last stage. The averments in the pleadings may some times take the shape of admission which the opposite party is entitled to take advantage of. Evidence would be adduced by the opposite party taking into account such admission. An amendment of the pleading withdrawing such admission would cause prejudice to the party relying on the admission. In some cases, the amendment sought to be introduced may change the nature and character of the suit, in which case, the court would not normally allow the amendment. It is also likely that the Court may have to raise additional issues if certain amendments are allowed and the Court would be compelled to afford opportunity to the parties to adduce further evidence. W.P.(C) NOS.4270 AND 4281 OF 2009 :: 10 ::
The parties may resort to dilatory tactics and may try to protract the proceedings under the pretext of amendment of the pleadings. All these are matters to be taken note of by the Court while considering the application for amendment. A fair and speedy trial is aimed at by the Code of Civil Procedure, particularly by the amendment introduced in Rule 17 of Order VI. Restrictions are imposed on the right of a party to amend his pleadings, in order to avoid misuse of the right and to check the dilatory tactics of the parties. Courts take a liberal view in favour of allowing amendment. For a complete and effective adjudication of the disputes involved in the case, it would become necessary to allow the parties to amend their pleadings. The Court may also allow a party to amend the pleadings taking note of the subsequent events. Avoidance of multiplicity of suits is another object of allowing the parties to amend their pleadings. However, the law makers thought that the power given to the Court to allow amendment of the pleadings at any stage of the proceedings have resulted in delay in disposal of cases pending before civil courts. The proviso to Rule 17 was added in such circumstances.
12. The contention that amendment of plaint cannot be allowed after the closure of evidence is to be considered in the light of the principles of law mentioned above. The opening part of Rule 17 of Order VI of the Code of Civil Procedure provides that the court may, at any W.P.(C) NOS.4270 AND 4281 OF 2009 :: 11 ::
stage of the proceedings, allow either party to amend his pleadings. The proviso restricts the power of the Court to allow an application for amendment after the trial has commenced, unless the conditions mentioned in the proviso are satisfied. If the exception to the first part of the proviso is satisfied and the Court comes to the conclusion that in spite of due diligence, the party could not raise the matter before commencement of the trial, it does not restrict the power of the Court to allow the amendment even after closure of the evidence. In such a case, the main part of Rule 17 empowering the Court to allow amendment at any stage of the proceedings will come into operation. A stage after the closure of evidence and before pronouncement of the judgment is also a stage at which the Court may exercise the jurisdiction under Rule 17 of Order VI of the Code of Civil Procedure. Therefore, I do not think that the Court lacks jurisdiction to allow amendment after the evidence is closed. If the Court comes to a conclusion in favour of the party applying for amendment as provided in the proviso to Rule 17, the jurisdiction to allow the amendment would extend even to a stage after the commencement of the trial, conclusion of the evidence, commencement of arguments and even conclusion of arguments. The power to allow amendment can be exercised at any stage of the proceedings and it means, at any stage before the judgment is pronounced. That the Court has power to allow amendment of pleadings even after the closure of evidence, certainly W.P.(C) NOS.4270 AND 4281 OF 2009 :: 12 ::
does not mean that a party would have unrestricted rights to apply for amendment of the pleadings. Nor does it mean that the Courts would allow such amendments unmindful of the consequences and the probable prejudice to the opposite party.
In the facts and circumstances of the case, the respective courts came to the conclusion that the amendment sought for is necessary for the complete and effectual disposal of the case and that by allowing the amendment, no prejudice would be caused to the defendants. Having rightly arrived at such a finding, I do not think that the courts below committed any error in allowing the amendment. The Writ Petitions lack merits and they are accordingly dismissed in limine.
(K.T.SANKARAN) Judge ahz/