Himachal Pradesh High Court
________________________________________________________ vs Desh Raj And Others on 12 June, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 110 of 2021 Date of Decision: June 12, 2023 ________________________________________________________ Sanjay Kumar .......Petitioners .
Versus
Desh Raj and others ... Respondents
________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
________________________________________________________ For the Petitioners: Mr. Romesh Verma, Senior Advocate with Mr. Hitesh Thakur, Advocate.
For the Respondents Mr. Sunil Mohan Goel, Advocate. ________________________________________________________ Sandeep Sharma, Judge(oral):
Instant petition filed under Art. 227 of the Constitution of India, lays challenge to order dated 16.3.2021 passed by learned Civil Judge, Baijnath, District Kangra, Himachal Pradesh in CMA No. 74 of 2021 in Civil Suit No. 106/14 titled Nathu Ram v. Sanjay Kumar, whereby an application under Order VI, rule 17 CPC, filed by the petitioners/defendants (hereinafter, 'defendants') seeking amendment of the written statement, came to be dismissed.
2. Precisely, the facts of the case, as emerge from the record are that the respondents/plaintiffs (hereinafter, 'plaintiffs') filed a suit for permanent prohibitory injunction, restraining the defendant from interfering in the suit land, by way of raising construction of first floor of house consisting of two rooms Pakka Lintel Posh situate over the land comprising of Khata No. 86, Khatauni No. 289, Khasra Nos.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 13/06/2023 20:30:53 :::CIS -2-2501/2468/383, measuring 0-39-20 hectares situate at Mohal Simbal, Mauza Chadihar, Tehsil Baijnath, District Kangra, Himachal Pradesh.
3. Precisely, the plaintiffs set up a case that their predecessor-in-
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interest, Nathu Ram, who is owner of suit land, as detailed herein above, constructed a Pakka Lintel posh house consisting of two rooms over the land comprising of Khasra No. 2501/2468/383 and defendants are having a Kachha Slate posh house adjoining to the house of the plaintiff. Since defendant was in requirement of additional accommodation, he approached the plaintiffs to sublet two rooms to him, as a licensee, which request was acceded to by the plaintiff and he sublet two rooms to the defendant as a licensee. Plaintiffs averred in the plaint that they requested the defendant to hand over peaceful and vacant possession of the licensed premises, they not only refused to accede to the request but also started collecting construction material on the suit land.
4. Defendants refuted the aforesaid claim set up in the plaint by filing written statement, wherein they claimed that the plaintiffs had received entire consideration amount with respect to land to the extent of 00-39-448 hectares, from their father, late Shyam Lal, defendant No.2. In nutshell, defendants claimed themselves to be owner-in-
possession of the suit land.
5. On the basis of pleadings of the parties adduced on record, learned trial Court framed issues and thereafter, plaintiffs also led their evidence. However, before commencement of the evidence of the defendants, defendants filed an application under Order VI, rule 17 ::: Downloaded on - 13/06/2023 20:30:53 :::CIS -3- CPC, seeking amendment of the written statement, especially para-8.
In the application, defendants averred that during pendency of the suit, Ms. Sunita Devi, one of legal heirs of original plaintiff, Nathu Ram, sold .
her share in the suit land to them, as a result of which they have become co-owners in the suit property.
6. Afore prayer made on behalf of the defendants for amendment came to be resisted by the plaintiffs, who in their reply, stated that they have no knowledge of sale deed dated 25.10.2019, alleged to be registered on 8.11.2019, as such, same has no bearing on the case.
Plaintiffs also feigned ignorance with regard to mutation No. 304, dated 8.11.2019. Plaintiffs claimed before learned court below that the proposed amendment, if allowed, shall change the complexion of the suit and there would be multiplicity of litigation.
7. Learned trial Court, having taken note of the aforesaid pleadings as well as material adduced on record by respective parties, dismissed the application. In the aforesaid background, defendants have approached this Court, in the instant proceedings, praying therein to allow the application for amendment after setting aside the impugned order.
8. Having heard learned counsel for the parties and perused the material available on record, vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this court finds that the application for amendment of written statement came to be filed after conclusion of evidence of the plaintiff but before commencement of the evidence of the defendants. Provisions contained under Order VI, rule ::: Downloaded on - 13/06/2023 20:30:53 :::CIS -4- 17, if perused in their entirety, clearly reveal that prayer for amendment of pleadings, can be made at any stage of the proceedings but proposed amendment should be necessary for the determination of .
real question in controversy between the parties. Proviso to aforesaid rule further provides that normally an application for amendment should not be allowed if it is filed after commencement of trial but if the court comes to a conclusion that inspite of due diligence,, party was unable to raise the matter before commencement of trial, it can permit the party to amend the pleadings.
9. In the case at hand, plaintiffs, while filing suit for permanent prohibitory injunction, claimed themselves to be absolute owner of the suit property but the defendants, in their written statement, while negating the plea set up by the plaintiffs, that they had inducted the defendant as a licensee on the suit land, claimed themselves to be owner-in-possession on account of purchase. If the written statement filed by the defendants is perused in its entirety, it clearly suggests that the defendants, while claiming themselves to be in permissive possession of suit land, specifically set up a case that they had purchased suit land for sale consideration of Rs.1.00 Lakh from Nathu Ram, predecessor-in-interest of the plaintiffs. Now by way of proposed amendment, the defendants intend to incorporate in the written statement, that during pendency of the suit, one of legal heirs of original plaintiff Nathu Ram, sold her share in the suit land in favour of the defendants, as a result of which, they have become co-owners in the suit property.
::: Downloaded on - 13/06/2023 20:30:53 :::CIS -5-10. Mr. Sunil Mohan Goel, Advocate appearing for the plaintiffs, while making this court peruse the written statement filed by the defendants, vehemently argued that two contradictory pleas are being .
sought to be set up by the defendants, because, initially, in the written statement, once they had set up a claim that they are owner-in-
possession of suit property, on account of purchase, they cannot be permitted by way of amendment to state that they have purchased some portion of suit land from one of legal heirs of the plaintiff Nathu Ram. Mr. Goel, further argued that in case proposed amendment is allowed, admission made by the defendants in their reply, would be deemed to have been withdrawn, which is not permissible in law. He further submitted that otherwise also, application for amendment, after commencement of trial, especially after closure of plaintiff's evidence, is not maintainable, as such, no illegality can be said to have been committed by learned court below, while passing the impugned order.
11. Per contra, Mr. Romesh Verma, Senior Advocate duly assisted by Mr. Hitesh Thakur, Advocate, while appearing for the defendants, vehemently argued that the admission, if any, made in the written statement with regard to purchase of land from predecessor-in-interest of the plaintiff Nathu Ram, is not being withdrawn, rather by way of application for amendment, factum with regard to purchase of share of one of legal heir of original plaintiff, Nathu Ram is sought to be placed on record. He further submitted that the application for amendment, cannot be said to have been filed after commencement of trial, because evidence of the defendants is yet to commence. He submitted ::: Downloaded on - 13/06/2023 20:30:53 :::CIS -6- that since in the case at hand, one of the legal heir of the original plaintiff, Nathu Ram, sold her share in favour of defendant No.1, after conclusion of evidence of the plaintiffs, application for amendment is .
maintainable.
12. At the cost of repetition, it may be observed that as per provisions contained in Order VI, rule 7 CPC, court can permit the parties to amend the pleadings at any stage of trial, provided that the same is necessary for the adjudication of the case. No doubt, party seeking amendment is under obligation to show before the court that despite due diligence, it was unable to state facts, which are proposed to be added/deleted by way of amendment, but admittedly, in the case at hand, facts sought to be brought on record by way of amendment were not in existence at the time of filing of written statement, as such, defendants could only file application for amendment after occurrence of subsequent developments, which in the case at hand, is sale of land by one of legal heirs of original plaintiff Nathu Ram.
13. Another question, which needs determination in the case at hand, is, "whether allowing of proposed amendment, if any, would amount to withdrawal of admissions, alleged to have been made by the defendants, in the written statement or not?" If the application for amendment is perused in its entirety, it nowhere suggests that the defendants, while making prayer for amendment, sought permission of the court to withdraw admission made in the written statement, rather, by way of amendment, they intend to place on record subsequent ::: Downloaded on - 13/06/2023 20:30:53 :::CIS -7- developments with regard to sale of land made by one of legal heirs/co-sharers in the suit land.
14. No doubt, proposed amendment, if allowed, would be contrary .
to the plea set up in the written statement wherein admittedly, at the first instance, defendants claimed themselves to be owner-in-
possession of suit land but, by now, it is well settled that the defendants while filing written statement, can take contradictory pleas.
Moreover, once there is no specific denial by the plaintiffs with regard to execution of sale deed by one of legal heirs of original plaintiff Nathu
15.
r to Ram, factum with regard to sale, if any, shall have definite bearing on the suit, especially when title of defendants is under question.
Their Lordships of the Hon'ble Supreme Court in State of Madhya Pradesh v. Union of India and another reported in (2011) 12 SCC 268 have held that where an application is filed after the commencement of the trial, it must be shown that despite due diligence, said amendment could not have been sought earlier. Their lordships have held as under:
"7. The above provision 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 must be ::: Downloaded on - 13/06/2023 20:30:53 :::CIS -8- shown that in spite of due diligence, such amendment could not have been sought earlier.
The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot .
be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."
16. The Hon'ble Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017)5 SCC 212, has culled out certain principles while allowing or rejecting the application for amendment, which are as under:-
"13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers vs. Narayanaswamy & Sons, (2009)10 SCC 84, this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under:
(SCC p.102) "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.::: Downloaded on - 13/06/2023 20:30:53 :::CIS -9-
(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 6 Rule 17. These are only illustrative and not exhaustive."
17. In the aforesaid judgment, the Hon'ble Apex Court has clearly held that while allowing/rejecting the application for amendment of the plaint, it is to be seen whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case. In the case at hand, refusing the amendment, would in fact lead to injustice and multiplicity of litigation.
18. Though, in the case at hand, Mr. Goel, Advocate vehemently argued that the proposed amendment, if allowed, would definitely change the nature and character of the sui but such submission is sans merit, because, while allowing amendment, court below has not permitted the defendants to withdraw the admission, if any, made in the written statement, with regard to their being absolute owner of the property on the strength of sale made in favour of defendant No.2 by original plaintiff Nathu Ram. By way of amendment, factum with regard to the sale during pendency of suit has been sought to be placed on record by the defendants, which, if permitted would not cause any loss to the parties, rather would help learned trial Court to adjudicate the controversy in an effective manner.
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19. No doubt, amendment cannot be claimed as a matter of right, but court, while deciding such matter should not adopt a hyper-
technical approach. Liberal approach should be the general rule .
particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.
20. Since, in the case at hand, factum with regard to subsequent sale made by one of legal heirs of original plaintiff Nathu Ram, has not been disputed, proposed amendment, if not allowed, certainly would lead to multiplicity of litigation.
21. Hon'ble Apex Court in Baldev Singh v. Manohar Singh, (2006)6 SCC 498, has held that court should be extremely liberal in granting prayer for amendment of pleadings, unless serious injustice or irreparable loss is caused to the other side. Hon'ble Apex Court has held in the judgment supra, as under:
"7. Before we take up this question for our decision, we must consider some of the principles to be governed for allowing an amendment of the pleadings.
8. It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922 P.C. 249) in which the Privy Council observed:::: Downloaded on - 13/06/2023 20:30:53 :::CIS
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"All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet .
been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit."
9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that 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. A bare perusal of this provision, it is pellucid that Order 6 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 controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 of the CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pladings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed ::: Downloaded on - 13/06/2023 20:30:53 :::CIS
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in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter .
before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later.:
22. Hon'ble Apex Court in Surendra Kumra Sharma v. Makhan Singh, (2009) 10 SCC 626, has held 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 latches in making the application for amendment cannot be a ground to refuse 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 ::: Downloaded on - 13/06/2023 20:30:53 :::CIS
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allowed, can be compensated by cost or otherwise.[See B.K. N. Pillai Vs. P. Pillai and another [AIR 2000 SC 614 at Page 616]. 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.
23. After having gone through the aforesaid judgments passed by Hon'ble Apex Court, it can be safely inferred that the prayer for amendment, even if made at a belated stage, is required to be accepted. Amendment cannot be refused merely on the ground of delay, especially when, such amendment is necessary for deciding real controversy between the parties.
24. Consequently, in view of the detailed discussion made herein above and law taken note of, this court finds sufficient merit in the present petition and same is allowed. Order dated 16.3.2021 passed by learned Civil Judge, Baijnath, District Kangra, Himachal Pradesh in CMA No. 74 of 2021 in Civil Suit No. 106/14 titled Nathu Ram v.
Sanjay Kumar is set aside. Application for amendment of written statement, filed by the defendants, is allowed. Parties through their counsel undertake to appear before learned court below on 10.7.2023, enabling it to proceed further with the matter. All pending applications stand disposed of. Interim directions, if any stand vacated. Record, if received, be sent back forthwith.
(Sandeep Sharma) Judge June 12, 2023 (Vikrant) ::: Downloaded on - 13/06/2023 20:30:53 :::CIS