Jharkhand High Court
Manoj Kumar Maheshwari vs Gossenner Evengelical Lutheran Church ... on 5 April, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P. (C) No. 6522 of 2012
........
Manoj Kumar Maheshwari, son of Sri Madhusudan Maheshwari, resident of Flat No. 705, 7th Floor, Panchawati Building, Kanke Road, P.O. - Ranchi, P.S. - Gonda, District - Ranchi.
.... ..... Petitioner
Versus
Gossenner Evengelical Lutheran Church (also known as GEL Church), Main Road, P.O. - Ranchi, P.S. - Lower Bazar, District - Ranchi.
.... ..... Respondents CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............
For the Petitioner : Mr. Rohit Roy, Advocate.
Ms. Apurwa Pathak, Advocate.
For the Respondent : Mr. Jai Prakash, Sr. Advocate.
Mr. Yogesh Modi, Advocate.
........
14/05.04.2022.
Heard, learned counsel for the petitioner, Mr. Rohit Roy assisted by learned counsel, Ms. Apurwa Pathak and learned senior counsel for the respondent, Mr. Jai Prakash assisted by learned counsel, Mr. Yogesh Modi.
Learned counsel for the petitioner, Mr. Rohit Roy has submitted, that Manoj Kumar Maheshwari, the original plaintiff has preferred the present writ petition on 29.10.2012, for quashing the order dated 12.09.2012 passed by the learned Additional Munsif-II, Ranchi, in T.S. No. 212 of 2005, whereby the petition filed by the plaintiff / petitioner under Order VI Rule 17 C.P.C. for making necessary amendment, which is formal in nature, but the trial court has rejected the same.
Learned counsel for the petitioner, Mr. Rohit Roy has further submitted, that earlier Coordinate Bench of this Court has considered the impugned order and in terms of order dated 13.06.2013 has passed order for issuance of notice upon sole respondent.
The matter was listed thereafter on several dates. Ultimately, it was taken up by this Court on 23.02.2022, when it has been detected by the petitioner, that there are some mistakes at paragraph- 16 & 20 in the writ petition and such mistakes do not create any -2- right in favour of the defendant / respondent nor such mistakes are with regard to the proceeding pending, before the trial court, rather those were typographical mistakes made in the writ petition, whereby the word 'not' has been missed in 3 rd line at para-16 and in 4th line at para-20 of the writ petition.
Learned counsel has further submitted that though these two words are not going to affect the merit of the title suit or present writ petition pending before this Court, as in the counter affidavit filed by the defendant / respondent on 18.10.2013, the defendant / respondent has considered that there is word 'not', which ought to have been considered by the petitioner at the time of filing of the writ petition, but because of typographical error, such mistakes have occurred. Since such mistakes have no any affect on the title suit, as the same are not being raised, rather in the counter affidavit filed by the defendant / respondent, para-16 of the writ petition has been replied in para-27 of the counter-affidavit. Para-27 of the counter- affidavit may quoted be hereunder:-
"That in reply to paragraph-16 of the writ application, it is submitted that the proposed amendment is not formal in nature as it will change the nature and character of the suit because lease deed does not contain provision of automatic renewal of the lease deed. It is further submitted that if the proposed amendment is allowed this will frustrate the main purpose of the lease deed."
So far para-20 of the writ petition is concerned, the reply has been given in para-30 of the counter affidavit, where it has been mentioned that "in reply to paragraph-19 to 22 of the writ application, it is submitted that the learned trial court has rightly rejected the amendment petition on the ground of delay and secondly, on the ground that the proposed amendment is sought after the defendant has initiated an Eviction Suit against the plaintiffs. So the order dated 12.09.2012 is justified and legal."
-3-Learned counsel for the petitioner, Mr. Rohit Roy has thus submitted, that this word 'not' is missing in 3 rd line of para-16 and 4th line of para-20 of writ petition has been taken care of by the defendant / respondent, while filing the counter affidavit. Since the same has been agitated by the learned counsel for the defendant / respondent during hearing on 23.02.2022, as such, it is necessary for the petitioner / plaintiff to file such application for making correction in the writ petition, for which I.A. No. 1851/2022 has been filed, though such correction will not affect or cause prejudice to the defendant because those corrections are not going to change the plaint or written statement, which is pending before the Additional Munsif-II, Ranchi, as such, such typographical mistakes occurred in writ petition may be ignored and petitioner may be allowed to make necessary correction by inserting the word 'not' in 3rd line of para-16 and 4th line of para-20 of the writ petition, as the same is formal in nature, not going to change the nature of the writ petition, nor causing prejudice to the other side, as the defendant / respondent have understood the same as typographical mistake and have taken care of while filing the counter affidavit as mentioned above.
Learned counsel for the petitioner, Mr. Rohit Roy has relied upon the Section 141 of the C.P.C., which reads as follows:-
Miscellaneous Proceeding .- The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Learned counsel for the petitioner has submitted that the explanation in this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.
Learned counsel for the petitioner thus submitted that such typographical mistakes, which have been ignored in the counter affidavit filed by the defendant / respondent has been argued before this Court and thus, necessity has arisen to file interlocutory -4- application, which may be allowed considering that substantial justice is to be done by the Court by allowing such interlocutory application. The nature of the original title suit i.e. Title Suit No. 212/2005, pending in the court of learned Additional Munsif-II, Ranchi is not going to be changed, as such, this mistakes are only cropped up so far filing of the writ petition is concerned, as such, such mistakes are formal in nature and I.A. No. 1851/2022 may be allowed.
Learned counsel for the petitioner, Mr. Rohit Roy has placed reliance upon the judgment passed by the Apex Court in the case of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and others reported in (2012) 7 SCC 788. Para-5 & 6 of the aforesaid judgment reads as follows:-
5. It is equally well settled that while examining whether a plaint or an election petition discloses a cause of action, the Court has a full and comprehensive view of the pleading. The averments made in the plaint or petition cannot be read out of context or in isolation.
They must be taken in totality for a true and proper understanding of the case set up by the plaintiff.
6. This Court has Udhav Singh V. Madhav Rao Scindia given a timely reminder of the principle in the following words :-
"33. We are afraid, this ingenious method of construction after compartmentalisation, dissection, segregation and inversion of the language of the paragraph, suggested by the counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the -5- pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole."
Learned senior counsel, Mr. Jai Prakash assisted by learned counsel, Mr. Yogesh Modi has opposed the prayer and has submitted, that initial writ petition has been filed in the year 2012 with regard to an order dated 12.09.2012 passed by the learned Additional Munsif-II, Ranchi in T.S. No. 21/2005, whereby an application filed by the petitioner / plaintiff before the court below under Order VI Rule 17 C.P.C. has been rejected, but while filing writ petition, such mentioning of the word 'not' amounts to an admission made in the writ petition, as such, admission made in the writ petition cannot be allowed to withdraw by the petitioner / plaintiff.
Learned senior counsel, Mr. Jai Prakash has further submitted, that Order VI Rule 17 of C.P.C. has a unique feature, that prior to 1999, it was very liberal, but after the amendment, which came in the year 2002 and it has been mentioned, that unless the trial commenced, such condition has been made, as such, such admission made in the writ petition may not allowed to be withdrawn.
Learned senior counsel has placed reliance upon the judgment passed by the Apex Court in the case of A.K. Gupta & Sons Ltd. V. Damodar Valley Corpn. reported in (2000) 1 SCC 712. Para-4 of the aforesaid judgment reads as follows:-
"The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal [(1887) 19 QBD 394 : 56 LJ QB 621] . But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan [AIR 1921 PC 50 : ILR 48 Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357 : 1957 SCR 438] -6- The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith [(1884) 26 ChD 700 : 53 LJ Ch 891 : 51 LT 729] ) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644 : 11 Bom LR 1042] approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363 : 1957 SCR 595] ).
The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill [(1873) 8 CP 107 : 42 LJCP 98 : 28 LT 32] in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd. [(1962) 2 All ER 24 (CA)] and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'new set of ideas': Dornan v. J.W. Ellis and Co. Ltd. [(1962) 1 All ER 303 (CA)] This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time."
Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court held: (SCC p. 399, para 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."
In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it was held: (SCC p. 93, para 4) "4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."
The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as the question of prejudice is less likely to operate in that event. The defendant has a right to take alternative -7- plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.
Learned senior counsel has further placed reliance upon the judgment passed by the Apex Court in the case of M. Revanna Vs. Anjanamma, reported in (2019) 4 SCC 332. Para-9 of the aforesaid judgment reads as follows:-
9. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff 6 Respondent 1 herein.
Learned senior counsel has further placed reliance upon the judgment passed by the Apex Court in the case of Vijay Hathising v. Gitaben Parshottamdas Mukhi, reported in (2019) 5 SCC 360. Para-9 of the aforesaid judgment reads as follows:-
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 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, amendment in the plaint was not really required for determination of the issues in the suit.
Learned senior counsel has further placed reliance upon the judgment passed by the Apex Court in the case of Pandit Molhari -8- Mahale Vs. Monika Pandit Mahali, reported in (2020) 11 SCC
549. Para-7 &8 of the said judgment reads as follows:-
7. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matterbeforethecommencementof trial.
In Vidyabai v. Padmalatha [Vidyabai v. Padmalatha, (2009) 2 SCC 409 :
(2009) 1 SCC (Civ) 563] , this Court observed in para 19 as under: (SCC p. 416) "19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order [Pandit Malhari Mahale v. Monika Pandit Mahale, 2018 SCC OnLine Bom 11687] of the High Court as well as of the Civil Judge, the amendment application stands dismissed.
Learned senior counsel, Mr. Jai Prakash has thus submitted that this Court may not allow the writ petitioner to withdraw such admission made in the writ petition and the interlocutory application is fit to be dismissed.
After hearing learned counsel for the parties and looking into facts and circumstances of the case, it is unfortunate that the main writ petition is pending with regard to an order passed by the court below, whereby the amendment application filed by the plaintiff / petitioner under Order VI Rule 17 C.P.C. has been rejected on 12.09.2012, though in the writ petition in 3 rd line of para-16 and 4th line of para-20 of the writ petition, the word 'not' is missing, which changes the meaning of para-16 & 20 of the writ petition, though this has been properly understood by the defendant / respondent, while replying in the counter affidavit at para-27 & 30 and thus no prejudice would be caused to the parties as it was considered by the defendant at the time of filing counter affidavit, that it is clerical mistake.
-9-This Court has also examined whether such admission made by the writ petitioner as claimed by the counsel for the defendant / respondent is going to affect the order passed by the learned court below or suit pending before learned Additional Munsif-II Ranchi, in Title Suit No. 212/2005. After perusal of the same, it appears that these mistakes are not in the original suit pending before the learned trial court, rather it is in the present writ petition and it is not going to prejudice in any manner to the defendant / respondent.
Accordingly, this Court considering such mistakes committed while filing writ petition is a mistake, which is not going to affect the merit of the case (Title Suit No. 212/2005).
I.A. No. 1851/2022 is allowed.
Petitioner is directed to make necessary correction by 08.04.2022.
Let the matter appear before this Court on 11.04.2022 under the appropriate heading.
(Kailash Prasad Deo, J.) Sunil/-