Allahabad High Court
Imtiaz Ahmad vs A.D.J. And Ors. on 20 October, 2005
Equivalent citations: 2006(2)AWC1190
Author: Shishir Kumar
Bench: Shishir Kumar
JUDGMENT Shishir Kumar, J.
1. This writ petition has been filed for quashing the order dated 6.12.2000, passed by the respondent No. 1 (Additional District Judge, Fatehpur) by which the amendment application of the petitioner has been rejected.
2. The petitioner filed a Suit No. 6, of 1982 in the Court of District Judge, Fatehpur, for the relief of injunction and for cancellation of the sale deed. It has been alleged that during the pendency of the suit, the petitioner was dispossessed from the property in dispute on 20.3.1983. The petitioner filed an amendment application for amendment, claiming the relief of possession. The Learned Civil Judge (Senior Division), Fatehpur, heard the amendment application and allowed the same by judgment and order dated 8.4.1997. The contesting respondents (defendants) filed a Revision No. 46 of 1997 in the Court of District Judge, Fatehpur, which was allowed by the judgment and order dated 6.12.2000 and set aside the judgment and order dated 8.4.1997 and rejected the amendment application.
3. Aggrieved by the order dated 6.12.2000 the petitioner has approached this Court.
4. The petitioner submits that as at the time of filing the suit, the petitioner was in possession of the property, as such, no relief for possession was sought in the relief claimed in the suit. Only relief of injunction and cancellation of sale deed was sought while filing the plaint before the Court. As the petitioner during the pendency of the suit has been dispossessed from the property, therefore, it was necessary to amend the plaint seeking relief of possession. It has also been submitted on behalf of the petitioner that the amendment application can be allowed at any stage and at the time of filing the suit the petitioner was in possession, therefore, no relief of possession was sought and immediately after dispossessing from the land in dispute the amendment application has been filed.
5. The petitioner has placed reliance upon a judgment of the Apex Court in Raghu Thilak D. John v. S. Rayappan and Ors. 2001 (1) AWC 622 (SC) : 2001 (42) ALR 582 and has placed reliance upon Para 5 of the said judgment that Court should not adopt hyper technical approach while considering the amendment application. Another judgment relied upon by the counsel for the petitioner is Prem Bakshi and Ors. v. Dharam Dev and Ors. 2002 (1) AWC 484 (SC) : 2002 (93) RD 104. The reliance has been placed upon another judgment of this Court in Mishri Singh v. Bird Additional District Judge, Basti and Ors. 2003 (4) AWC 2889.
6. On the basis of the aforesaid decisions the counsel for the petitioner submitted that the power to allow the amendment application is very wide and can be exercised at any stage of the suit in the interest of justice and the Court should not take very hyper technical view while considering the amendment application.
7. On the other hand the learned Counsel for the respondents Sri Srikant, Advocate, has submitted that even assuming without admitting this fact that amendment application can be allowed at any point of time but there must be some reasonable explanation to this effect that the amendments sought and the relief sought in the amendment application was not in the knowledge of the plaintiff at the time when the suit was filed. It has further been submitted that according to the case of the petitioner, the petitioner was dispossessed from the land in dispute on 30.3.1983 but the petitioner has not taken any steps to file an amendment application for seeking the relief of possession upto 14.10.1996. It was only in the year 1996, the petitioner has filed an amendment application and the court below has illegally without considering this aspect of the matter that the amendment sought by the petitioner was highly belated only to delay the proceedings. The revisional court had recorded a categorical finding of fact regarding the question of limitation and has held that it is not disputed that the amendment can be allowed at any stage if it is established by the plaintiff that relief sought in the amendment was not in the knowledge when the plaintiff had approached the Court by way of filing the suit as such, no relief was sought at the time when the suit was filed. The revisional court has clearly recorded a finding that the present amendment application filed on behalf of the plaintiff-petitioner is an afterthought and only to change the nature of the suit after a lapse of about 13 years. As such, the writ petition filed on behalf of the petitioner is liable to be dismissed.
8. I have heard learned Counsel for the petitioner and Sri Srikant, learned Counsel for the respondents and have perused the record.
Order VI, Rule 17 provides amendment of the pleadings. By Amendment of 2002, a proviso has been added that amendments should generally be allowed at this stage of pre-trial of the suit. But subsequent thereto, the Court must be satisfied as to why the pleadings could not be brought in, unless it was based on subsequent developments.
The issue involved herein is being considered by the Courts every day. Amendment in the pleadings may generally be allowed and the amendment may also be allowed at the belated stage. However, it should not cause injustice or prejudice to the other side. The amendment sought should be necessary for the purpose of determining the real question in controversy between the parties. Application for amendment may be rejected if the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him injury which could not be compensated in terms of cost or change the nature of the suit itself as it cannot be permitted to create an entirely new case by amendment. A right accrued in favour of a party by lapse of time cannot be permitted to be taken away by amendment. Amendment can also be allowed at appellate stage. Introduction of an entirely new case, displacing even admission by a party is not permissible. (Vide Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. ; Nanduri Yogananda Laxminarsimhachari and Ors. v. Sri Agasthe Swarswamivaru ; Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. ; Ishwardas v. State of M.P. AIR 1979 SC 551 and Mulk Raj Batra v. District Judge, Dehradun ).
9. Similar view has been reiterated in G. Nagamma and Anr. v. Siromanamma and Anr. and B.K. Narayana Pillai v. Parameshwaran Pillai and Anr. . However, a party cannot be permitted to move an application under Order VI, Rule 17 of the Code after the judgment has been reserved. (Vide Arjun Singh v. Mohindra Kumar and Ors. ).
10. A Constitution Bench of the Hon'ble Supreme Court in Municipal Corporation of Greater Bombay v. Lala Pancham and Ors. , observed that even the Court itself can suggest the amendment to the parties for the reason that main purpose of the Court is to do justice, and therefore, ,it may invite the attention of the parties to the defects in the pleadings, so that same can be remedied and the real issue between the parties may be tried. However, it should not give rise to entirely a new case.
11. In Jagdish Singh v. Natthu Singh , the Hon'ble Supreme Court held that the Court may allow to certain extent even the conversion of the nature of the suit, provided it does not give rise to entirely a new cause of action. An amendment sought in a plaint filed for specific performance may be allowed to be done without abandoning the said relief but amendment seeking for damages for breach of contract may be permitted.
12. In Union of India and Ors. v. Surjit Singh Atwal . the Apex Court held that in case of gross delay, application for amendment must be rejected.
13. It is settled legal proposition that if a right accrued in favour of a party, as the order impugned has not been challenged in time, the said right cannot be taken away by seeking amendment in pleadings. (Vide Radhika Devi v. Bqjrangi Singh and Dondapati Narayana Reddy v. Duggireddy Venkatanarayana Reddy ).
14. In G. Nagamma and Ors. v. Siromanamma and Anr. JT 1998 (4) SC 484, the Hon'ble Apex Court held that in an application under Order VI, Rule 17, even an alternative relief can be sought; however, it should not change the cause of action or materially affect the relief claimed earlier.
15. In Vineet Kumar v. Mangal Sain Wadhera , the Hon'ble Supreme Court held that normally amendment is not allowed if it changes the cause of action, but where the amendment does not constitute the addition of a new cause of action, or raises a new case, but amounts to not more than adding to the facts already on record, the amendment should be allowed even after the statutory period of limitation.
16. In Fritiz T.M. Clement and Anr. v. Sudhakaran Nadar and Anr. , the Hon'ble Supreme Court held that in case the original plaint is cryptic and amendment sought to incorporate about some undisputed facts elaborating plaintiffs claim is based on the said admitted facts, amendment should be allowed as it would place the defendant in a better position to defend and would certainly not prejudice his cause. More so, if the claim does not challenge the nature of the relief and rate of fee etc. is challenged without challenging the total amount claimed, such amendment may be allowed even at a belated stage.
17. In Gurdial Singh v. Raj Kumar Aneja , the Hon'ble Supreme Court deprecated the practice adopted by the Courts entertaining the application under Order VI, Rule 17 of the Code containing very vague and general statements of facts without having necessary details in amendment application enabling the Court to discern whether the amendment involves withdrawal of an admission made either or attempts to introduce a time-barred plea or claim or is intended to prevent the opposite party from getting the benefit of a right accrued by lapse of time, as amendment cannot be permitted to achieve the said purposes.
18. Similarly, in Om Prakash Gupta v. Ranbir B. Goyal , the Hon'ble Supreme Court reiterated the same view extending the scope of Order VI, Rule 17 of the Code, observing that amendment should not disturb the relevant rights of the parties those existed on the date of institution of a suit, but subsequent events may be permitted to be taken on record in exceptional circumstances if necessary to decide the controversy in issue. The Court held as under:
"Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order VI, Rule 17, C.P.C. Such subsequent event, the Court may permit being introduced in the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan & Co. v. RM.N.N. Nagappa Chettiar , this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be founded; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho (1988) 25 IA 195 (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted."
19. In Muni Lal v. Oriental Fire and General Insurance Co. Ltd. , the Hon'ble Apex Court held that the relief of amendment should be granted to "render substantial justice without causing injustice to the other party or violating fair-play and the Court should be entitled to grant proper relief even at the stage of appellate forum." Similar view has been reiterated in Jagdish Singh v. Natthu Singh .
20. In Smt. Ganga Bai u. Vijay Kumar , the Hon'ble Supreme Court observed as under:
"The power to allow an amendment is undoubtedly wide and may, at any stage, be properly exercised in the interest of justice, the law of limitation notwithstanding, but the exercise of such far-reaching discretionary power is governed by judicial consideration and wider the discretion, greater ought to be the care and circumspection on the part of the Court."
21. In Ganesh Trading Co. v. Maoji Ram (supra), the Hon'ble Supreme Court observed that where amendment is found to be necessary for promoting the ends of justice and not for defeating it, the application should be allowed. Similar view had been reiterated in B.K.N. Pillai v. P. Pillai and Anr. .
22. In Estrella Rubber v. Dass Estate (P.) Ltd. , the Supreme Court held that mere delay in making the amendment application is not enough to reject the application unless a new case is made out, or serious prejudice is shown to have been caused to the other side so as to take away any accrued right.
23. Similarly, in Siddalingamma and Anr. v. Mamtha Shenoy , the Hon'ble Supreme Court held that the Doctrine of Relation Back applies in case of amendment for the reason that the amendment generally governs the pleadings as amended pleadings would be deemed to have been filed originally as such and the evidence has to be read and appreciated in the light of the averments made in the amendment petition. Similar view has been reiterated In Raghu Thilak D. John v. S. Rayappan and Ors. .
24. In Jayanti Roy v. Dass Estate (P.) Ltd. , the Apex Court held that if there is no material inconsistency between the original averments and those proposed by the amendment, application for amendment should be allowed. However, the application should be moved at a proper stage. Application filed at unduly delayed stage should normally be rejected.
25. In Sampat Kumar v. Ayyakannu and Anr. , the Hon'ble Supreme Court held that any amendment seeking to introduce a cause of action, which arose during pendency of the suit, may be permitted in order to avoid multiplicity of suit. But, It should not change the basic structure of the suit. More so, Court should be liberal to allow amendment at the time of pre-trial of a suit but must be strict and examine the issue of delay where the application for amendment Is filed at a much belated stage of commencement of the trial.
26. In Nagappa v. Gurudayal Singh and Ors. , the Hon'ble Supreme Court held that amendment can be allowed even at an appellate stage in a case where law of limitation is not involved and the facts and circumstances of the particular case so demand, in order to do justice with the parties. The case involved therein had been under the provisions of Sections 166, 168 and 169 of the Motor Vehicles Act, 1988 and as the Act does not provide for any limitation for filing the claim petition, the amendment at appellate stage was allowed.
27. In Hanumant Singh Rawat v. Rajputana Automobiles, Ajmer (1993) 1 WLC 625, Rajasthan High Court summarised the legal position as under:
(i) That the amendment of pleadings should ordinarily be allowed by the Court, once it is satisfied that the amendment is necessary for the just and proper decision of the controversy between the parties;
(ii) The amendment of the pleadings should not ordinarily be declined only on the ground of delay on the part of the appellant in seeking leave of the Court to amend the pleadings, if the opposite party can suitably be compensated by means of costs etc. Even inconsistent pleas can be allowed to be raised by amendment in the pleadings;
(iii) However, amendment of pleadings cannot be allowed so as to completely alter the nature of the suit;
(iv) Amendment of the pleadings must not be allowed when amendment is not necessary for the purpose of determining the real questions in the controversy between the parties;
(v) The amendment should be refused where the plaintiffs suit would be wholly displaced by the proposed amendment;
(vi) Where the effect of the amendment would be to take away from the defendant a legal right which has accrued to him by lapse of time or by operation of some law;
(vii) The amendment in the pleadings should not be allowed where the Court finds that amendment sought for has not been made in good faith or suffers from lack of bona fides; and
(viii) Ordinarily, the amendment must not be allowed where a party wants to withdraw from the admission made by it in the original pleadings.
In M/s. Modi Spinning and Weaving Mills Co. Ltd. (supra), the Hon'ble Supreme Court specifically held that amendment in the pleadings is not permitted if it seeks to "displace the plaintiff completely from the admissions made by the defendant in the written statement."
28. In view of the above it is well-settled that amendment can be allowed at any stage but there must be some reasonable explanation by the person concerned who approached this Court by way to amend the pleadings with a specific case supported by the document that the amendment sought or the relief sought by way of amendment was not in the knowledge when the suit was filed. It is also well-settled now that if the amendment does not change the nature of the suit and does not affect the rights of the parties, it can be allowed at any point of time. But in the present case admittedly, the suit was filed in the year 1982 and the petitioner was dispossessed from the land in dispute in the year 1983 but the amendment application was filed in the year 1996, which is highly belated and the trial court has wrongly allowed the application which clearly prejudiced the case of the defendant and allowing the application will unnecessarily harass the respondents, therefore, the revisional court has considered the submissions that the application filed on behalf of the petitioner is highly belated after a lapse of 13 years and as such it cannot be allowed.
29. In view of the foresaid fact, I find no merit in the writ petition. The writ petition lacks of merits and is hereby dismissed.
30. There shall be no order as to costs.