Gauhati High Court
Shri Yumnam Ibobi Singh And Ors. vs Shri Yumnam Yaima Singh And Ors. on 28 August, 1992
Equivalent citations: AIR1993GAU42, AIR 1993 GAUHATI 42, (1992) 2 GAU LR 406
Author: S.N. Phukan
Bench: S.N. Phukan
ORDER S.N. Phukan, J.
1. This revision-petition has been filed under Section 115 read with Section 151 of C.P.C. against the order of the Additional District Judge No. II, Manipur dated 27-2-86, passed in Judl. Misc. Case No. 14 of 1986 arising out of the Original Suit No. 40/81/4/ 82. The present petition has been filed by the defendants against the above order by which the learned trial Court rejected the prayer of the defendants therein to amend the written statement.
2. It is not disputed that the suit land originally belonged to Rupo Singh of Yumnam alias Imnam clan. According to the plaintiffs, Rupo Singh died leaving behind three sons namely, (1) Thambou, (2) Angouba and (3) Gulamjat. Thambou died leaving behind two sons late Angahal and late Yaimabi and both the sons died leaving behind sons and daughters. Late Angouba died leaving behind two sons namely, late Ibohal and Yaima, who is the plaintiff No. 1. Late Ibohal died leaving behind late Ibechaobi Devi, who was impleaded as defendant No. 9 in the suit and after death, legal heirs were substituted as defendants 10 and 11. Late Thambou died leaving behind two sons namely, Angahal and Yaimabi as stated above and they also died. The children of late Angahal have been impleaded as defendant Nos. 1 to 6. Late Yaimabi left behind his widow and son and they have been impleaded as defendants Nos. 7 and 8.
3. Plaintiffs Nos. 1 and 2 i.e. the sons of late Angouba and late Gulamjat respectively filed the present suit for partition of the land of late Rupo Singh.
4. The suit was contested mainly by the successors-in-interest of late Thambou. According to defendant, Rupo Singh died leaving only one son late Thambou and he gifted the major portion of the suit land to his son Angahal and some portion to his other son Yaimabi and also sold part of the land to his son Angahal. It is not necessary to state the alleged gift and sale in detail as it has been brought out by the trial Court in the impugned order.
5. In the suit filed by the plaintiffs 1 and 2, the evidence on the side of both the parties was closed except recalling of one witness on the prayer of the defendants and the case was ready for argument. At that stage, the present petition for amendment of the written statement was filed. The defendants wanted to insert the following paragraph as paragraph 10(A) in the written statement namely: "Assuming that the suit land is the heritable property as alleged in the plaint, the defendants, after discovery of the Katcha deed dated 15-6-54 recently and, after meeting of Soibam Ningol Ibeton Devi who is the grandmother of defendants 10 and 11 and older members residing in the locality of the defendants found that the plaintiff No. 1, Yumnam Yaima Singh and his late father took Rs. 300/- from late Angahal Singh as the price of selling the share of Angou Singh in the suit land by executing an unregistered deed dated 15-6-54 and in consequence thereof late Yumnam Thombou Singh executed a registered sale deed dated 26-6-54 on which the plaintiff No. 1 was a witness and identifier of the vendor, and that the plaintiff No. 2 Thambalngou Singh's mother are remarried a person residing at Terakhongsangbi before 1920 and she took the plaintiff No. 2 to the house of her second husband and lived with the plaintiff No. 2 till her death and plaintiff No. 2 has still been residing at Terakhongsangbi since then, and the plaintiff No. 2 took money from late Thambou Singh as the price of the share of late Yumnam Gulamjat Singh out of the suit land sometime before 1942 and the defendants could not ascertain the actual amount taken away." The defendants, also prayed for amendment of paragraph 18 of the written statement by inserting some words.
6. Heard Mr. T. Bhubon Singh, learned counsel for the petitioners and Mr. A. Nilamani Singh for the opposite parties. Both the learned counsel have placed before this Court various decisions of the Apex Court as well as this Court.
7. Order 6, Rule 17, C.P.C. empowers the Court to allow the party to alter or amend his pleading at any stage of the proceedings in such manner and such terms as may be just for the purpose of determining real question in controversy between the parties. Thus, it is clear that legislature has given wide powers to the Court to allow any party to amend his pleading at any stage but such amendment shall be for the purpose of determining the real question in controversy between the parties. Before I deal with the facts of the present case, let me extract the relevant portion of the decisions placed before this Court by the learned counsel for both the parties.
8. Mr. Nandakumar Singh has placed reliance of the decision of the Supreme Court in Firm Sriniwas Ram v. Mahabir Prasad, AIR 1951 SC 177 in which it was held that the plaintiff may reply upon different rights alternatively and there is nothing in the C.P.C. to prevent a party from making two be more inconsistent se[s of allegations and claiming relief thereunder in the alternative. This decision has been cited in support of the amendment as according to the learned counsel, the defendants can also make alternative plea in the written statement which was being done by the proposed amendment.
9. Next decision on which the learned counsel has placed reliance in L. J. Leach and Co. Ltd. v. Jardine Skineer and Co., AIR 1957 SC 357 : (1957 All LJ 794). In that case, it was held that it is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if it is required in the interest of justice.
10. Another decision of the Apex Court on which the learned counsel has placed reliance is in Ishwardas v. State of M.P., AIR 1979 SC 551. In that case, it was held that there is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea and all that is necessary is that the appellate court should observe the well known principles subject to which amendments of pleadings are usually granted. According to Lordships, one of the circumstances which should be taken into consideration before amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court.
11. The learned counsel for the petitioners have placed reliance in the decision of a Division Bench of this Court in U. Sap Singh v. State of Assam (1985) 2 GLR 14. It was held that amendments may be allowed which satisfy the conditions-- (1) that it does not work injustice to the other side; and (2) that it is necessary for the purpose of determining the real question in controversy between the parties. The above two conditions were laid down in the following decisions of the Supreme Court in AIR 1957 SC 363, AIR 1967 SC 357 (sic) and AIR 1969 SC 1267. The Division Bench has also quoted the relevant paragraphs of the judgments of the Apex Court in Ganesh Trading Co. v. Muji Ram, AIR 1978 SC 484 wherein it was held that the main rules of pleadings that the provisions for amendment of the pleadings subject to such terms has to cost and giving of all parties concerned necessary opportunity to meet the exact situations resulting from amendments, are intended from promoting justice and not to defeat them. The Division also held that amendments can be allowed at any stage of the proceedings and the Court has large and wide power in permitting the amendment for promoting the ends of justice and not to defeat them. Relying on the decision of the Apex Court in Haridas Aildas v. Godrej Rustom Kermani, AIR 1983 SC 319, it was also held that the Court should be extremely liberal in granting amendment of pleadings unless it is manifest that allowing amendment would cause serious injustice or irreparable loss to the other side.
12. The learned counsel has placed reliance in the decision of the learned single Judge of this Court in Pokarmal Agarwalla v. Madhoram Thakursidas (1983) 1 GLR 194 wherein it was held that in the present day trial system, the trend set by the Supreme Court is to settle all differences of the contestants in a suit and the wholesome provisions of Order 6, Rule 17 in the context of the Indian litigants have been benignantly construed and extended to meet the requirements of the litigant public. The Court also held that the object of Order 6, Rule 17 is to do justice and not to shut out justice merely on technicalities of the pleadings and the power to amend written statement even at the appellate stage can be allowed if the delay in taking up the point is explained and the Appellate Court cannot refuse to permit amendment of written statement to raise a vital issue or plea merely because the necessary material is not before it. According to the learned single Judge, the pith and substance of the decision is that the procedural law is meant to uphold the cause of justice and not to short-circuit and bring an end of justice.
13. Now let us extract the relevant portions of the decisions placed before this Court by Mr. A. Nilamanj Singh, learned counsel for the opposite parties.
14. In A. K. Gupta and sons v. Damudar Valley Corporation, AIR 1967 SC 96, it was held in the matter of allowing amendment of pleading the general rule 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 the new cause of action is barred and where however the amendment does constitute the addition of a hew cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the period of limitation.
15. In Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 it was held that 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 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.
16. In Reserve Bank of India v. Ramkrishna Govind Morey, AIR 1976 SC 830 : (1976 Lab IC 575), the plaintiff in that case did not depend on what the defendant might say in the written statement and if what he proposed to introduce in the plaint by way of amendment was relevant to his case, there is no apparent reason why this was left out when the plaint was filed and on this fact it was held that the order of the trial Court rejecting the plaintiffs applications for amendment of the plaint was not arbitrary. It was further held that whether the trial Court should not have exercised its discretion differently is not a question of law justifying interference by the High Court in second appeal.
17. In Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co., AIR 1977 SC 680, it was held that the defendants cannot be allowed to change completely the case made in the written statement by amending it and substitute an entirely different and new case, In Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484, the plaintiff seeks to alter the cause of action itself and to introduce indirectly by an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place what was originally there. It was held that the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapses of time. According to Mr. A. Nilamani Singh, the same principle would also apply in the case of prayer for amendment of the written statement. In Union of India v. Surjit, AIR 1979 SC 1701, the Court refused the defendants to raise plea of illegality of the agreement on the ground that such plea was not taken in written statement and not having raised any issue and further held that terms of such plea to be raised several years after the institution of the suit would greatly prejudice the plaintiffs. According to Mr. A. Nilamani Singh, the suit was filed in the year 1982 and evidence was adduced by both the parties and at this late stage, if the new plea is allowed to be taken by the defendants, it would greatly prejudice to the other side.
18. In Vineet Kumar v. Mangai Sain Wadhera, AIR 1985 SC 817, it was held that normally amendment is not allowed if it changes the cause of action and it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case but amounts to no more than adding to the facts already on the records, the amendment would be allowed even after the statutory period of limitation.
19. Mr. A. Nilamani Singh has placed reliance in the decision of the learned Judicial Commissioner, Manipur in E. Mangi Singh v. N. Tombi Singh, AIR 1967 Manipur 28. In that case, the defendant prayed for amendment of the written statement and wanted to set up a new plea of part performance under Section 53A of the Transfer of Property Act. The learned Court held that the amendment will cause prejudice to the other side and it was only pretext of setting up a new plea and, accordingly, prayer for amendment was rejected.
20. This Court in Jamunaram Knar v. S. Pandey, 1977 ALR 206 held that an amendment should not be allowed for mere asking by a party. An application for frivolous amendment should be disallowed. Similarly, amendment which introduce a new case, amendment prayed for inordinately late stage will ordinarily be disallowed but amendments to avoid multiciplicity proceedings may be allowed. According to the learned single Judge of this Court, the amendment shall be allowed only for the purpose of determining the real question in controversy between parties.
21. In Babul Kumar Das v. Krishna Das Saha, (1982) 1 GLR NOC 40, the learned single Judge of this Court held, inter alia, that if an amendment is prayed for putting up entirely a new case or to change the character of the pleadings, the same should be rejected.
22. In Sri Chunilal Talukdar v. Smt. Kumudini Paul, (1988) 1 GLJ 523, this Court held that by exercising the powers under Order 6 Rule 17 of the C.P.C. the Court may allow any party to alter or amend his pleading at any stage for the purpose of determining the real question in controversy between the parties but in that ease at the time of argument, the defendants prayed for amendment of written statement to the effect that rent was deposited in the Court and on this fact this Court held that if such an amendment is allowed, the real controversy between the parties would change completely and it should not be allowed at the late stage when evidence of the parties has been closed.
23. In view of the above decisions, I may now summarised the powers of the Court to order allowing amendment of pleadings under Order 6, Rule 17, C.P.C. This provision of law is very wide and the Court can allow amendment of pleadings even at the appellate stage for the purpose of determining the real question in controversy between the parties but the Court shall reject the prayer for amendment if a fresh suit on the proposed amendment is barred by limitation but this will not completely bar the power of the Court if such amendment is required in the interest of justice. If there is any delay in making the prayer for amendment of pleadings either in the trial Court or at the appellate Court the delay must be explained to the satisfaction of the Court and in case of such prayer before the appellate Court it must also be explained as to why such prayer could not be made before the trial Court. Further, two contentions must be satisfied before allowing the prayer for amendment of pleadings namely that it will not cause injustice to the other parties and that it is necessary for the purpose of determining the real question in controversy between the parties. Normally the Court should be liberal in granting amendment, unless, of course, the Court is of the opinion that such amendment would cause serious injustice and irreparable loss to the other side. As held by the Apex Court as well as this Court, the provision of Order 6, Rule 17 has been included to do justice and not to shut out justice merely on technicality of pleadings. However, as a general rule, by allowing amendment of pleadings a party should not be allowed to set up a new case or new cause of action and that parties cannot be allowed to change completely the case made out in the pleadings by amending it subsequently and substitute an entirely a different new case and further frivolous prayer for amendment should be disallowed.
24. Keeping in view the above position of law, let me examine the case in hand. The present suit was filed in the year 1982 and the written statement was also filed in February, 1982. Thereafter, the defendant's prayer to amend the written statement on three occasions was allowed and the present prayer of amendment of written statement is a fourth one. From the list of dates supplied it appears that the learned trial Court was quite liberal with the defendants inasmuch as the written statement was allowed to be amended on three occasions and even after the close of the evidence and fixing date for argument, the defendants were allowed to produce two documents and to examine three more witnesses and re-examined D. W. No. 5, The defendants was allowed to cross-examine the plaintiff No. 1 i.e. P. W. No. 1. The defendants have now again applied for recalling the defendant No. 1 i.e. D.W. No. 2 and production of some documents.
25. The plaintiffs' case is a pure case of partition and in the plaint it has been stated that late Rupo left three sons and the contesting defendants denied that late Rupo Singh left behind three sons and according to defendants he left behind only one son namely, late Thambou. Now by the proposed amendment the defendants want to set up a new case namely, that the suit land is a heritable property as alleged in the plaint. Mr. T. Nandakumar Singh has urged that in the proposed amendment the defendants want to set up an alternative case which may be allowed. According to the learned counsel, all the decisions placed before this Court by Mr. A. Nilamani Singh were in respect of completely new case and it will not apply to an alternative plea of new case. I am unable to accept the contention of the learned counsel inasmuch as, if this amendment is allowed, it will cause prejudice to the plaintiffs inasmuch as, the plaintiff thereafter shall have to recall all witnesses to rebut the alternative new case proposed to be set up by the defendants.
26. According to Mr. T. Nandakumar Singh, the proposed amendment was made as the matter came to the notice of the defendants subsequently. But by the proposed amendment the defendants want to set up completely a new case by assuming that late Rupo left behind three sons which was not in the original case. Therefore, the contention of the learned counsel has no force. The explanation of delay in filing the present petition is not acceptable to this Court.
27. Mr. A. Nilamani Singh has rightly pointed out that the application for amendment is not supported by any affidavit and there is also no separate affidavit. On the other hand, drawing attention to some other applications filed subsequently which is supported by an affidavit, Mr. T. Nandakumar Singh has urged that the subsequent application is sufficient to cover the points raised in the petition filed for amendment of the written statement. I am unable to accept the contention of the learned counsel for the defendants/petitioners and I accept the submission made by Mr. A. Nilamani Singh.
28. Mr. A. Nilamani Singh tried to impress this Court regarding the powers of the revisional Court. In my opinion, rejecting or allowing the petition for amendment of pleadings is a jurisdictional matter and as such, the Court can interfere by exercising powers under Section 115 C-P.C.
29. For what has been stated above, I hold that the present petition has no merit and accordingly, it is dismissed. The rule is discharged. I left the parties to bear their own costs. The interim order stands vacated. Office to send down the case records immediately.