Rajasthan High Court - Jaipur
Sita Devi W/O. Chittar vs Jagdish Verma S/O. Ramchandra ... on 24 July, 2023
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2023:RJ-JP:15070]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 16321/2019
1. Sita Devi W/o. Chittar, Aged About 47 Years
2. Arjun S/o. Chittar, aged About 23 Years,
3. Norti Devi D/o. Chittar, aged About 25 Years,
4. Sunita Devi D/o. Chittar, Aged About 21 Years,
5. Laxmi Devi D/o. Chittar, Aged About 9 Years,
(No.5 Minor, Through Her Natural Guardian Mother, Sita
Devi W/o. Chittar)
Resident Of Raigron Ka Mohalla, Mehla, Post Mehla, Tehsil
Maujmaabad, District Jaipur (Raj.)
----Petitioners
Versus
Jagdish Verma S/o. Ramchandra, Aged About 36 Years, Resident
Of Village Himmatpura, Post Mundiyaramsar, Tehsil And District
Jaipur (Raj.).
----Respondent
For Petitioner(s) : Mr. Gaurav Gupta
For Respondent(s) :
HON'BLE MR. JUSTICE GANESH RAM MEENA
Order
Reserved on ::: July 12, 2023
Pronounced on ::: July 24, 2023
1. By filing the present writ petition the
petitioners/ plaintiffs have assailed the order
dated 28.08.2019 passed by the Court of learned
Addl. District Sessions Judge, Dudu, District Jaipur
(for short 'the trial court') in Civil Suit No.
38/2017, whereby the application filed by them on
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08.08.2018 under Order 6 Rule 17 read with Section
151 CPC was dismissed.
2. The facts in brief as borne out from the
pleadings and arguments are that the petitioners/
plaintiffs filed a civil suit on 16.10.2017 for
cancellation of the registered sale deed dated
18.06.2015 and for permanent injunction stating that
there is a land bearing Khasra No.814, situated in
village Mehla, Tehsil Mauujmabad, District Jaipur.
It was prayed that the registered sale deed dated
18.06.2015 be cancelled in respect of the property
in question and the respondent/ defendant may be
restrained permanently not to alienate, mortgage
etc. the property in question.
3. After recording of the evidence, the matter
was posted for arguments on 03.05.2018 and further
on two other dates.
4. On 08.08.2018 the petitioners/ plaintiffs
filed an application under Order 6 Rule 17 read with
Section 151 CPC for seeking amendment in the plaint,
to add pleadings and the prayer for recovery of
Rs.79 lakhs. The trial court dismissed the
application vide impugned order dated 28.08.2019.
5. Counsel appearing for the petitioners
/plaintiffs submitted that by an inadvertent mistake the petitioners/ plaintiffs have failed to make an alternative prayer for recovery of the amount, and therefore, they want to make an amendment in the plaint incorporating the pleadings in regard to the recovery of amount of Rs.79 lakhs and also to the (Downloaded on 11/11/2023 at 06:32:36 PM) [2023:RJ-JP:15070] (3 of 13) [CW-16321/2019] amend the prayer clause for decree of the suit for recovery of Rs.79 lakhs.
Counsel further submits that the trial court dismissed the application filed by the petitioners/ plaintiffs without making proper consideration on the provisions of law in regard to the powers of the trial court for allowing amendment in the plaint. Counsel submits that the amendment sought by the petitioners/ plaintiffs in no manner will change the nature of the suit and also will not prejudice the case of the respondent/defendant.
In support of the submissions, counsel appearing for the petitioners /plaintiffs has placed reliance upon following judgments:-
1. State of Bihar & Ors. Vs. Modern Tent House & Anr., reported in (2017) 8 SCC 567;
2. Surender Kumar Sharma Vs. Makhan singh, reported in (2009) 10 SCC 626; and
3. Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors., reported in (2012) 11 SCC 341.
6. Heard and considered the submissions made by the counsel appearing for the petitioners/ plaintiffs and also perused the material available on the record.
7. Order 6 Rule 17 CPC provides for provisions in regard to seeking amendment in the pleadings.
Order 6 Rule 17 CPC is quoted as under:-
"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:(Downloaded on 11/11/2023 at 06:32:36 PM)
[2023:RJ-JP:15070] (4 of 13) [CW-16321/2019] 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."
8. In the present case the petitioners/ plaintiffs filed a suit for cancellation of the sale deed. After order of ex-parte proceedings against the respondent/ defendant on 16.11.2017, the petitioners/ plaintiffs produced their evidence on 02.04.2018 and on the very same day their evidence was closed and the matter was posted for arguments on 03.05.2018. After 03.05.2018, the matter was thereafter posted for arguments on two other dates and thereafter on 08.08.2018 the petitioners/ plaintiffs filed the application under Order 6 Rule 17 read with Section 151 CPC for seeking amendment in the plaint for incorporating the pleadings and prayers in regard to recovery of Rs.79 lakhs.
9. The counsel appearing for the petitioners/ plaintiffs has cited certain judgments, as mentioned above, that application for seeking amendment in the plaint cannot be dismissed merely on the ground of delay if the Court finds that by allowing the application the real controversy between the parties may be resolved and can allow the application for amendment in the plaint.
10. Recently, the Hon'ble Supreme Court in Civil Appeal No.5909 of 2022 (Arising out of SLP (C) No.22443 of 2019), Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and (Downloaded on 11/11/2023 at 06:32:36 PM) [2023:RJ-JP:15070] (5 of 13) [CW-16321/2019] Ors., decided on 01.09.2022, after considering the various earlier judgments, observed as under:-
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).(Downloaded on 11/11/2023 at 06:32:36 PM)
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(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
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(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed."
11. Considering the facts of the case in view of the conclusions given by the Hon'ble Supreme Court, as stated above, it is not the case of the petitioners/ plaintiffs that the facts and the prayer which they want to incorporate by way of amendment, were not in their knowledge. After posting of the suit for final arguments on three dates, they filed the application for seeking (Downloaded on 11/11/2023 at 06:32:36 PM) [2023:RJ-JP:15070] (8 of 13) [CW-16321/2019] amendment in the plaint, which cannot be said to be justified.
12. In Civil Appeal No.3576 of 2008 (Arising out of SLP (C) No. 21014 of 2004), Rajkumar Guruwara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Ors., decided on 14.05.2008, the Hon'ble Supreme Court considered the issue of seeking amendment in the plaint where the application for seeking amendment was filed after closing of the evidence and during the course of arguments in that case the learned trial court allowed the application for amendment on payment of cost of Rs.300/- and the High Court in a civil revision under Article 227 of the Constitution of India set aside the same and dismissed the application for amendment. The Hon'ble Supreme Court finally dismissed the appeal against the order of the High Court observing that the action of the plaintiff at the stage of argument cannot be permitted and no amendment can be permitted which defeats the law of limitation. Para Nos. 5 and 7 of the aforesaid judgment are as under:-
"(5) Originally, the appellant/plaintiff filed the suit for declaration of his exclusive right to do mining operation in the suit property. However, after impleadment of M/s S.K. Sarwagi and Company as second defendant (first respondent herein) after closing of the evidence and during the course of argument, the plaintiff filed an application under Order VI Rule 17 read with 151 CPC for amendment of the (Downloaded on 11/11/2023 at 06:32:36 PM) [2023:RJ-JP:15070] (9 of 13) [CW-16321/2019] plaint praying for possession over the plaint schedule mentioned property from the defendants and for grant of damages of Rs.
5.00 lacs in favour of the plaintiff for their mining operations without consent of the plaintiff in the plaint schedule property. Though the learned Additional District Judge allowed the application for amendment on payment of cost of Rs. 300/- the High Court in a civil revision filed under Article 227 of the Constitution of India set aside the same and dismissed the application for amendment which is the subject matter in this appeal. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under:-
"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."
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real (Downloaded on 11/11/2023 at 06:32:36 PM) [2023:RJ-JP:15070] (10 of 13) [CW-16321/2019] questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.
(7) The other relevant fact to be noted is the plea taken in the written statement filed by D-1 wherein, it is specifically stated that the suit schedule lands are classified as poramboke lands in survey and (Downloaded on 11/11/2023 at 06:32:36 PM) [2023:RJ-JP:15070] (11 of 13) [CW-16321/2019] settlement operations and that the Government issued G.O. Ms. No. 459 (Industries and Commerce) Department, dated 28.11.1998 leasing out an extent of 18.35 hectares of land covered under Survey Nos. 106 and 107 of Ayitham Valasa Village in favour of A.P. Mineral Development Corporation for mining purpose for twenty years. It is further averred that the Government in G.O. Ms. No. 102 (Industries and Commerce) Department, dated 20.2.2001 issued Orders transferring the mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. Pvt. Ltd. for the unexpired period of lease, i.e. upto 1.6.2019. As rightly observed by the High Court, it is explicit from the written statement filed by D-1 that the plaintiff was made known of the fact that the Government issued order transferring mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. P. Ltd. (D-2) and the leased lands are in possession and enjoyment of M/s Sarwagi & Co. P. Ltd. As rightly pointed out by the learned counsel for the contesting respondent, in spite of the plaintiff being put in knowledge of the act of the person in possession of the suit property did not chose to implead the said M/s Sarwagi & Co. P. Ltd. (D-2) which came on record on its own application as D-2 in the suit. It is clear that in spite of reply notice and specific plea taken in the written statement of D-1, the plaintiff did not chose to take steps to get the plaint amended suitably and instead allowed the suit to go on and examined the witnesses on his behalf and cross-examined the witnesses produced by the defendants. Only during the stage of (Downloaded on 11/11/2023 at 06:32:36 PM) [2023:RJ-JP:15070] (12 of 13) [CW-16321/2019] arguments, the plaintiff came up with an application under Order VI Rule 17 seeking amendment of the pleadings. We have already explained the implication of proviso to Rule
17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of Government Orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument can not be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the (Downloaded on 11/11/2023 at 06:32:36 PM) [2023:RJ-JP:15070] (13 of 13) [CW-16321/2019] order dated 10.3.2004 of the Additional District Judge."
13. The suit is for cancellation of the sale deed. The amendments being sought by the petitioners are also not of such a nature that same are required for proper and effective adjudication of the dispute raised.
14. In view of the discussion made above, this Court finds that the learned trial court has not committed any error in dismissing the application filed by the petitioners/ plaintiffs for seeking amendment in the plaint. One cannot be allowed to make use of the provisions of law at such a belated stage. Therefore, no interference is warranted under writ jurisdiction.
15. Hence, the writ petition is dismissed.
16. Since the main petition has been dismissed, the stay application and pending application/s, if any, also stand dismissed.
(GANESH RAM MEENA),J Sharma NK-Dy. Registrar (Downloaded on 11/11/2023 at 06:32:36 PM) Powered by TCPDF (www.tcpdf.org)