Allahabad High Court
Kuldeep Kumar And Another vs Sri Navin Kumar And Another on 30 August, 2017
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- MATTERS UNDER ARTICLE 227 No. - 4974 of 2017 Petitioner :- Kuldeep Kumar And Another Respondent :- Sri Navin Kumar And Another Counsel for Petitioner :- Avanish Mishra Hon'ble Mrs. Sunita Agarwal,J.
The orders dated 14.07.2017 and 18.05.2017 passed by the District Judge, Meerut in revision Nil of 2017 (Kuldeep Kumar & another Vs. Nain Kumar & another) and Additional Civil Judge (S.D.), Court No.8, Meerut in original suit no.683 of 2012 are under challenge.
A perusal of the record indicates that the aforesaid suit was filed by the parent/natural guardian of the child namely Hemang Dev in the year 2012. The contention therein is that child was never adopted by the defendants who are brother and sister-in-law of plaintiff no.1. The registration of the adoption deed was a result of fraud committed upon the plaintiffs. The cause of action for filing the said suit arose on 23.05.2012 when the defendants had refused to cancel the said deed by mutual consent.
The said suit was contested by the defendants by filing a written statement wherein it was admitted that Hemang Dev, for whose adoption deed in question was registered is real son of the plaintiffs. However, it was submitted that the adoption deed was executed after adopting due procedure and performance of rituals for adoption. The registered deed of adoption could not be cancelled by the Court. In the said suit, evidence of the parties have been recorded.
At this stage, an application 55-Ka dated 27.02.2017 under Order 6 Rule 17 of the Code of Civil Procedure was filed by the plaintiffs for amendment of paragraph no.13 of the plaint and the plaint relief in paragraph no.16. The original paragraph no.13 of the plaint and the plaint relief in paragraph no.16-A are as under:-
¼13½ ;g fd oknhx.k dks izfroknhx.k dh ckr lqudj cgqr vk'p;Z nq%[k gqvk oknhx.k us vius firk o cM+s HkkbZ f'konRr dqekj ls Hkh xksnukesa dh ckr dh rks mUgksaus xksnukesa dh iathd`r fd;k tkuk Lohdkj fd;kA izfroknhx.k us xksnukesa dh QksVks dkih Hkh oknhx.k dks fn[kkbZ rc oknhx.k us esjB lc&jftLVªkj dk;kZy; vkdj fnukad 18-4-2012 dks mDr QthZ /kks[kk/kMh ij vk/kkfjr xksnukesa dh lR; izfrfyfi izkIr dh rc rFkkdfFkr xksnukesa dks Ik<+dj izFke ckj izfroknhx.k dh lkft'k o /kks[kk/kM+h dk Kku gqvkA oknhx.k us izfroknhx.k ls mijksDr rFkkdfFkr xksnukek@fnukafdr vDVwcj 2010 dks fujLr djkus dh ;kpuk dh ijUrq izfroknhx.k us xksnukes adks fujLr djkus ls Li"V :i ls badkj dj fn;k blfy;s oknhx.k etcwju ekuuh; U;k;ky; esa mDr okn ;ksftr djrs gSA ;g fd oknhx.k fuEu izfrdkj ikus dk izkFkhZ gS%& 16¼v½ ;g fd ekuuh; U;k;ky; dh ?kks"k.kkRed fMdzh cgd oknhx.k fo:) izfroknhx.k bl vk'k; ls tkjh dh tk;s fd rFkk&dfFkr xksnukek fnukafdr 01 vDVwcj 2010] bdjkjh oknhx.k cgd izfroknhx.k] ftldh jftLVjh fnukad 01-10-2010 dks ogh la[;k&4 ftYn la[;k 388 ds i`"B la[;k 159 ls 172 ij dzekad 432 ij gS] dks 'kwU; o fu"izHkkoh ?kksf"kr fd;k tkosA The proposed amendment in paragraph no.13 (13-A) and the plaint relief in paragraph no.2 of the amendment application are as under:-
13&v **;g fd nkSjku okn fnukad 01-12-2012 dks tcfd oknhx.k vius firk Jh vkseizdk'k dh chekjh dh voLFkk esa esjB esa oknh la0 1 ds cM+s HkkbZ f'konRr dqekj ds fuokl LFkku 'kkL+=h uxj] esjB esa ns[kus vk;s rks lk;a dky esa tcfd ogkW ij izfroknhx.k igys ls gh mifLFkr Fks rks izfroknhx.k cM+h pkykdh ls oknhx.k ds NksVs iq= gseax nso dks cgdk dj ys x;s ftlds lEcU/k esa oknhx.k us Fkkuk ukSpUnh esjB esa f'kdk;r dh rks Fkkuk ukSpUnh] esjB dh iqfyl us ikfjokfjd ekeyk crkrs gq;s rFkk eqdnek U;k;ky; esa yfEcr crkrs gq;s dksbZ Hkh dk;Zokgh djus ls bUdkj dj fn;kA rc ls izfroknhx.k oknhx.k ds iq= gseax nso dks voS/k :i ls vius ikl j[ks gq;s gSa ftls fd oknhx.k okil izkIr djus ds vf/kdkjh gSaA** ¼2½ ;g fd okn i= dh /kkjk 16 dh vafre iafDr ds i'pkr~ fuEu 'kCn vkSj c<+k;s tkosa%& **rFkk oknhx.k dks izfroknhx.k ls vius iq= gseax nso dks okil fnyk;k tkosA** A perusal of the original pleadings and proposed amendment would indicate that the plaintiff's case was that the defendants got the adoption deed executed by forgery and by the proposed amendment it was sought to be added that the plaintiff's younger son was brain-washed by the defendants. A complaint was made in the police station that the defendants are forcibly keeping their child with them. By way of amendment in the plaint relief the custody of minor child was sought by the plaintiffs. The trial court had allowed the amendment of plaint. The revision was rejected as not maintainable.
Challenging the orders of allowing amendment, the contention of learned counsel for the petitioner is that the suit for custody of a minor can only be maintained before the Family court under section 7(g) of the Family Courts Act, 1984. The Civil Court has no jurisdiction to grant relief sought by way of proposed amendment. Alternative submission is that the amendments are highly belated. The suit has proceeded to an advance stage i.e. at the stage of evidence. In view of the proviso to Order 6 Rule 17, no amendment could be allowed at the stage of evidence i.e. after the trial had commenced. Moreover, by way of amendment, the nature of the case and relief has been changed materially which was not permissible. The revisional court has erred in dismissing the revision on the ground of maintainability.
In the light of the dispute being raised by the plaintiffs and in view of the admitted fact that the plaintiffs are natural guardians of the child, the deed of adoption having been challenged before the civil court it cannot be said that the Civil Court has no jurisdiction to grant custody of child to natural guardian. The relief of custody of child prayed by natural guardian is a consequential relief to the declaration sought by them to declare the deed of adoption as null and void document. The family Court under the Family Courts Act' 1984 has no jurisdiction to declare the adoption deed as void document.
So far as the delay in moving amendment is concerned, as a general rule, all amendments sought are to be allowed which satisfy two conditions; (i) they are not working injustice to the other side; and (ii) are necessary for the purpose of determining the real question of controversy between the parties. Amendments of pleadings should be refused only where the other party cannot be placed in the same position as if the pleadings had been originally correct. In other words, permitting the amendment would be unjust and result in prejudice to the opposite party which cannot be compensated by costs or would deprive him of a right which accrued to him with the lapse of time. Otherwise, ordinarily the amendments of pleadings under Order 6 Rule 17 which are required for effective adjudication and to do justice between the parties and to avoid multiplicity of judicial proceeding shall be allowed. The object and purpose of Order 6 Rule 17 of the Code of Civil Procedure is to shorten the litigation and to settle the entire dispute in one proceeding to its logical end.
As to the stage of amendment, there is no hard and fast rule. Though the proviso to Order 6 Rule 17 added by way of Amendment act 22 of 2002 says that no amendment would be allowed after the trial had commenced. A clause has, however, been added to this preposition that in case, the court comes to the conclusion that inspite of due diligence, the issue could not be raised before the commencement of the trial it can allow amendment even at a later stage.
Order 6 Rule 17 comprises of two parts. The first part is discretionary (may) and gives discretion to the court to order amendment of pleadings. The second part, however, is imperative and is qualified by the word "shall" which enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The basic or cardinal test is the real controversy itself. The aforesaid preposition has been laid down by the Apex Court in the case of Rajesh Kumar Agarwal & others vs. K.K. Modi & others, 2006 (4) SCC 385 with the further observations that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. The Court should not go into the correctness or falsity of the case in the amendment. It should not record a finding on the merits of the amendment as the merits of the proposed amendments are not to be adjudged at the stage of allowing the prayer for amendment.
In another case of Baldev Singh Vs. Manohar Singh reported in 2006 (6) SCC 498, the effect of proviso to Order 6 Rule 17 of Code of Civil Procedure was considered and it has been held therein that the words "commencement of trial" as used in proviso to Order 6 Rule 17 must be understood in the limited sense as meaning the final hearing of the suit, examination of witness, filing of document, and addressing of argument. The amendment application cannot be rejected mechanically on the ground of delay.
In the light of the legal position discussed above, in the facts and circumstances of the instant case, considering the amendment of paragraph no.13 of the plaint, this Court finds that the averments therein are only explanatory in nature i.e. to state that the defendants had taken away the son of the plaintiffs after brain-washing him and other members of the family. The proposed amendment in the plaint relief is a prayer for consequential relief. The pleadings in this regard are already contained in the original pleadings/plaint. Evidences have been led by the parties and the defendants have an opportunity to file their additional written statement/objection to the amended pleadings and plaint relief. Merely because the suit has reached the stage of evidence, looking to the nature of amendment, the same could not have been rejected on the ground of delay in view of the proviso to Order 6 Rule 17 of the Code of Civil Procedure.
The discretion exercised by the trial court in allowing amendment could not be said to be an improper exercise of jurisdiction as it would not cause material injustice to the defendants. The plea of the defendants that a separate suit is required to be filed for custody of the child by natural guardian before the family court is misconceived in as much as the matter of adoption of a child or declaration of adoption deed as void document is beyond the jurisdiction of the family court under section 7 of the Family Courts Act' 1984. The relief of custody of child prayed therein would not be covered by clause (g) of the said section.
The ratio of the judgement of Apex Court in Vidyabai & others Vs. Padmalatha & another 2009 (2) SCC 409 is not applicable in the fact and circumstances of the instant case in as much as in the said case, amendment of written statement was refused on the ground that an entirely new case was sought to be made out. The defendants have failed to establish that they had no knowledge of the facts pleaded in the amendment and that they could not gather the material information necessary for drafting appropriate written statement. The trial court rejected the amendment application giving the aforesaid reason in addition to the fact that the amendment was sought at the stage of examination of the witnesses. Noticing the observation in paragraph no.43 of Salem Advocate Bar Association Vs. Union of India reported in 2005 (6) SCC 344, the Apex Court while setting aside the order of the High Court had observed that the High Court had not applied its mind on the jurisdictional issue i.e. as to whether the learned trial judge exceeded its jurisdiction in passing the order of rejection of amendment application.
The observations in paragraph no.43 of Saleem Adocate Bar Association (supra) read as under:-
"43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in s matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amendent Act, 1999, deleting Rule 17 from the Code..........."
Thus it can be seen that by the proviso to Order 6 Rule 17 of the Code of Civil Procedure the discretion of the Court has not been curtailed. Rather it confers unfettered discretion on the Court to allow the amendment of the pleadings at any stage of the proceeding for just, speedy and effective decision of the controversy.
Thus in the peculiar facts and circumstances of that case, the Apex Court has held that the interference made by the High court in the order of trial court for rejection of amendment application filed at an advance stage was unjustified.
The ratio of judgement of this Court in Civil Revision no.140 of 2013 (Smt. Roop Rani Awasthi Vs. Smt. Prem Kumari) is also not attracted in the fact and circumstances of the instant case.
For all the above noted reasons, this Court in exercise of its extraordinary jurisdiction under Article 227 of the Constitution of India is not inclined to interfere.
The present petition is dismissed being devoid of merits.
Order Date :- 30.8.2017 Himanshu