Himachal Pradesh High Court
Om Prakash And Others vs Krishan Dass on 15 March, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 196 of 2017 .
Reserved on: 07.03.2018 Decided on: 15.03.2018 Om Prakash and others ...Petitioners.
Versus
Krishan Dass
Coram
r to ...Respondent.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the petitioners: Mr. M.L. Sharma, Advocate.
For the respondent: Mr. Aditya Thakur, Advocate.
Vivek Singh Thakur, Judge.
Present petition has been filed against dismissal of application preferred by defendantspetitioners under Order 6 Rule 17 of the Code of Civil Procedure (for short 'CPC') for amendment of written statement vide impugned order, dated 19th January, 2017, passed by learned Civil ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 2 Judge (Senior Division), Kasauli whereby amendment of words 'tin roof' has been declined to be replaced by the .
words 'cement roof' in the written statement mainly on the ground that there was no explanation that despite due diligence, defendantspetitioners could not plead the amendment sought after commencement of the trial, at earlier point of time.
2. to Plaintiffrespondent has filed a suit for permanent prohibitory injunction on 31st January, 2015, wherein he, besides other averments, has pleaded as under:
".......... The defendants have also threatened the plaintiff that they are going to construct a structure over the suit land for cremation of dead bodies and further to use a substantial portion of the suit land as a cremation ground. The defendants have also threatened that they will also put the suit land as burial ground for burying the dead animals. ........."
3. In reply to above quoted pleadings, defendants petitioners, in their written statement, dated 19th February, 2015, have responded as under:
"..... The plaintiff has deliberately, intentionally and knowing fully well has ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 3 concealed the true facts from the Hon'ble Court that more than 2530 years back the State of H.P. through Forest Department .
constructed a structure for cremation at the old cremation ground on government land comprised in Khasra No. 56 which is existing since then. The existing structure of cremation is having tin roof. The residents of village Chaywani Bhurat, Hert Kanaita, Siryara, Katal, Chaywani Kamthan etc. perform cremation at this place. Prior to the construction of the structure of cremation, local people of the above villages used to cremate the dead bodies from generation to generation. ......"
4. In response to the plea taken in written statement, plaintiffrespondent, in his replication, dated 19 th March, 2015, has pleaded as under:
"....The defendants taking undue advantage of his absence have constructed a pucca structure of cement concrete for cremation on the suit land during the pendency of the present suit somewhere in the third week of February, 2015 and thus encroached upon the suit land without any legal right, title or interest to do so. ...."
5. Plaintiffrespondent had also filed an application under Order 39 Rule 1 & 2 CPC for temporary injunction during pendency of the suit which was also decided on 26 th May, 2015.
::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 46. On the basis of pleadings of parties, issues were framed by the trial Court on 2nd July, 2015 and thereafter, .
case was listed for plaintiff's evidence on 27th August, 2015;
29th October, 2015; and 17th December, 2015. But, before leading the evidence, plaintiffrespondent preferred an application, dated 17th December, 2015, under Order 6 rule 17 CPC for amendment of plaint seeking permission to incorporate para 7(a) in the plaint and addition in paras 9, 11 and prayer clause for making a prayer to pass a decree of mandatory injunction in his favour and against the defendantspetitioners directing them to demolish and dismantle the pucca structure of cement concrete constructed for cremation by defendants on the suit land. In this application, in para 2, plaintiffrespondent had pleaded as under:
"2. That for the last about two years, the applicant has been residing at Pathankot in an 'Ashram' in the Sewa of his Guru Ji, and is an absentee person from his village ChayawaniBhugrat. Thus, during the pendency of the above titled civil suit, somewhere in the third week of February, 2015, the defendants taking undue ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 5 advantage of the absence of the applicant have constructed a pucca structure of cement concrete for cremation on the suit .
land intentionally and deliberately so as to cause loss, damage and legal injury to the applicant thereby giving rise to file the present application so as to seek the following amendments in his plaint."
7. In reply, dated 14th January, 2016, to this application, defendantspetitioners had averred that r to proposed amendment would change the whole complexion of the suit resulting into change in nature of the suit on the basis of new and inconsistent plea taken by the plaintiff and with regard to cement concrete structure for cremation on the suit land, it was responded as under:
"...... It is denied hat in his absence during third week of February, 2015, the defendants constructed a pacca cement concrete for cremation on the suit land as alleged. ....."
It was also contended that as the applicant had filed replication stating all facts, proposed to be incorporated in plaint, there is no need to amend the plaint, as alleged.
8. The aforesaid application preferred by plaintiff respondent under Order 6 Rule 17 CPC was dismissed as withdrawn on 17th March, 2016.
::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 69. Thereafter, vide application, dated 7th May, 2016, preferred under Order 14 Rule 5 CPC, plaintiffrespondent .
had prayed for framing of additional issue with regard to plea of defendantspetitioners taken in written statement that the existing structure of cremation was having tin roof.
10. After filing of this application, defendants petitioners had preferred an application, dated 10 th July, 2016, under Order 6 Rule 17 CPC, seeking amendment in written statement by replacing the words 'tin roof' with the words 'cement roof'.
11. Reply to application under Order 14 Rule 5 CPC, preferred by plaintiffrespondent, was filed on 5 th October, 2016, whereas plaintiffrespondent had filed reply to application under Order 6 Rule 17 CPC, dated 10 th July, 2016, on 1st October, 2016.
12. After considering the pleadings and arguments of parties, application preferred by defendantspetitioners, under Order 6 Rule 17 CPC has been dismissed by the trial Court vide impugned order. Hence, the present petition.
::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 713. Learned counsel for defendantspetitioners, relying upon pronouncement of the apex Court in Sampath .
Kumar versus Ayyakannu and another, reported in (2002) 7 Supreme Court Cases 559, has contended that words 'tin roof' in the written statement are result of typographical mistake, which could not be corrected at the r to time of filing of written statement due to oversight; the same was noticed at the time of preparing reply to the application preferred by the plaintiffrespondent for framing additional issues and immediately thereafter, application for amendment of written statement to replace the words 'tin roof' with 'cement roof' has been preferred by defendants petitioners. It is also contended that there is no lack of due diligence on the part of defendantspetitioners and as the trial is at initial stage and plaintiff's evidence is yet to be led, no serious injustice or irreparable loss is going to be caused to the plaintiffrespondent in case the amendment, as prayed, is allowed. It is further submitted that the genuine amendment sought by the defendantspetitioners ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 8 should not be disallowed on technical grounds and the Court is empowered to allow the amendment in pleadings at any .
stage.
14. Relying upon pronouncement of the apex Court in case titled as Baldev Singh and others versus Manohar Singh and another, reported in (2006) 6 r to Supreme Court Cases 498, learned counsel for defendantspetitioners has contended that under Order 6 Rule 17 CPC, the Court has wide power and unfettered discretion to allow amendment of pleadings, at any stage, in such a manner and on such terms, as it appears to the Court just and proper, as may be necessary for the purpose of determining the real question in controversy between the parties and, thus, he has canvassed allowing the amendment, as proposed by the defendantspetitioners.
15. Learned counsel for defendantspetitioners has also referred to judgment, dated 29th May, 2017, passed by a coordinate Bench of this Court in CMPMO No. 346 of 2016, titled as The Kangra Central Cooperative Bank versus ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 9 Prabha Devi & others, wherein plaintiff was permitted to replace the word 'vehicle' with 'agriculture' on application of .
the plaintiff filed for correction of clerical error discovered during the plaintiff's evidence.
16. Learned counsel for plaintiffrespondent, relying upon judgment of the apex Court in case titled as Vidyabai r to & Ors. versus Padmalatha & Anr., reported in AIR 2000 Supreme Court 1433, has argued that proviso to Order 6 Rule 17 CPC is in a mandatory form and the Court's jurisdiction to allow an application for amendment is taken away unless the conditions precedent therefor are satisfied and the amendment cannot be allowed unless the Court arrives at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. It has further been contended that in present case, written statement was filed on 19 th February, 2015, replication to the same was filed on 19 th March, 2015 wherein specific pleadings with respect to cement structure were incorporated by the plaintiff ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 10 respondent and similar averments were also made in pleadings of rejoinder to the application under Order 39 .
Rules 1 & 2 CPC, which was decided on 26 th May, 2015, after hearing the parties and at that time also, pleadings of parties were referred during the course of addressing arguments by respective counsel for parties. Further, averments on this issue were also proposed to be incorporated in plaint vide application, dated 17 th December, 2015, filed under Order 6 Rule 17 CPC, which was also contested by defendantspetitioners by filing reply and the said application was withdrawn on 17th March, 2016 and, therefore, defendantspetitioners have taken false plea that words 'tin roof' are result of clerical mistake noticed after May, 2016. It has further been contended that after framing of issues on 2nd July, 2015, trial has commenced and now, case is at the stage of plaintiff's evidence, thus, proviso to Order 6 Rule 17 CPC has come into play and as such, the Court can allow the amendment at this stage only if defendantspetitioners are able to show that despite due ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 11 diligence, the amendment could not be sought before commencement of the trial.
.
17. Ratio of law laid down in the pronouncements of the apex Court, cited by the parties, is not in dispute.
However, as observed by the apex Court in Sampath Kumar's case (supra) that no straight jacket formula can r to be laid down, pretrial amendments are allowed more liberally than those which are sought to be made after commencement of the trial and in latter case, question of prejudice to the opposite party may arise, which shall have to be answered by reference to the facts and circumstances of each individual case and mere delay cannot be made a ground for refusing a prayer for amendment.
18. In present case, it is undisputed that application has been filed after commencement of the trial and, thus, defendantspetitioners have to establish that despite due diligence, the amendment, proposed to be carried out, could not be raised before commencement of the trial. Written statement was filed on 19th February, 2015 with a plea of ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 12 existence of structure with tin roof, which was duly responded in the replication, dated 19th March, 2015 that .
during pendency of the suit, in February, 2015, a concrete structure has been raised on the spot. On the basis of these pleadings, an application under Order 39 Rules 1 & 2 CPC was also adjudicated and decided on 26th May, 2015. Even thereafter, existence of cement structure, allegedly to have been raised during pendency of suit, was also pleaded in application under Order 6 Rule 17 CPC preferred in December, 2015 by the plaintiffrespondent and reply thereto was also filed on 14th January, 2016. In this application also, construction of cement concrete structure for cremation was pleaded by the plaintiffrespondent, which was denied by the defendantspetitioners, however, at that time also, no application for amendment was filed by the defendantspetitioners, but, has been filed only after the application for framing of additional issues preferred by the plaintiffrespondent. It is also noticeable that application for framing of additional issues was filed in May, 2016 ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 13 whereas application for amendment by the defendants petitioners has been filed in July, 2016.
.
19. In aforesaid circumstances, the plea taken by the defendantspetitioners, that the alleged clerical mistake typing out 'tin roof' instead of 'cement roof' came in the notice of the defendantspetitioners only at the time of preparing reply to the application of plaintiffrespondent filed for framing additional issues, does not apepar to be true.
20. Therefore, defendantspetitioners have failed to establish that despite due diligence, they could not raise the issue before commencement of the trial.
21. True it is that for ends of justice, Court can allow amendment even after commencement of the trial in spite of delay in seeking such amendment and the application for amendment may not be dismissed merely on the ground of delay. However, the ends of justice are not to be seen with reference to only one party, but, keeping in view interest of all parties going to be affected. In present case, it is not ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 14 merely delay in filing the application for which the amendment cannot be permitted, but the amendment .
sought will also cause serious prejudice to the plaintiff respondent as replacement of the words 'tin roof' with the 'cement roof', in present case, would have wide impact on the stand of parties and relevant pleadings related thereto.
22. Though, it is canvassed on behalf of defendants petitioners that in Kangra Central Cooperatives Bank's case (supra), the facts were identical to present case, however, in my opinion, it is not so. In the said case, the Bank had preferred a suit for recovery of 'vehicle loan' advanced to the defendant whereas in the pleadings, it was mentioned as 'agricultural loan' despite the fact that the documents placed on record with the pleadings were clearly reflecting that it was 'vehicle loan'. Further, it was not contention of the defendant therein that he had not taken the 'vehicle loan'. Whereas, in present case, it is case of the plaintiffrespondent since beginning that defendants petitioners are trying to raise structures for cremation on ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 15 the joint land in order to affect the interest of the plaintiff respondent adversely and the defendantspetitioners, in .
their written statement, pleaded that the tin roof structure, constructed by the Forest Department on the government land, was already existing.
23. Also, it is specific case of plaintiff that during pendency of the suit, cement concrete structure has been raised on the suit land and the said plea was brought on record by the plaintiffrespondent for the first time on 19 th March, 2015 and thereafter, application under Order 39 Rules 1 & 2 CPC was decided on 26 th May, 2015, issues were framed on 2nd July, 2015. An application for amendment was filed by the plaintiffrespondent in December, 2015 and the same was withdrawn on 17th March, 2016. Thereafter, an application for framing additional issues was filed on 7 th May, 2016. In his pleadings, plaintiffrespondent has disputed the existence of cement concrete structure before filing the suit, but the defendantspetitioners had never raised plea of clerical mistake mentioning cement roof as tin ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP 16 roof in the written statement, ever before filing the application for amendment of written statement on 10 th .
July, 2016. Therefore, for distinct and distinguishable facts and circumstances, case law referred to by the defendants petitioners is not applicable in present case.
24. In view of aforesaid discussion, I am of the considered view that the trial Court has not committed any error in dismissing the amendment application filed by defendantspetitioners. There is no material illegality, irregularity, infirmity or error of jurisdiction exercising the powers by the trial Court in terms of the impugned order.
25. Viewed thus, there is no merit in the present petition, hence, the same is dismissed. No order as to costs.
(Vivek Singh Thakur) Judge March 15, 2018 ( rajni ) ::: Downloaded on - 16/03/2018 23:25:23 :::HCHP