Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7963 of 2018
Petitioner :- Basant Kumar
Respondent :- Abdul Kareem And Another
Counsel for Petitioner :- Satya Prakash Rathor,Ashish Pandey
Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioner and have perused the record.
Considering the nature of the order that is being passed as also the ground on which it is being passed, this Court does not consider it necessary to issue notice to the opposite parties 1 and 2 and therefore this petition is being decided finally at this stage itself.
The petitioner had filed Civil Appeal No. 47 of 2017 in the Court of District Judge, Mahoba against the judgment and decree dated 08.05.2017 passed by the Civil Judge (Sr. Div.), Mahoba in Original Suit No. 137 of 2015. In the said civil appeal, an application was moved for amendment in the memorandum of appeal. This application was numbered 46 Ka.
The court below by the order impugned dated 04.10.2018 rejected the application seeking amendment in the memorandum of appeal by placing reliance on the provisions of Order 6, Rule 17 C.P.C. and Order 41, Rule 3 C.P.C. The court below also entered into the merits of the ground sought to be incorporated by the proposed amendment. The court below observed that the ground sought to be raised by the proposed amendment was not sustainable on the basis of the pleadings of the parties and that such amendment was not permissible in view of the proviso to Order 6, Rule 17 of the Code of Civil Procedure.
The learned counsel for the petitioner has assailed the order dated 04.10.2018 on the ground that provisions in the Code of Civil Procedure governing amendment of pleadings are not applicable to an amendment in a memorandum of an appeal because appeal is not a pleading and therefore the proviso to Rule 17 of Order 6 C.P.C. would not be applicable to an amendment sought in the memorandum of appeal. It has been urged that amendment in a memorandum of appeal is to be considered in exercise of inherent power vested in a Court by virtue of section 151 of the Code of Civil Procedure read with Order 41 Rule 2 C.P.C. It has been submitted that it is well settled that at the stage of considering whether amendment is to be allowed or not, the merits of the plea is not to be addressed therefore the court below was not justified in addressing the merits of the ground proposed to be added.
I find substance in the submissions of the learned counsel for the petitioner that at the stage of consideration of amendment, the merit of the plea sought to be added by way of amendment is not to be considered. (vide (2006) 4 SCC 385 : Rajesh Kumar Aggarwal v. K.K. Modi; (2007) 6 SCC 167; Andhra Bank v. A.B.N. Amro NV Bank; and (2008) 3 SCC 717 : Usha Devi v. Rizwan Ahmad).
That apart, the provisions governing amendment of pleadings are not applicable to an amendment in the memorandum of appeal. Order 6 Rule 17 C.P.C. relates to amendment in a pleading. Pleadings are defined by Order 6 Rule 1 of the Code as plaint or written statement. By no stretch of imagination, the principles governing amendment in the pleadings are applicable to amendment in a memorandum of appeal. An amendment in a memorandum of appeal is either to correct any error in the memorandum or to add a ground. Such amendment is sought and is considered in exercise of inherent powers vested in a civil court, by virtue of Section 151 C.P.C., to pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, read with Order 41 Rule 2 C.P.C. Ordinarily, at the time of allowing or rejecting amendment, particularly, when it relates to taking a plea, the merits of the plea is not to be examined because that is to be considered after evidence is led. Likewise, when a ground is proposed to be added in a memorandum of appeal, the appropriate stage to consider the merits of the ground is at the time of final hearing. Therefore, although there is no such mandate of law that in no case the merit of the ground proposed to be added is not to be considered at the time of consideration of amendment in memo of appeal but it would be appropriate for the court to address the ground on merits at the time of hearing the appeal and not at the time when it is proposed to be added in the memorandum of appeal.
Further, the provisions of Order 41 Rule 3 of the Code of Civil Procedure do not control or limit the inherent powers vested in a civil court to allow amendment in a memorandum of appeal under Section 151 of the Code of Civil Procedure read with Order 41 Rule 2 C.P.C. Order 41 Rule 3 relates to a case where the memorandum of an appeal is not drawn up in the manner prescribed by the Rules and therefore the court can either return the memorandum for the purpose of being amended or reject the same. Order 41 Rule 3 C.P.C. does not take away the power vested in a Court to allow amendments in the memorandum of appeal to add additional ground which is governed by the provisions of Section 151 C.P.C. read with Order 41 Rule 2 C.P.C.
For the reasons recorded above, the order passed by the District Judge, Mahoba, dated 04.10.2018, is based on incorrect application of the statutory provisions and is therefore liable to be set aside. The petition is accordingly allowed. The order dated 04.10.2018 is set aside. The District Judge, Mahoba shall consider the application 46 ka afresh, in accordance with law, after giving opportunity of hearing to both sides.
Order Date :- 31.10.2018 Sunil Kr Tiwari