Heard learned counsel for the petitioners and learned counsel for the opposite parties.
Through this petition, the petitioners have challenged the order dated 26.3.2012 passed by the District Judge, Raebareli upholding the order of the Addl. Civil Judge (Senior Division), Raebareli dated 4.2.2012.
The facts in short are that on 24.8.2004, opposite party no.3 filed a suit for mandatory injunction against the petitioners for directing them to remove the construction illegally raised over the land in dispute and to deliver vacant possession to him. Written statement was filed for contesting the suit and allegations made in the suit were denied. During pendency of the suit, the petitioners made an application under Order VI Rule 17 read with Section 151 C.P.C. for amending the written statement. The said application was rejected by opposite party no.2. The petitioners feeling aggrieved with the aforesaid order, preferred a revision before the District Judge, which too was dismissed vide order dated 26.3.2012. Hence this petition.
Submission of learned counsel for the petitioners is that the amendment was clarificatory in nature and the same could not have been refused by the courts below. The map annexed by opposite party no.3 was not correct map and the petitioners have annexed correct map along with the written statement in which footpath of the main Lucknow-Sultanpur highway was shown and in case the said amendment is not allowed, then the vital piece of evidence in the form of footpath will not be taken into consideration. The amendment, which is sought to be made, is only for the just and proper decision of the case.
Learned counsel for the opposite parties, on the other hand, has submitted that about ten dates were fixed for arguments and the matter was got adjourned again and again and ultimately when the court finally fixed the date for argument, the said amendment was brought with a view to delay the proceedings. There is no need of allowing any such amendment as the disputed property has got nothing to do with the footpath over the Lucknow-Sultanpur highway.
I have heard learned counsel for the parties and perused the record.
The trial court after hearing the parties proceeded to reject the application for amending the written statement relying upon a judgment of this Court reported in 2002 (49) ALR page 607, Naresh Kumar Bajaj v. Punjab National Bank, wherein it was laid down that amendment should not be allowed at a belated stage when the case is fixed for final hearing.
The petitioners avoided for long to argue the matter and at least ten dates were taken by them and when the trial court finally asked the petitioners to argue the case, they moved an application for amending the written statement. In the written statement, they stated that paragraph-17A may be allowed to be added, which was clarificatory in nature. The trial court found that the said application was moved when further date was refused to be given and the petitioners were asked to argue the matter. The trial court rejected the application against which a revision was preferred.
The revisional court applied the test as to whether the amendment was necessary for just and proper decision of the case and whether the said facts were in the knowledge of the petitioners at the time of filing of the suit and thereafter.
The revisional court came to the conclusion that the said facts were in the knowledge of the petitioners and the amendment was not necessary for just and proper decision of the case as the disputed property has got nothing to do with footpath on the Lucknow-Sultanpur highway.
Learned counsel for the petitioners has placed reliance on the judgements rendered in the case of Surender Kumar Sharma v. Makhan Singh, [2009 (27) LCD 1483], Smt. Shahjahan v. District Judge, Faizabad and others, [2010 (28) LCD 582] and Between Hazari Lal and others and Brahma Nand, [2007 (66) ALR 518]. In all the aforesaid three cases, the proposition of law which has been laid down is that the court has to see that the amendment was necessary for just and proper decision of the case. I have perused the proposed amendment and I find that the same was moved with a view to prolong the hearing of the case. The said facts were in the knowledge of the petitioners right from the very beginning but they did not move any amendment application at any point of time.
An amendment was brought on 1.7.2002 amending Order VI Rule 17 wherein a proviso was added providing therein 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.
In view of the rider imposed in the proviso, case of the petitioners for amending the written statement cannot be accepted as the said fact was very much in the knowledge of the petitioners from the very beginning and the petitioners have failed to establish that in spite of due diligence, they could not raise the matter before commencement of trial. The trial court has virtually recorded a finding that hearing is going on and at the eleventh hour, the amendment application has been moved, which goes to indicate that it is a dilatory tactics adopted by the petitioners. Learned counsel for the opposite parties has placed reliance upon the judgment rendered in the case of Ajendraprasadji N. Pande and another v. Swami Keshavprakeshdasji N. and others, 2007 (7) AWC 6704 (SC), wherein it has been held that amendment at highly belated stage shall not be allowed. Relevant para-54 of the aforesaid judgement is reproduced hereunder:-
"We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex.95. No facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Exh. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondent-original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed."
In the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, (2009) 10 SCC 84, the Apex Court in paragraphs 63 & 64 has held as under:-
"On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
This Court in the case of Shree Ram Gupta v. Shafiquer Rahman & others, Civil Revision No.482 of 2009, held as under:-
"In the present case the evidence of both the parties have been closed and the suit was fixed for final hearing and, therefore, the trial had commenced. No reason has been given that inspite of the due diligence the applicant could not have raised the plea taken in the amendment application in the earlier written statement. In the circumstances, the petitioner is not entitled for the benefit of the proviso to Order 6 Rule 17"
The petitioners were in the knowledge of the aforesaid fact and amendment sought for is not necessary for just and proper decision of the case. The disputed property is situated on the northern side whereas the statement has been made that the land cannot be identified unless the amendment is allowed. The said argument is wholly misconceived. There is no dispute in regard to the land on the southern side. On the northern side boundaries are intact and as such, the trial court as well as the revisional court committed no illegality in rejecting the amendment application as well as the revision.
The petition is devoid of merit. It is accordingly dismissed.
May 30th, 2012 RBS/-