Heard learned counsel for petitioner and perused the record.
None present on behalf of respondent Nos. 3, 4 & 6.
Facts in brief of the present case are that the petitioner-palintiff filed a suit for permanent injunction on 10.01.2011, registered as Regular Suit No. 16 of 2011 before IVth Additional Civil Judge (Jr. Div.), Gonda. During the pendency of the said matter as the defendant to the suit made certain constructions on the land in dispute, so plaintiff moved an an application for amendment (Paper No. KA 2/19) to which objection filed by defendant and by order dated 08.08.2011, respondent No. 2/VIIth Additional Civil Judge (Jr. Div.), Gonda, allowed the same.
Aggrieved by the said order order, defendant-respondent filed a revision No. 284 of 2011 (Bahadur and others Vs. Mahajan Singh), allowed vide order dated 09.05.2012 passed by 1st Additional District Judge, Gonda, under challenge in the present writ petition.
Learned counsel for petitioner submits that the impugned order dated 09.05.2012 passed by respondent No. 1 is illegal, arbitary, unjust and against the law as respondent No. 2 has observed in the order dated 08.08.2011 that a Commission was done in the presence of parties on 21.05.2011 and in the commission report Ga-2/25 and Site Plan Ga-2/26, there is mentioning of newly constructed room and other portion over the land in dispute and from bare perussal of the above commission report and site plan it is clear that during the pendency of Regualr Suit, the construction over the land in dispute was made, as such the application for amendment filed by the petitioner is liable to be allowed.
He further submits that in the impugned order dated 09.05.2012, the revisional court has given observation that the fact of construction, raised during the proceeding of regular suit, was mentioned in the affidavit only filed in support of application for amendment but not in the application and also when the cause of action arose and what is constructed have not been mentioned in the application, due to which plaintiff/petitioner can make all the land of opposite parties no. 3 to 6 as part of unauthorized land.
It is also submitted by learned counsel for petitioner that the provisions of the Order VI Rule 17 CPC, the court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, which may be necessary for the purpose of determining the real question in controversy between the parties.
I have heard learned counsel for the petitioner and gone through the record.
In order to decide the said controversy , it is necessary to state the following facts in brief.
Order 6 Rule 17 CPC as exists before 1999 is quoted as under:-
"Order 6 Rule 17:
"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."
The aforesaid provision was omitted by the Civil Procedure Code (Amendment) Act, 1999 Section 16 of the Amendment Act reads as follows:
"16. Amendment of Order 6- in the First Schedule, in Order 6-
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(iii) Rules 17 and 18 shall be omitted."
The provision as it exists now after the Civil Procedure Code (Amendment) Act, 2002 Order 6 Rule 17 "17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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."
It is seen that before the amendment of Order 6 Rule 17 by Act 46 of 1999, the Court has taken a very wide view of the power to amend the pleadings including even the plaint as could be seen from L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., AIR 1957 SC 357: 1957 SCR 438, SCR at 450 and Gurdial Singh V. Raj Kumar Aneja, (2002) 2 SCC 445: AIR 2002 SC 1003.
By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.
Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 14 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is the proviso which falls for consideration."
It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC ( Amendment ) Act 2002.
Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the 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 amendment of 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. In order to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by the Civil Procedure Code ( Amendment) Act , 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and manifests the absence of due diligence on the part of the appellants dis-entitling them to relief.
In the case of Vidyabai and others Vs. Padmalatha and another(2009) 2 SCC 409 wherein Hon'ble the Apex Court has held as under:-
" By reason of the Civil Procedure Code ( Amendment) Act,2002 ( Act 22 of 2002) Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:-
" Provided that no application for amendment shall be allowed after the trail 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."
It is couched in a mandatory form . The Court's jurisdiction to allow such an application is taken away unless the condition precedent therefore are satisfied viz, it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein , is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plain."
Further in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhawan Das (d) By L.Rs.2008 (3) ARC 911 wherein Hon'ble Supreme Court has held as under:-
"In so far as the principles which govern the question of granting or disallowing amendments under Order VI, Rule 17 C.P.C, ( as it stood at the relevant time) are concerned, these are also well settled. Order VI , Rule 17 C.P.C. Postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgaonda Shidgonda Patil and others, AIR 1957 SC 363, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.( Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166: 1990 SCFBRC 134)".
Hon'ble the Apex Court in the case of vide judgment dated 22.03.2006, passed in Appeal (Civil) No. 5350-5361 of 2002 (Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors), while considering the scope of amendment, held as under (relevant paragraph):-
" In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court 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.
While considering whether an application"
In nutshell , the provisions of amendment of pleading provided under Order 6 Rule 17 CPC as exits today can be summarized and crystallized as under:-
" Order 6 Rule 17 of the Code deals with amendment of pleadings . By Amendment Act 46 of 1999, this provision was deleted . It has against been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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 proviso, to some extent, curtails absolute discretion to allow amendment to any stage. Now , if application is filed after commencement of trial, it has to be shown that in spite of the due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous application which are filed to delay the trial. There is no illegality in the provision."
Thus, object of Order 6, Rule 17 primarily is that if because of certain facts not being pleaded or because of deficiencies in the pleadings, the question involved between the parties cannot be finally determined and unless it is finally determined, there is likelihood of multiplicity of proceedings. Order 6, Rule 17 empowers the Court to permit such amendments which are necessary for final determination of the issues in dispute or real point in dispute between the parties. Expression "new case" has been the subject matter of discussion and that expression has been defined to mean a new claim based on altogether new facts and new ideas. New case does not mean and include in itself where there is an additional approach to the same facts already in the pleadings as an alternative approach. So, in the context of the amendment application, an additional approach to same facts cannot amount to making out a new case.
The principles established by judicial decisions in respect of amendment of plaint are :
(i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit;
(ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible;
(iii) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment;
(iv) In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs; and
(v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is out-weighed by the special circumstances of the case.
Amendment can be refused in the following circumstances :
(i) where it is not necessary for the purpose of determining the real question in controversy between the parties;
(ii) where the plaintiff's suit would be wholly displaced by the proposed amendment;
(iii) where the effect of amendment would take away from the defendant a legal right which has accrued to him by lapse of time;
(iv) where the amendment would introduce totally different, new and inconsistent case and the application is made at a late stage to the proceeding; and
(v) where the application for amendment is not made in good faith.
Accordingly, in brief, it can be held that all amendments should be allowed which satisfy the following conditions :
(a) of not working injustice to the other side; and
(b) of being necessary for the purpose of determining the real question in controversy between the parties. They should be refused only when the other party cannot be placed in the same position as if the pleading had originally been correct but the amendment would cause him an injury which cannot be compensated by costs.
However, under the cover of seeking amendment it is not open to any party to substitute a new cause of action or to change the nature of the suit or to substitute the subject-matter of the suit except when the Court thinks it just and necessary. (See Ganeshi Rai v. Ist Additional District Judge A.I.R. 1992 All.25) and no amendment of plaint can be allowed if because of lapse of time some right has vested in the other party and the effect of allowing amendment would tantamount to the taking away of that right. Allowing such amendment cannot be compensated for by costs.
Thus, keeping in view the abovesaid facts as well as the facts that no reason has been given by the revisional court while passing the order dated 09.05.2012 whereby allowing the revision and setting aside the order dated 08.08.2011 passed by trial court/VIIth Additional Civil Judge (Jr. Div.), Gonda by which the petitioner's application for amendment has been allowed. the said order is liable to be set aside.
For the foregoing reasons, the writ petition is allowed, the impugned order dated 09.05.2012 passed by revisional court/1st Addition District Judge, Gonda is set aside and the petitioner's application for amendment (application No. Ka2/19) is allowed, petitioner is permitted to make necessary amendment in the memo of the plaint accordingly and the trial court is directed to proceed in accordance with law.
Order Date :- 27.1.2016 Ravi/