JUDGMENT Tarun Agarwala, J.
1. Heard Sri R.S. Singh, the learned Counsel for the petitioner and Sri R.S. Chauhan, the learned Counsel for respondent Nos. 1 to 4. Sri R.S. Chauhan submitted that he does not propose to file any counter-affidavit and that the writ petition may be disposed of at the admission stage itself.
2. The petitioner is a plaintiff and had filed a suit for the cancellation of the sale deed dated 29.6.1998. This date "29.6.1998" has been specifically alleged in paragraph 8 of the plaint. However, in paragraphs 15 and 16, the date of the sale deed was mentioned as "29.8.1998". In the prayer clause, the same date "29.8.1998" had been mentioned. The said suit was dismissed by a judgment dated 7.9.2004, against which, the petitioner filed a regular appeal before the appellate court. During the pendency of the appeal the petitioner realised that there was a clerical error in paragraph 15 as well as in the prayer clause of the plaint and therefore, moved an application for an amendment of the plaint, under Order VI, Rule 17 of the C.P.C. The said application was rejected by the appellate court by an order dated 6.3.2006, on the ground that the entire basis of the suit would change and that no amendment could be allowed in the appellate proceedings, in view of the proviso to Order VI, Rule 17 of the C.P.C. incorporated pursuant to the Amendment Act No. 22 of 2002 which came into effect from 24.5.2002. Aggrieved, the petitioner has filed the present writ petition.
3. I have perused the plaint and have found that the petitioner had made a specific averment in para 8 of the plaint with regard to the sale deed dated 29.6.1998. However, the date of the sale deed dated 29.6.1998 was mentioned as 29.8.1998, in paragraph Nos. 15 and 16 of the plaint as well as in the prayer clause. I have also perused the judgment of the trial court and find that even though issue Nos. 1 and 2 were framed with regard to the cancellation of the sale deed dated 29.8.1998, the discussion and the findings given by the trial court on the said issues was with regard to the sale deed dated 29.6.2008.
4. In view of the aforesaid, the real controversy before the court below was with regard to the cancellation of the sale deed dated 29.6.1998 and not with regard to the cancellation of the sale deed dated 29.8.1998. Further, I find, that the defendants have nowhere alleged that there were two sale deeds in question. Consequently, in the opinion of the Court, there appears to be a typographical error in paragraph Nos. 15 and 16 of the plaint as well as in the prayer clause of the plaint. The court below committed an error in holding that the entire basis of the suit would be changed if the amendment is carried out.
5. In the opinion of the Court, the amendment sought was only clerical in nature and that the real question for determining the issue and the controversy was with regard to the cancellation of the sale deed dated 29.6.1998 and not the sale deed dated 29.8.1998. Consequently, the amendment will not change the nature of the suit or the controversy involved in the suit.
6. The finding of the trial court that no such amendment could be allowed in the appeal and that two after the commencement of the trial in view of the Amendment Act No. 22 of 2002 is also misconceived. As per the Amendment Act No. 22 of 2002, the provisions of Order VI, Rule 17, as amended, is quoted hereinunder:
17. Amendment of Order VI.--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:
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.
7. In Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. 2006 (2) AWC 1886, the Supreme Court in paragraphs 16, 17, 18 and 19 held:
16. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should 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 for which amendment is sought before the commencement of the trial.
17. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
18. Order VI, Rule 17, consists of two parts is discretionary (may) and leave it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.
19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. 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 subserve 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.
8. From the perusal of the aforesaid, it is clear, that all the amendments that are necessary for determining the real question in controversy between the parties should be allowed. Further the proviso to Order VI, Rule 17 of the C.P.C. cannot place any impediment in allowing the amendment application if it was otherwise liable to be allowed. The amendment cannot be refused only on the ground that the amendment application was filed after the commencement of the trial.
9. In the opinion of the Court, the amendment sought was necessary for determining the real controversy involved between the parties. The amendment application can to be allowed at any stage of the proceedings, even after the commencement of the trial if the amendment was necessary for determining the real question in controversy between the parties.
10. In view of the aforesaid, the judgment relied by the learned Counsel for the respondents, in the cases of Girraj Singh v. Brijesh Goswami and Ors. 2006 (63) ALR 887; Prabhu Niwas alias Kapil Deo and Anr. v. Laxmi Narain and Ors. 2006 (63) ALR 23 : 2006 (3) AWC 2534 and Imtiaz Ahmad v. Additional District Judge, Fatehpur and Ors. are clearly distinguishable and are not applicable to the facts and circumstances of the case.
11. In view of the aforesaid, the impugned order cannot be sustained and is set aside. The writ petition is allowed. The amendment application filed by the plaintiff is also allowed subject to the payment of cost of Rs. 5,000 which shall be deposited by the petitioner/plaintiff before the appellate court within one month from today. The amount so deposited shall" be paid to the defendant. The necessary amendment shall be carried out by the petitioner before the appellate court within the aforesaid period, as stated above.