1. This writ petition is directed against the order dated 27.09.2004 passed by the Additional Civil Judge (Junior Division), whereby he has rejected the amendment application moved by the petitioner/appellant under Order VI-Rule17 CPC and the order dated 27 September 2007 passed by the Revisional Court, dismissing the revision.
2. Briefly stated the facts are; the petitioner instituted a suit for permanent injunction in the Court of Civil Judge (Junior Division)-II, Etawah. The petitioner/plaintiff's case in the Suit is that the plaintiff Sri Satya Dev-Shakuntala Devi Educational Trust is a registered Trust and one Sri Rajendra Kumar Sharma, who has joined the suit in the capacity of the Managing Trustee, manages the affairs of the Trust. The defendant/respondent, who is the tenant in the Trust property, had stopped the payment of the rent from April 1995 and when he was asked to vacate the premises he started illegal construction on the land of the Trust. The respondent/defendant filed his written statement and contested the suit on the ground that a sale deed was executed in favour of wife of defendant/respondent no. 3 regarding the property, in which he is in possession.
3. The plaintiff/petitioner filed an application under Order VI Rule 17 CPC for amendment of the pleadings. It was pleaded in the amendment application that the defendant has filed an original copy of the sale deed said to be executed on 13 September 1976 by Satya Dev, on 23.11.2001 in the Trial Court. It is stated that the said sale deed was not a registered document and the plaintiff had also verified from the office of the Sub-Registrar. The enquiry revealed that the alleged sale deed dated 13 September 1976 was not a registered document, therefore, the sale deed has no evidentiary value in the eyes of law. The respondent no. 3 filed his objections to the amendment application. By the impugned order the Trial Court has rejected the amendment application of the petitioner and his revision also came to be dismissed.
4. I have heard learned Counsel for the parties.
5. Learned Counsel for the petitioner submits that no cogent reason has been given by the Trial Court for rejecting the amendment application. There was no delay in filing the amendment application as the issue was yet to be framed when the amendment application was moved.
6. Learned Counsel for the petitioner further submits that the view taken by both the courts below in rejecting the amendment was on the ground of delay. The view taken by them is erroneous and factually incorrect. The Court below has failed to consider that the respondent no. 3 has filed the document in support of his claim on 13.11.2001 alongwith the sale deed. The petitioner came to know about the said sale deed when it was filed in the court and he moved the amendment application on 05 August 2004 i.e. within three years. Therefore, the period of limitation has not expired as it is within three years of the date of knowledge. He further submits that it is a well settled law that the amendment of pleadings can be made at any stage of proceeding if it is necessary for the purposes of determining the real question in controversy between the parties.
7. Learned Counsel for the petitioner has placed reliance on the judgement of the Supreme Court in the case of Sampat Kumar v. Ayya Kannu and another, 2002(10) SBR 298, wherein it has been held that a suit for prohibitory injunction can be converted in the suit in declaration of title and recovery of possession at belated stage even then the amendment was allowed on payment of some cost.
8. I have heard learned Counsel for the parties and perused the record.
9. The petitioner has instituted the suit for permanent injunction restraining them from interfering in her possession in respect of the permanent injunction to restrain respondent no. 3 from raising the construction with regard to the property in suit on the ground that he was a tenant of the Trust property.
10. In his written statement the respondent no. 3 contested the case on the ground that a sale deed was executed in favour of his wife (the defendant / respondent no. 3 herein) regarding the property and he is in possession by virtue of the said sale deed. The respondent no. 3 filed the original copy of sale deed on 13.11.2001. The plaintiff/petitioner herein moved an application on 05 August 2004 within three years from the date of the knowledge seeking a declaration that the said unregistered sale deed is a void document. A copy of the amendment application dated 05 August 2004 is on the record as annexure-3 to the writ petition. The said application was rejected on 25.09.2004 on the ground that the sale deed was in favour of the wife of respondent no. 3 Ganga Devi but she is not party in the suit. Thereafter the petitioner/ plaintiff moved a fresh application on 30.04.2005 alongwith an impleadment application to implead Ganga Devi as one of the defendants in the suit.
11. The Trial Court has rejected her application primarily on the ground that it was filed after much delay and on the said cause of action a separate suit and the amendment application is against the Order I Rule 3 of the Cope of Civil Procedure, 1908.
12. The Revisional Court took the view that the sale deed was filed by the defendant on 13.11.2001 but the amendment application has been filed on 30 April 2005, which was beyond the limitation of the suit.
13. As regards the finding of the Trial Court that the amendment was filed belatedly and was also against the provisions of Order I Rule 3 of CPC is not correct. For the sake of convenience the Order I Rule 3 of CPC is extracted herein below;
"3. Who may be joined as defendants.---All persons may be joined in one suit as defendants where---
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise."
14. At the time of filing of the suit the case of the plaintiff was that the disputed property is a trust property and the defendant was tenant over the said property. During the pendency of the suit the defendant filed an original sale deed, dated 13.09.1976, on 13.11.2001 in respect of the suit property and it was stated that the said sale deed was in favour of the defendant's wife.
15. The stand of the plaintiff was that the said sale deed is unregistered and the plaintiff came to know about the said document when it was filed in the court, therefore, they moved an application for amendment as well as impleadment of Ganga Devi in whose favour the alleged sale deed had been executed.
16. In view of the said facts it cannot be said that Ganga Devi was a necessary party at the time of filing of the suit. Thus the Trial Court has misdirected itself by relying on Order I Rule 3 CPC. The Revisional Court has also erroneously held that the amendment was filed belatedly and the amendment was beyond three years of the limitation. The said finding is factually incorrect.
17. The sale deed was brought on the record on 13.11.2001 and the amendment was filed on 05 August 2004. The plaintiff has explained that they tried to verify and enquire from the office of the Registrar then he came to know that the said sale deed has not been registered.
18. It is a trite law that an amendment can be allowed at any stage of the proceedings, however in 2002 by Act No. 2 of 2002 a proviso has been inserted, which provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of the due diligence the party could not have raised the matter before the commencement of trial.
19. In the present case it is stated that no issue has been framed in the suit nor any evidence has been adduced by the parties. The said fact has not been disputed by the respondent.
20. Moreover, the said proviso has been considered by the Supreme Court in the case of Baldev Singh and others v. Manohar Singh and another, (2006) 6 SCC 498 in the following words;
"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings."
21. In the Surender Kumar Sharma v. Makhan Singh (2009), 10 SCC 626 the Supreme Court held thus;
"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment."
22. The Supreme Court in the case of Ravajeetu Builders and Developers v. Narayanswamy and sons and others, (2009) 10 SCC 84 has culled out the following factors to be taken into consideration while dealing with the applications for amendments;
"39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice (see Ganga Bai v. Vijay Kumar1 and Arundhati Mishra v. Ram Charitra Pandey2)
63. On critically analyzing 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 non exhaustive.""
23. As regards the belated amendment is concerned the said issue is also no more res integra. The Supreme Court in a long line of decisions has already held that a belated amendment can also be considered subject to the certain conditions. In J. Samuel and others v. Gattu Mahesh and others, (2012) 2 SCC 300;
"23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6 Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. [Vide Aniglase Yohannan v. Ramlatha3, Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N4, Chander Kanta Bansal v. Rajinder Singh Anand5, Rajkumar Gurawara v. S.K. Sarwagi and Co. (P) Ltd.6, Vidyabai v. Padmalatha7, and Man Kaur v. Hartar Singh Sangha8.]"
24.Bearing the aforesaid principle in the mind, the reasons mentioned by the trial court and the revisional court rejecting the amendment application on the ground of the delay and the limitation is unsustainable. Accordingly, both the orders dated 06.11.2006 and 27.09.2007 are set aside. The matter is remitted to the Trial Court to consider the amendment application afresh in accordance with law.
25.Thus, the writ petition is allowed.
26.No order as to costs.
Order Date :- 9.4.2014 Hasnain/DS/-
Hon'ble Pradeep Kumar Singh Baghel,J.
The writ petition is allowed.
For order, see my order of the date passed on the separate sheets (seven pages).
Order Date :- 9.4.2014 Husnain/DS/-