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DEVENDRA MOHAN AND OTHERS versus STATE OF U.P.AND OTHERS

High Court of Judicature at Allahabad

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Devendra Mohan And Others v. State Of U.P.AND Others - WRIT - C No. 3134 of 2004 [2004] RD-AH 48 (29 January 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 3134 OF 2004

Devendra Mohan & ors. ---------- Petitioners

Versus.

State of U.P. & ors. ---------- Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Arun Tandon, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed challenging the order dated 12.11.2003 (Annex. VI), by which the learned trial court has dismissed the application of the petitioner for amending the written statement.

A suit was filed in 1991 by the respondents 2 to 5 for ejectment and possession in respect of the land in dispute. Petitioners filed the written statement and the trial picked up progress. Present petitioners/defendants filed an application under Order 6, Rule 17 of the Code of Civil Procedure on 25.3.2003, which has been rejected vide impugned judgment and order dated 12.11.2003. Hence this petition.

According to the petitioners, the application could not have been  dismissed for the reason that the application was bona fide and the amendment if allowed would facilitate the conclusion of the trial. Delay cannot be the ground for dismissal of the application.

However, the learned Standing Counsel appearing for respondent no. 1 has vehemently opposed it and submitted that the amendment sought to be made was not permissible as the present petitioners miserably failed to explain as to why the pleadings could not have been taken at the earlier stage of filing of the written statement. Thus, petition is liable to be dismissed.

The issue involved herein is being considered by the courts every day. Amendment  in  the  pleadings  may  generally  be allowed and  the amendment may also be allowed at a belated  stage.   However, it should not  cause injustice  or  prejudice to the other side.   The amendment  sought  should  be necessary  for  the purpose of  determining  the   real  question  in controversy between the parties.  Application for amendment  may  be  rejected if the  other  party cannot be  placed in the same position as if  the pleadings  had  been originally correct, but  the amendment  would cause him injury which could not be compensated  in  terms of cost or  change  the nature of  the  suit  itself  as  it  cannot   be permitted  to  create  an entirely  new  case  by amendment.   A right accrued in favour of a party by lapse  of time cannot be permitted to be taken away by amendment.  Amendment can also be allowed at appellate  stage.  Introduction of an entirely new case, displacing even admission by a party is  not permissible.   (Vide Pirgonda Hongonda  Patil Vs.  Kalgonda Shidgonda Patil & ors., AIR 1957 SC 363;  Nanduri Yogananda Laxminarsimhachari & ors. Vs.  Agasthe  Swarswamivaru,  AIR  1960  SC  622; M/s.  Modi  Spinning and Weaving Mills Co.   Ltd. Vs.  M/s.   Ladha  Ram  & Co., AIR 1977  SC  680; Pandit Ishwardas  Vs.  State of M.P., AIR 1979 SC 551;  and  Mulk  Raj Batra Vs.   District  Judge, Dehradun, AIR 1982 SC 24).

Similar view has been reiterated in G. Nagamma & Anr. Vs.   Siromanamma &  Anr.,  and (1996) 2  SCC  25;   B.K. Narayana  Pillai  Vs. Parameshwaran  Pillai & Anr., (2000) (1) SCC 712. However,  a party cannot be permitted to move  an application  under  Order 6 Rule 17 of  the  Code after the  judgment  has  been  reserved.   (Vide Arjun Singh  Vs.  Mohindra Kumar & ors., AIR 1964 SC 993).

A Constitution Bench of the Hon'ble Supreme Court in Municipal Corporation of Greater Bombay Vs. Lala Pancham & ors, AIR 1965 SC 1008 observed that even the court itself can suggest the amendment to the parties for the reason that main purpose of the court is to do justice, and therefore, it may invite the attention of the parties to the defects in the pleadings, so that they can be remedied and the real issue between the parties may be tried. However, it should not give rise to entirely a new case.

In Jagdish Singh Vs. Natthu Singh, AIR 1992 SC 1604, the Hon'ble Supreme Court held that the Court may allow to certain extent even the conversion of the nature of the suit, provided it does not give rise to entirely a new cause of action. An amendment sought in a plaint filed for specific performance may be allowed to be done without abandoning the said relief but amendment seeking for damages for breach of contract may be permitted.

If the plaintiff wants  to add certain  facts,  which the plaintiff had  not chosen to  mention in the original plaint and the same had  been  in his knowledge when the  plaint was instituted,  the plaintiff cannot be  allowed to make fresh  allegation  of  facts  by  way  of amendment at a belated stage.  (Vide Gopal Krishanamurthi Vs. Shreedhara Rao, AIR 1950  Mad. 32; and Gauri  Shankar  Vs. M/s.  Hindustan  Trust  (Pvt) Ltd., AIR  1972  SC 2091).

In Union of India  &  ors.  Vs.  Surjit Singh  Atwal,  AIR 1979 SC 1701, the Apex Court held that in case of  gross delay, application   for   amendment    must   be rejected.  

It is settled legal proposition that if a right accrued  in favour of a party, as the order impugned  has  not been challenged in  time,  the said right  cannot  be  taken   away  by  seeking amendment  in pleadings.  (Vide Radhika Devi  Vs. Bajrangi  Singh, AIR 1996 SC 2358;  and Dondapati Narayana  Reddy  Vs.  Duggireddy  Venkatanarayana Reddy, (2001) 8 SCC 115).

In G.  Nagamma & ors.  Vs.  Siromanamma & Anr., JT  1998 (4) SC 484, the Hon'ble Apex Court held that  in  an application under Order 6  Rule 17, even  an  alternative relief can  be  sought; however, it should not change the cause of action or materially affect the relief claimed earlier.

In Vineet Kumar Vs.  Mangal Sain Wadhera, AIR 1985  SC 817, the Hon'ble Supreme Court  held that normally  amendment  is  not allowed  if  it changes the  cause  of  action,   but  where  the amendment  does not constitute the addition of  a new cause  of  action, or raises a new case,  but amounts to  not  more  than adding to  the  facts already on   record,  the   amendment  should  be allowed even   after  the   statutory  period  of limitation.

In  Fritiz  T.M.   Clement  &  Anr.   Vs. Sudhakaran  Nadar  & Anr., (2002) 3 SCC 605,  the Hon'ble Supreme  Court  held  that  in  case  the original  plaint is cryptic and amendment  sought to incorporate   about  some   undisputed   facts elaborating  plaintiff's  claim is based  on  the said admitted  facts, amendment should be allowed as it would  place  the  defendant  in  a  better position  to  defend  and   would  certainly  not prejudice  his cause.  Moreso, if the claim  does not challenge  the nature of the relief and  rate  of fee etc. is  challenged without  challenging the total  amount claimed, such amendment may  be allowed even at a belated stage.

In  Gurdial  Singh Vs.  Raj Kumar  Aneja, (2002) 2  SCC  445,  the  Hon'ble  Supreme  Court depricated  the  practice adopted by  the  Courts entertaining  the application under O.  6 R. 17 of the Code  containing  very vague  and  general statements  of  facts  without  having  necessary details in  amendment  application  enabling  the Court to  discern whether the amendment  involves withdrawal  of  an  admission   made  earlier  or attempts to introduce a time-barred plea or claim or is intended to prevent the opposite party from getting the  benefit of a right accrued by  lapse of time,  as  amendment  cannot be  permitted  to achieve the said purposes.

Similarly,   in  Om   Prakash  Gupta  Vs. Ranbir B.   Goyal, (2002) 2 SCC 256, the  Hon'ble Supreme Court  reiterated the same view extending the scope  of O.  6 R.  17 of the Code, observing that amendment  should  not disturb the  relevant rights of  the parties those existed on the  date of institution  of a suit, but subsequent  events may be permitted  to  be  taken   on  record   in exceptional  circumstances if necessary to decide the controversy  in  issue.   The Court  held  as under:-

"Such  subsequent event may be one purely of  law  or  founded on  facts.   In  the former  case, the court may take judicial notice  of  the event and  before  acting thereon  put the parties on notice of how the  change in law is going to affect the rights and obligations of the parties and modify  or mould the course of litigation or  the  relief  so  as to  bring  it  in conformity  with the law.  In the  latter case, the party relying on the subsequent event, which consists of facts not beyond pale  of  controversy either as to  their existence or in their impact, is expected to  have resort to amendment of pleadings under   Order  6  Rule   17  CPC.    Such  subsequent  event,  the Court may  permit being  introduced  into the pleadings  by way of amendment as it would be necessary to  do so for the purpose of  determining real questions in controversy between the parties.  In Trojan & Co.  Vs.  RM.  N.N. Nagappa  Chettiar, AIR 1953 SC 235,  this Court  has  held that the decision  of  a case  cannot be based on grounds  outside the  pleadings  of the parties and it  is the  case pleaded that has to be founded; without  the  amendment of the  pleadings the Court would not be entitled to modify or  alter  the  relief.   In  Sri  Mahant  Govind Rao Vs.  Sita Ram Kesho, (1988) 25 IA  195  (PC), Their  Lordships  observed that,  as  a rule, relief not founded  on the pleadings should not be granted."

In  Muni Lal Vs.  Oriental Fire & General Insurance Co.  Ltd., AIR 1996 SC 642, the Hon'ble Apex Court  held  that  the relief  of  amendment should be  granted to "render substantial justice without causing  injustice to the other party  or violating  fair-play  and  the  Court  should  beentitled to grant proper relief even at the stage of appellate   forum."  Similar   view  has  been reiterated  in Jagdish Singh Vs.  Nathu Sigh, AIR 1992 SC 1604.

In  Smt.  Ganga Bai Vs.  Vijay Kumar, AIR 1974 SC 1126,  the Hon'ble Supreme Court observed as under:-

"The  power  to  allow  an  amendment  is undoubtedly  wide and may, at any  stage, be  properly exercised in the interest of justice,    the    law    of   limitation notwithstanding, but the exercise of such far-reaching   discretionary   power   is governed  by  judicial consideration  and wider the discretion, greater ought to be the  care and circumspection on the  part of the Court."

In  M/s.  Ganesh Trading Co.  Vs.   Maoji Ram, AIR  1978 SC 484, the Hon'ble Supreme  Court observed  that  where  amendment is found  to  be necessary  for promoting the ends of justice  and not for defeating  it, the application should  be allowed.   Similar  view had been  reiterated  in B.K.N.  Pillai  Vs.  P.  Pillai & Anr., AIR  2000 SC 614.

In  Estrella Rubber Vs.  Dass Estate Pvt. Ltd., (2001)  8  SCC 97, the Supreme  Court  held that mere   delay   in   making  the   amenddment application   is  not  enouggh   to  reject   the applicatoin  unless  a new case is made  out,  or serious prejudice is shown to have been caused to the other  side  so as to take away  any  accrued  right.

Similarly,  in Siddalingamma & Anr.   Vs. Mamdha Shenoy,  (2001)  8  SCC 561,  the  Hon'ble Supreme Court  held that the Doctrine of Relation  Back applies  in case of amendment for the reason that the   amendment   generally    governs   the pleadings as amended pleadings would be deemed to have been  filed  originally  as   such  and  the evidence  has  to be read and appreciated in  the light of  the  averments  made in  the  amendment petition.   Similar view hass been reiterated  in Raghu Thilak  D.  John Vs.  S.  Rayappan &  ors., AIR 2001 SC 699.

In Jayanti Roy Vs. Dass Estate Pvt. Ltd., AIR 2002 SC 2394, the Apex Court held that if there is no material inconsistency between the original averments and those proposed by the amendment, application for amendment should be allowed. However, the application should be moved at a proper stage. Application filed at unduly delayed stage should normally be rejected.

In Sampat Kumar Vs. Ayyakannu & anr., (2002) 7 SCC 559, the Hon'ble Supreme Court held that any amendment seeking to introduce a cause of action, which arose during pendency of the suit, may be permitted in order to avoid multiplicity of suit. But, it should not change the basic structure of the suit. More so, court should be liberal to allow amendment at the time of pre-trial of a suit but must be strict and examine the issue of delay where the application for amendment is filed at a much belated stage of commencement of the trial.

In Nagappa Vs Gurudayal Singh & ors., (2003) 2 SCC 274, the Hon'ble Supreme Court held that amendment can be allowed even at an appellate stage in a case where law of limitation is not involved and the facts and circumstances of the particular case so demands, in order to do justice with the parties. The case involved therein had been under the provisions of Sections 166, 168 and 169 of the Motor Vehicles Act, 1988 and as the Act does not provide for any limitation for filing the claim petition, the amenddment at appellate stage was allowed.

In Hanuwant Singh Rawat  Vs. M/s. Rajputana  Automobiles, Ajmer, (1993) 1 WLC  625,  Rajasthan High Court  summarised the  legal position as under:-

(i) That the amendment of pleadings should    ordinarily  be allowed  by  the Court, once it is satisfied  that  the amendment  is necessary for the just and  proper decision of the controversy between the parties;

(ii)  The  amendment  of  the   pleadings should not ordinarily be declined only on the  ground  of delay on the part of  the appellant in seeking leave of the  Court to  amend the pleadings, if the opposite party  can  suitably  be  compensated  by means  of  costs etc.  Even  inconsistent pleas  can  be  allowed to be  raised  by amendment in the pleadings;

(iii)  However,  amendment  of  pleadings cannot  be  allowed so as  to  completely alter the nature of the suit;

(iv)  Amendment of the pleadings must not be   allowed   when amendment  is   not necessary  for the purpose of determining the real  questions in  the  controversy between the parties;

(v) The amendment should be refused where the  plaintiff's  suit would  be  wholly displaced by the proposed amendment;

(vi)  Where  the effect of the  amendment would  be to take away from the defendant a legal right which has accrued to him by lapse of  time or by operation  of  some law;

(vii)  The  amendment  in  the  pleadings should  not  be allowed where  the  court finds  that amendment sought for has  not been made in good faith or suffers  from lack of bonafides;  and

(viii) Ordinarily, the amendment must not be   allowed  where  a party  wants   to withdraw from the admission made by it in the original pleadings."

In  M/s. Modi Spinning & Weaving  Mills Co.  Ltd. (supra),  the Hon'ble  Supreme Court specifically held that amendment in the pleadings is not permitted if it seeks to  "displace  the plaintiff  completely from the admissions made by  the defendant in the written statement."

In Heeralal Vs.  Kalyanmal & ors., (1998)  1 SCC 278,  the  Hon'ble Supreme Court held  that once a written statement contains an admission in favour of   the  plaintiff,  by  amendment   such admission  of the defendant cannot be allowed  to  be withdrawn  if such withdrawal would amount  to totally displacing  the case of the plaintiff and which would cause some irreparable prejudice.

Thus, in view of the above, the law can be summarised that amendments should be allowed if an application is moved at a pre-trial stage, and even at a later stage if the party wants to introduce the facts in respect of the subsequent development as it would be necessary to avoid the multiplicity of the proceedings. The amendment is not permissible if the very basic structure of the plaint is changed or the amendment itself is not bona fide. In case the facts were in the knowledge of the party at the time of presenting the  pleadings, unless satisfactory explanation is furnished for not introducing those pleadings at the initial stage, the amendment should not be allowed. Amendment should also not be permitted where it withdraws the admission of the party or the amendment sought is not necessary to determine the real controversy involved in the case.

The present case requires to be considered in the light of the settled legal propositions. Undoubtedly, matter is pending for about 13 years and trial could not conclude. What petitioners wanted is to amend by adding that the land in dispute had been given to them in partition along with a family-tree and the site-plan. But, there has been no explanation as to why all the three things could not be mentioned in the written statement at the time of filing the same. None of them can be held to be a subsequent development nor any explanation had been furnished by the petitioners, as why the said facts were not in their knowledge at the stage of filing the written statement. It cannot be held in such a case that petitioners were not aware of these things.

Thus, in view of the above, we agree with the learned trial court that the application was to delay the conclusion of the trial and would not be a bona fide attempt on their part.

We find no force in the petition. It is, accordingly, dismissed.

29.1.2004

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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