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ALAKH PRAKASH versus RAM KUMAR & OTHERS

High Court of Judicature at Allahabad

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Alakh Prakash v. Ram Kumar & Others - WRIT - C No. 41878 of 2003 [2005] RD-AH 1106 (21 April 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgement Reserved on 9.3.2005

Judgement Delivered on21.4.2005

Civil Misc. Writ Petition No. 41878 of 2003

Alakh Prakash.....Vs.....Ram Kumar and others.

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Hon'ble Sabhajeet Yadav,J.

The petitioner who is defendant in suit in question has challenged the order dated 29.8.2003 passed by the District Judge, Jalaun at Orai in Civil Revision No. 9 of 2003, Alakh Prakash Vs. Ram Kumar and others whereby he has affirmed judgement and order dated 21.4.2003 passed by Civil Judge (Sr. Division) Jalaun at Orai in Original Suit No. 170 of 1996, Ram Kumar Vs. Alakh Prakash and others, thereby the amendment sought in his written statement under Order 6 Rule 17 CPC was rejected. Thus the judgement and order passed by both the courts below are under challenge in the writ petition.

(2) The brief facts of the case are that the plaintiffs-respondents filed Suit No. 170 of 1996 for specific performance of agreement for sale dated 29.6.1995 against the defendant-petitioner with the allegations that the petitioner was agreed to sell Plot Khasra No. 63 area 3.662 hectares situated in village Nada, Pargana Orai, District Jalaun for a sum of Rs. 3 Lakhs and executed a registered agreement for sale of plot in question in favour of plaintiffs-respondents on 29.6.1995. The respondents paid a sum of Rs. 1,50,000/- to the petitioner as earnest money and the rest amount, as per agreement, would be paid at the time of execution of the sale deed. According to the terms of agreement the period for execution of sale deed was for two years. The respondents asked the petitioner to execute the sale deed in their favour as per agreement for sale, but the petitioner postponed the execution of the sale deed on one pretext or the other. Consequently, the respondents also served a registered notice upon the petitioner, but in spite of service of registered notice, the petitioner did not execute any sale deed in their favour in accordance with the agreement for sale. Therefore, the aforesaid suit for specific performance of agreement for sale was instituted against the petitioner.

(3) The petitioner filed his written statement in the aforesaid suit, wherein he admitted the execution of agreement for sale in respect of the plot in dispute for Rs. 3 Lakhs in favour of plaintiffs-respondents and the receipt of Rs. 1,50,000/- as earnest money. He alleged in his written statement that though the agreement for sale was executed on 29.6.1995, but his intention was not to execute the sale deed. It was further alleged in his written statement that on the same day i.e. 29.6.1995 a deed was executed by the plaintiffs-respondents in favour of the petitioner-defendant stipulating therein that if the petitioner pay the amount of Rs. 1,50,000/-, the respondents will not get the sale deed executed in their favour and assured to get the deed signed by other respondents, but the other respondents did not sign the deed. The petitioner was ready to pay Rs. 1,50,000/- in terms of the deed dated 29.6.1995, but the respondents refused to accept the said amount on one pretext or the other. The respondents were not ready and willing to get the sale deed executed as per terms of the agreement for sale and they never asked the petitioner to execute the sale deed in their favour during the period of two years fixed for execution of the sale deed. The respondents themselves committed breach of the terms of agreement for sale, hence the agreement for sale has ceased to exist and it cannot be enforced. The suit is also barred by Section 168-A of U.P.Z.A. & L.R. Act.

(4) It is necessary to mention here that in the suit in question issues were framed on 28.10.1998 and both the parties have led their evidence and the evidence was closed on 14.11.2002. Thereafter, a date i.e. 19.12.2002 was fixed for arguments. However, on 20.1.2003 petitioner moved an application no. 47-A-1 for amendment in the written statement, whereby he proposed to mention in para 2 and 13 of his written statement that he took a sum of Rs. 1,50,000/- as loan from the respondents, as the respondents are carrying on the business of money lending, but they have not obtained any licence for doing money lending business. The respondents filed objection paper no. 48-C-2 whereby they have alleged that if the proposed amendment is allowed, it would certainly change the nature of suit, as it is time barred and also malafide. The petitioner wants to fill up the lacuna by the proposed amendment. If the amendment application is allowed, the parties would have to lead fresh evidence and the case would be lingered on. Accordingly, the amendment application is liable to be rejected. The Civil Judge (Sr. Division) Jalaun at Orai has rejected the amendment application vide his judgement and order dated 21.4.2003 moved by the petitioner under Order 6 Rule 17 CPC. Feeling aggrieved against which the petitioner filed aforesaid revision before the District Judge, Jalaun at Orai, who has also dismissed the revision affirming the findings of Civil Judge (Sr. Division), Jalaun at Orai, hence this petition.

(5) Affidavits have been exchanged between the parties and the case is ripped for final disposal, therefore, with the consent of the parties, this writ petition is disposed of finally.

(6) I have heard Sri M.C. Dwivedi, learned counsel for the petitioner and Sri M.C. Chaturvedi, learned counsel for respondents no. 1,2 and 3 and perused the record.

(7) Learned counsel of petitioner has submitted that the proposed amendment sought through application moved by the petitioner who was defendant in the suit does not change the nature of defence and it does not raise a new plea rather the necessary averments have already been made in para 13 of the written statement. The matter is touching very root of the case and grave injustice would be caused in case the amendment is not allowed in the pleadings. It is further submitted that mere fact that the trial has been concluded and evidence of the parties have been closed, would not preclude the court to allow the amendment application, which is necessary for adjudication of real question in controversy involved in the case between the parties, and to avoid the multiplicity of proceedings. The amendment application is bonafide and cannot be term as malafide merely because of the reason that the amendment application was moved on closure of evidence of the parties before the final arguments in the suit. In order to elaborate his submissions, he has further submitted that the provisions underlying in Order 6 Rule 17 of the CPC have vide import and court can permit the amendment in the pleadings even after decree of the suit and in the proceeding at appellate stage. In support of his submission, learned counsel for the petitioner has placed reliance upon decisions rendered by the Hon'ble Apex Court in case of Pankaja and another Vs. Yellappa (D) by L.Rs. and others reported in A.I.R. 2004 S.C. 4102, Sampath Kumar Vs. Ayyakannu reported in A.I.R. 2002 S.C. 3369 and a decision of this Court rendered in case of Mishri Singh Vs. Addl. District Judge reported in 2003 (4) AWC 2889. Contrary to it Sri M.C. Chaturvedi, Advocate appearing for respondents has supported the decisions of courts below and further in support of his arguments he has placed reliance upon decision of this Court rendered in Industrial Rubber and Latex Manufacturers and another Vs. Bank of Baroda, Dehradun reported in ALR 1989 (15) page 389.

(8) Before dealing with the submissions of learned counsel for the parties it is necessary to have a glance over the provisions of Order  6 Rule 17 of CPC .  For ready reference the aforesaid provisions are reproduced as under :

"O.6 R.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."

(9) From the perusal of Order 6 Rule 17 CPC it is clear that rule consists of two parts i.e. (a) 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 (b) all such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties. Thus from the aforesaid provisions of rule it is clear that the power to allow an amendment in the pleading is undoubtedly very wide and may at any stage of proceeding, it can be appropriately exercised in the interest of justice, therefore, the aforesaid discretionary power has to be exercised with great care and circumspection by the court. Since the disputes regarding amendment in pleadings are well common in proceedings relating to civil suit and appeals arise there from therefore, its true content, scope and limitations have received consideration of Hon'ble Apex Court as well as High Courts in catena of decisions. Accordingly I would like to deal with the issue in some detail.

(10) In case of Ramsaran Mandar and others Vs. Mahabir Sahu, A.I.R. 1927 Privy Council 18, their Lordships had held that, "It is not permissible by the amendment to change the nature of the suit as framed; and even if, it were, the defendants affected by such amendment must have an opportunity to rebut such new cause of action, a course which would involve fresh written statements and a fresh trial. Their Lordships are unable to permit such a course at this stage." In the aforesaid case the amendment was sought before the Privy Council itself.

(11) In case of Ardeshir H. Mama Vs. Flora Sassoon reported in A.I.R. 1928 Privy Council 218, it was held by their Lordships of Privy Council that a suit for specific performance or damage in the alternative could be amended so as to convert it into one for damage only. The observation made in para 2 at page 219 is reproduced as under :

"In other words, that the Court should have the power of granting such an amendment in a proper case is salutary and indeed necessary. The possibility that the power will be exercised may, in certain cases, be the only effective check upon a defendant to a specific performance suit, who by delay, expensive appeals and other devices, sets himself to starve a relatively impecunious plaintiff into submission by making continued performance of the contract on his part, beyond his power. And such a power is possessed by the Court in England, and in a proper case and under suitable conditions it may be used, see Nicholson Vs. Brown (6). But it is one to be most carefully and jealously exercised in all the circumstances of each individual case and with due regard to its effect upon the position both of the plaintiff and the defendant. If the defendant is to be prevented by the possible exercise of the power from starving a plaintiff out of his rights, the plaintiff must not, by its ill considered exercise, be permitted to turn his suit into a gamble for himself at the defendant's expense. Indeed, so serious in many cases is the exercise of this power that to their Lordships it would appear to be a wise precaution for a Judge before allowing any such amendment in a contested case to require the plaint to be actually remodeled in a form appropriate to an action seeking compensation for breach of contract and nothing else. The extent and propriety of what is asked for will thus be made apparent, and the amendment will be allowed or refused with a due appreciation of the position."

(12) In case of Kanda and others Vs. Waghu reported in A.I.R. (37) 1950 Privy Council 68, their Lordships of Privy Council in para 12 of the decision had held that the powers to amend the pleadings must be exercised in accordance with legal principles. The amendment, which involves the setting up of a new case and alters the real matter in controversy between the parties, cannot be allowed.

(13) In case of L.J. Leach and Company Ltd. and another Vs. Messrs. Jardine Skinner and Company reported in A.I.R. 1957 S.C. 357, in para 16 of the judgement Hon'ble Apex Court while relying and quoting the observations made by Privy Council in Charan Das Vs. Amir Khan held that it is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application, but it was further observed that that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice. For ready reference para 16 of the decision of the Hon'ble Apex Court is reproduced as under :

"(16) It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and doe not affect the power of the Court to order it, if that is required in the interests of justice. In Charan Das Vs. Amir Khan, 47 Ind App 255:( A.I.R. 1921 P C 5) (A) the Privy Council observed:

"That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case."  

Vide also Kisan Das Vs. Rachappa, ILR 33 BOM 611(B).

(14) In case of Nanduri Yogananda Lakshminarasimhachari and others Vs. Sri Agastheswaraswamivaru reported in A.I.R. 1960 S.C. 622, in para 4 of the decision Hon'ble Apex Court has held that the High Court was right in allowing the amendment application at appellate stage by the addition of new prayer in the prayer clause of the plaint as all allegations had been made in the plaint, requisite pleas had been raised by the appellants, and an issue was framed on the question, the parties were fully cognizant of the points in controversy and they had led the necessary evidence. For ready reference para 4 of the decision is reproduced as under :

"(4) ................................................The question of amendment in our opinion, was rightly decided by the High Court. As held by that court all the necessary allegations had been made in the plaint and the requisite pleas had been raised by the appellants; an issue was framed on the question and the parties were fully cognizant of the points in controversy and the necessary evidence was led by the parties. In this view of the matter the High Court was right in allowing the amendment by the addition of a prayer in the prayer clause."

(15) In case of Laxmidas Dayabhai Kabrawala Vs. Nanabhai Chunilal Kabrawala and others reported in A.I.R. 1964 S.C. 11, in para 14 of the decision Hon'ble Apex Court has held as under :

"(14) ...............................................................It is obvious that the learned Judge considered that the correct date for the computation of limitation in such cases had been decided in the unreported decision of the Division Bench of the Bombay High Court to which we have already made a reference. The learned Judges there took the view that the crucial date for the purpose of determining when the plaint in a cross suit should be treated as having been filed was not the date on which the conversion was ordered but the date on which the Written Statement containing the counter-claim was filed. We consider that this decision, of the Bombay High Court lays down the correct rule in cases of this kind. It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6 Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading..................................................."

(16) In case of A.K. Gupta & Sons Ltd. Vs. Damodar Valley Corporation reported in A.I.R. 1967 S.C. 96, the plaintiff had sought a declaration of his rights under the terms of a contract. The suit was decreed. But, as the first appellate Court had reversed the decree on the ground that Section 42 of the Specific Relief Act barred the grant of a mere declaratory decree in such a case, the appellant had sought leave, by filing an amendment application in its second appeal before the High Court seeking to add a relief to recover such monies as may be found due to him on proper accounting. By a majority, the view expressed by the Apex Court was that the amendment should be allowed although the Court affirmed the principle that, as a rule, a party should not be allowed, by means of an amendment, to set up a new cause of action particularly when a suit on the new case or cause of action is barred by time. In the aforesaid case after referring the earlier decisions of Privy Council and Hon'ble Apex Court, it has been further held that a different or additional approach to the same facts could be allowed by amendment even after the expiry of the statutory period of limitation. It had pointed out that the object of rules of procedure is to decide the rights of the parties and not to punish them for their mistakes or shortcoming. It also said that no question of limitation, strictly speaking, arose in such cases because what was sought to be brought in was merely a clarification of what was already there. In this case the expression ''cause of action' has also been elaborately discussed as under :

"The expression '' cause of action' in the present context does not mean ''every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke Vs. Gill (1973) 8 CP 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson Vs. Unicos Property Corporation Ltd., 1962-2 All ER 24  and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words ''new case' have been understood to mean ''new set of ideas', Dornan Vs. J.W. Ellis and Co. Ltd., 1962-1 All ER 303. This also means to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time."

(17) In case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon, reported in A.I.R. 1969 S.C. 1267, the Hon'ble Apex Court while dealing with the principle and scope of the amendment in the pleading has held at page 1269 as under :

"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed it is can be made without injustice to the other side."

(18) In case of Shri Iswar Jagannath Deb Jew Vs. Fatik Chandra Seal and others reported in A.I.R. 1972 Calcutta 372, the amendment in the written statement was sought for after seven years. It was made to clarify and elucidate the facts already in the pleadings and to formulate new questions of law from such facts for decision by Court. It was held that amendment after seven years did not, in the circumstances, cause injustice to the plaintiff. In para 10 of the decision the Calcutta High Court relied upon another decision of the same High Court and held that if the amendment is necessary to decide the real issue between the parties the amendment should be granted, even though the Court may think that the plaintiff or the defendant who seeks the amendment will not be able to establish the facts necessary to support the amended plea of defence. For ready reference para 10, 11 and 12 of the decision are reproduced as under :

"10. The next case relied on by Mr. Law is A.I.R. 1950 Cal. 379 (Abdul Rahim Naskar Vs. Abdul Jabbar Naskar) where Harries, C.J. and Sarkar, J. (as he then was) held:

"If the amendment is necessary to decide the real issue between the parties the amendment should be granted, even though the Court may think that the plaintiff or the defendant who seeks the amendment will not be able to establish the facts necessary to support the amendment plea of defence."

"11. Dr. S. Das who was appearing for the defendant Fatik Chandra Seal supported the petitioner and submitted before me that in the conference which was held with him these points also struck him as important questions which arise for consideration of the Court and accordingly he also advised that an application for amendment should be made. Prima facie, I am satisfied that the amendment should be allowed. The proposed amendments are questions of law which arise from the pleadings or from facts which are already there in the plaint or in the written statement of the parties. Only the defendant Umesh Chandra Seal has clarified and/or formulated the points of law which he wants that the Court should consider for determination of the real question of controversy between the parties."

"12. As to whether amendment should be allowed or not; the ultimate test is :- (a) whether the amendment is necessary for the purpose of determining the real question of controversy, (b) whether the amendment can be allowed without injustice to the other side. It is not the case that these amendments are made mala fide. The whole question is whether by reason of delay for making this application any injustice is caused in the plaintiff. There is some delay no doubt but however much the delay may be, it is a question of law which the defendant wants to raise in the suit and the suit has not been heard."

(19) In case of Smt. Ganga Bai Vs. Vijay Kumar and others reported in A.I.R. 1974 S.C. 1126, in para 22 of the decision the Apex Court has held as under :

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

(20) In case of M/s Modi Spinning & Weaving Mills Co. Ltd. and another Vs. M/s Ladha Ram & Company reported in A.I.R. 1977 S.C. 680, the application for amendment of written statement by substituting certain paragraphs was sought for. Amendment introducing entirely different new case and seeking to displace the plaintiff completely from the admissions made by defendants in written statement. In that context the aforesaid amendment application was held liable to be rejected. For reference para 8 and 9 of the decision is reproduced as under :

"(8)  The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side."

"(9) The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case."

(21) In case of M/s Ganesh Trading Company Vs. Moji Ram reported in A.I.R. 1978 S.C. 484, in para 4 and 5 of the decision Apex Court has enunciated the law and principles governing the amendments in the pleadings. For ready reference para 4 and 5 of the decision is reproduced as under :

"(4) It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."

"(5) It is true that if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings."

(22) In case of Haji Mohammed Ishaq Wd. S.K. Mohammed and others Vs. Mohamed Iqbal and Mohamed Ali & Company reported in A.I.R. 1978 S.C. 798, the amendment of written statement sought in appeal was on such facts, which if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea, which was never taken in the original pleadings. The Additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. In such facts and circumstances of the case in para 6 of the decision the Apex Court has held that the High Court in appeal rightly rejected all petitions for amending their written statements and adducing additional evidence. In this case the amendment in the written statement was sought for after three years from filing of the appeal in the High Court.

(23) In case of Ishwardas Vs. The State of Madhya Pradesh and others reported in A.I.R. 1979 S.C. 551, in para 4 of the decision Apex Court has held as under :

"There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise new plea. All that is necessary is that the Appellate Court should observe the well-known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances, which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage, the reason why it was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court."

(24) In case of Smt. Shyam Dulari Vs. Bhagwan Das and others reported in A.I.R. 1979 Allahabad 102, in para 3 of the decision this Court has held as under :

"It will be apparent that amendment of pleadings are normally to be allowed unless they cause injustice to the other side. In the instant case the plaintiff only sought the amendment of a relief for possession in the alternative in the suit. Accordingly to the necessary allegations already existed in the plaint and the omission by inadvertence. This amendment, to our mind, was not of such a nature as to amount to changing the nature of the suit. Consequently it should have been allowed. The objection to its being allowed at the appellate stage, to our mind, has no force as it is fairly settled that amendment of pleadings can be allowed at any stage."

(25) In case of B.K. N. Pillai Vs. P. Pillai and another reported in A.I.R. 2000 S.C. 614, after referring various earlier decisions of Hon'ble Apex Court, Privy Council and other Courts in para 4 of the decision the Apex Court has held that the principles applicable to amendment in plaint are equally applicable to the amendment of written statement. The relevant observation made in para 4 and 5 of the decision is reproduced as under:

"4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The principles applicable to the amendments of the plaints are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite part on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement."

"5. In the appeals the appellant-defendant wanted to amend the written statement by taking a plea that in case he is not held a lessee, he was entitled to the benefit of Section 60 (b) of the Indian Easements Act, 1882. Learned counsel for the appellant is not interested in incorporation of the other pleas raised in the application seeking amendment. The plea sought to be raised is neither inconsistent nor repugnant to the plea already raised in defence. The alternative plea sought to be incorporated in the written statement is in fact the extension of the plea of the respondent-plaintiff and rebuttal to the issue regarding liability of the appellant of being dispossessed on proof of the fact that he was a licencee liable to be evicted in accordance with the provisions of law. The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting his prayer particularly when the respondent-plaintiff could be compensated by costs. We do not agree with the finding of the High Court that the proposed amendment virtually amounted to withdrawal of any admission made by the appellant and that such withdrawal was likely to cause irretrievable prejudice to the respondent."

(26) In case of Santosh Singh and another Vs. Mahant Iqbal Singh reported in A.I.R. 2000 S.C. 3155, a suit for recovery of possession was filed by respondent claiming to be Mahant on the basis of that the property, which was trust property and the person who has leased out property was incompetent. No formal prayer seeking declaration to the effect that lease deed was invalid and/or void and/or are not binding was sought. However necessary averments were made in the plaint challenging the lease deed. Issue in this regard was also framed and parties have led evidence thereon. The questions as to validity of the lease agitated before the courts below, no prejudice caused to the appellant. In the aforesaid facts and circumstances of the case the Hon'ble Apex Court has held that all that was necessary to cure the defect was an amendment incorporating the prayer and this could have been done at any stage. For ready reference para 7 of the decision is reproduced as under :

"7. It is correct that such a declaration should have been sought. Normally, in the absence of such a declaration such a suit would not be maintainable. However, in this case we find that even though there was no prayer to the effect that the Lease Deed was not valid and/or void and/or are not binding, the necessary averments are there in the plaint. The appellants thus knew that the lease deed was being challenged. They met the challenge in their written statement. Thereafter issues namely, Issues Nos. 4 and 5 had been framed. Evidence was led by the parties on those Issues. Arguments were advanced on those Issues. Therefore, this question has been agitated by the parties in all the Courts. Thus even though there was no formal prayer was asked for, no prejudice has been caused to the appellants inasmuch as he has not been prevented from leading evidence on this aspect and has not been precluded from raising contentions in this behalf. In our view, all that was necessary to cure the defect was an amendment by incorporating one prayer. This could have been done at any stage. In this view of the matter and particularly in view of the fact that we are in agreement with the findings that the property is a Trust property and that the lease in question was not for consideration or for legal necessity, we see no reason to interfere."

(27) In case of Ragu Thilak D. John. Vs. S. Rayappan  and others reported in A.I.R. 2001 S.C. 699, a suit for permanent injunction restraining the defendant from demolishing the compound wall of suit property was filed. During the pendency of suit defendant demolished the compound wall. The plaintiff sought an amendment to add relief of recovery of damage. Against such amendment the plea has been raised that relief sought through the amendment is barred by limitation. The same has also been disputed by the plaintiff. Following earlier decisions of Supreme Court in B.K.N. Pillai and other cases the Apex Court has held that the amendment sought is liable to be allowed. The question of limitation could be made subject matter of the issue after allowing the amendment sought for. For ready reference para 6 of the decision is reproduced as under :

"6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for."

(28) In case of Sampath Kumar Vs. Ayyakannu and another reported in A.I.R. 2002 S.C. 3369, the suit by plaintiff was for permanent prohibitory injunction against dispossession. During the pendency of suit defendant forcibly dispossessed the plaintiff. An application for amendment was made by the plaintiff for seeking relief of declaration of title to suit property and consequential relief of delivery of possession was made before the commencement of trial. It was held that proposed amendment does not alter the basic structure of suit. Amendment can be allowed, as it would curtail the multiplicity of legal proceedings between the parties. In this case in para 9 of the decision the Apex Court has dealt with the question of delay in moving amendment application and in para 10 of the decision has made reference of the case of Siddalingamma and another Vs. Mamtha Shenoy in para 11 and concluding part of the decision it has been held that the interest of defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed. For ready reference para 9 and 11 of the decision is reproduced as under :

"9. . . . . . .  . . . . . . . . . . . . The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those, which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment."

"11. ............................. The plaintiff has alleged the cause of action for the relief's now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed."  

(29) In case of Pankaja and another Vs. Yellappa (D) by I. Rs. And others reported in A.I.R. 2004 S.C. 4102, the suit for permanent injunction restraining the interference with possession of plaintiff was filed. The amendment seeking declaration of title was sought for after substantial delay. The objection was raised to the effect that relief is barred by law of limitation. The Apex Court has held that the rejection of amendment without considering the question of limitation is incorrect. It was further observed that the factual details as regards the title were already mentioned in the plaint, therefore, it cannot be said that by amendment new relief was being claimed. In this case after referring the earlier judgements of the Apex Court in para 12, 13 and 14 of the decision the law regarding scope of amendment of pleading vis-à-vis question of limitation has been enunciated by the Apex Court and in para 19 of the decision the Apex Court following the decision rendered in case of Ragu Thilak D. John (supra) had set aside the impugned order of the courts below and allowed the amendment sought for and directed the trial court to frame necessary issue in this regard and decide the said issue in accordance with law bearing in mind the law laid down by Apex Court in case of L.J. Leach and Co. Ltd. and another (supra). For ready reference the observation made by Hon'ble Apex Court in para 12 and 19 of the decision is reproduced as under :

"12. So far as the Court's jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the Court to allow applications in spite of the delay and latches in moving such amendment application."

"19. We have already noted, hereinabove, that there is an arguable question whether the limitation applicable for seeking the relief of declaration on facts of this case falls under Entry 58 of the Limitation Act or under Entry 64 or 65 of the Limitation Act which question has to be decided in this trial, therefore, in our view, following the judgement of this Court in the case of Ragu Thilak D. John (supra), we set aside the impugned orders of the Courts below, allow the amendment prayer for, direct the trial Court to frame necessary issue in this regard and decide the said issue in accordance with law bearing in mind the law laid down by this Court in the case of L.J. Leach and Co. Ltd. and another (supra)."

(30) From the aforesaid law enunciated by their Lordships of Privy Council, Hon'ble Apex Court as well as High Courts it is clear that power of the Court to allow the amendment application is very vide but the same has to be exercised with due care and circumspection and in accordance with settled legal principles. From the close analysis of the aforesaid decisions following principles are deducible:

(i) The Courts are declined to allow amendments in the pleading, if a fresh suit on the amended claim would be barred by limitation on the date of application moved for such amendment. But it is one of the factor to be taken into account in exercise of discretion as to whether amendment should be ordered, and does not affect the power of Court to order it, if that is required in the interests of justice;

(ii) The power should not as a rule be exercised where the effect is to take away from a defendant a legal right which had accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case;

(iii) The Court should ordinarily refused the amendment when the effect of amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment.

(iv) Where an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleadings;

(v) As a rule a party should not be allowed by means of an amendment to set up a new cause of action particularly when a suit on the new case or cause of action is barred by time;

(vi) A different or additional approach to the same facts should be allowed by amendment even after expiry of statutory period of limitation because of the simple reason that the object of rule of procedure is to decide the rights of the parties and not to punish them for their mistakes or short-comings. In such cases the question of limitation does not arise because what was sought to be brought in was merely a clarification of what was already there;

(vii) A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court can always allow amendments in the pleadings of the party unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs;

(viii) If the amendment is necessary to decide the real issue between the parties the amendment should be granted, even though the Court may think that the plaintiff or the defendant who seeks the amendment will not be able to establish the facts necessary to support the amended plea of defence;

(ix) As to whether amendment should be allowed or not; the ultimate test is :- (a) whether the amendment is necessary for the purpose of determining the real question of controversy, (b) whether the amendment can be allowed without injustice to the other side ?

(x) Defective pleadings are generally curable if the cause of action sought to be brought out was not abinitio completely absent. Even very defective pleading may be permitted to be cured so as to constitute a cause of action where there was none provided necessary conditions, such as a payment of either any additional court fees which may be payable or of costs of other side are complied with. It is only if the lapse of time has completely barred a remedy on a newly constituted cause of action that the courts should ordinarily refused prayer of amendment of pleadings.

(xi) There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise new plea. All that is necessary is that the appellate court should observe the well-known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances, which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at appellate stage, the reason why it was not sought in the trial court. If necessary material on which the plea arising from the amendment is decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at appellate stage merely because the necessary material are not already before the Court;

(xii) The principles applicable to amendments of plaints are equally applicable to amendments of written statements also. The Courts are more generous in allowing the amendment of written statement as the question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence, which however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn.

(xiii) All amendments of the pleadings should be allowed which are necessary for determination of real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of the facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.

(xiv) No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement;

(xv) The dominant purpose of allowing the amendment is to minimize the litigation and to decide the real controversy between the parties inasmuch as to avoid the multiplicity of proceedings. The plea that the relief sought by way of amendment was barred by time can be decided and tried as one of the issue after allowing the amendment prayed for;

(xvi) The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those, which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down in this regard. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment;

(xvii) The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. But the interest of defendant can be protected in delayed application by directing that so far as relief sought for are concerned, the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed. In such cases the court can allow the amendment sought from the date of moving of the application without permitting it to relate back from the date of institution of suit as a normal rule of amendment of the pleadings.

(xviii) The expression ''cause of action' does not mean every fact which is material to be proved to entitle the plaintiff to succeed for, if it were so, no material fact could ever be amended or added and, of course, no one want to change or add an immaterial allegation by amendment. The expression for the present purpose only means, a new claim made on a basis constituted by new facts. The words ''new case' should be understood to mean ''new set of ideas'. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time;

(31) In this connection it is also necessary to make it clear that the principles enunciated herein before are only guiding factors and none of the principle alone can be said to be conclusive principle in the matter. The situations visualized herein before can also not be said to be exhaustive in the matter.  Thus while considering the cases of amendments in pleadings the courts are required to have regard of the principles enunciated herein before in given facts and circumstances of each individual case.  

(32) Now coming to the facts of the case and testing the same on touched stone of law laid down herein before it is clear that while considering the case of amendment of pleadings of the petitioner neither trial court nor revisional court below has examined the issue on the aforesaid angles. It appears that both the courts below have not recorded any finding that the amendment sought in the written statement by the petitioner has set up entirely a new case in defence whereby any admission made by him in original written statement has been withdrawn inasmuch as by such proposed amendment sought to be incorporated in the written statement, it would cause prejudice to the plaintiff which could not be compensated in terms of money by awarding a reasonable costs and there would be inconsistent pleadings and allegations in the written statement. It is also not pointed out that such amendment is otherwise not permissible under law, merely because of the reason that the evidence has been closed before the trial court and date was fixed for final argument in the suit. If the amendment in written statement would be allowed the parties would be permitted to adduce some fresh evidence which would cause some further delay in finalisation of suit, In my considered opinion would not be a legitimate ground for rejection of amendment sought in the written statement. The delay in moving amendment application in the written statement after closure of evidence consequently some more delay which would be caused in finalisation of suit may also not ipso facto treated to be a malafide unless it is based on some other corroborative material and circumstances of the case and there is nothing on record to show that the aforesaid findings are based on some material on record with cogent reasons.

(33) Contrary to it on the basis of undisputed facts available on record it is clear that in the suit in question issues were framed on 28.10.1998 and both the parties have lead their evidence and the same was closed on 14.11.2002. Thereafter a date that is 19.12.2002 was fixed for arguments. However the arguments were not advanced by the parties, meanwhile on 20.1.2003 the petitioner has moved an application for amendment in the written statement whereby he has proposed to mention in para 2 and 13 of his written statement that he took a sum of Rs. 1,50,000/- as a loan from the respondents as the respondents are carrying on business of money lending but they have not obtained any licence for doing money lending business. The respondents have filed their objections whereby they have alleged that if the proposed amendment is allowed, it would certainly change the nature of suit as it is time barred and also malafide. It is also alleged that the petitioner wants to fill up lacuna by proposed amendment. If the amendment application is allowed, the parties have to lead fresh evidence and the case will be lingered on. But there is nothing on record to show that the respondents have substantiated the aforesaid allegations made in their objections. In my considered view the objections made by respondents are not sustainable for simple reason that amendment sought to be made in the written statement does neither change the nature of defence in suit whereby any admission made earlier has been withdrawn by substituting new defence in original written statement nor there is any material to show that it is malafide on account of such delay alone. Contrary to it the plaintiff- respondent could be adequately compensated by awarding a reasonable cost if on account of proposed amendment some delay would be caused in the final decision of the suit. However the submissions made by learned counsel of petitioner and rulings referred by him also re-enforces the view taken by me and contrary to it the decisions relied upon by the learned counsel of respondents are distinguishable and on facts. The law enunciated therein does not support the plaintiff's case rather the decision referred by him reinforces the settled legal proposition discussed herein before. Thus the submissions made by learned counsel of respondents is without any substance hence liable to be rejected.

(34) Thus from the aforesaid discussion it is clear that in case the law enunciated herein above would have been correctly applied by the courts below, the amendment sought by the petitioner in the written statement would have been allowed by awarding a reasonable cost payable to the plaintiff-respondent but both the courts below have failed to consider aforesaid aspect of the matter and permitted to travel their judgements on the wrong notion of law and taken the view contrary to the well settled legal propositions. Thus both the courts below, while deciding the case, have committed patent illegality apparent on face of record and the judgement and order passed by the courts below are not sustainable in the eyes of law and are liable to be quashed. Accordingly the impugned order dated 29.8.2003 passed by District Judge, Jalaun at Orai in Civil Revision No. 9 of 2003, Alakh Prakash Vs. Ram Kumar and judgement and order dated 21.4.2003 passed by Civil Judge (Sr. Division), Jalaun at Orai on amendment application moved by the petitioner in Original Suit No. 170 of 1996, Ram Kumar Vs. Alakh Prakash and others are hereby quashed and the aforesaid application moved by the petitioner under Order 6 Rule 17 CPC seeking amendment in the written statement is hereby allowed on payment of  cost of a sum of Rs. 1000/-( one thousand) payable to the plaintiff-respondent.

(35) Thus in view of the discussion and observation made herein before the writ petition succeeds and allowed.

(36) There shall be no order as to costs. The parties shall bear their own cost.

Date:21.4.2005

LJ/-          


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