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THE PASTOR, CENTRAL METHODIST CHURCH, ALIGARH versus KAILASH CHAND SAXENA & OTHERS

High Court of Judicature at Allahabad

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The Pastor, Central Methodist Church, Aligarh v. Kailash Chand Saxena & Others - WRIT - C No. 10081 of 2003 [2006] RD-AH 11228 (10 July 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

CIVIL MISC. WRIT PETITION NO.10081 Of 2003.

The Pastor, Central Methodist Church, Aligarh.   Petitioner.

Versus

Sri Kailash Chand Saxena and others. Respondents.

Hon'ble Rajes Kumar, J.

By means of the present writ petition under Article 226 of the Constitution of India the petitioner has challenged the order dated 21.12.2002 passed by the Civil Judge, (Junior Division), Koil rejecting the amendment application filed by the petitioner seeking the following reliefs:

i) to issue a writ, order or direction in the nature of certiorari quashing the order of Civil Judge (Junior Division), Koil, Aligarh in Original Suit No.347 of 1998 dated 21.12.2002 (Annexure-4 to the instant writ petition) and to allow the application 74-Ka seeking amendment in the written statement.

ii) to issue any other suitable writ, order or direction which the Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case.

iii) to award costs of this petition to the petitioner.

The petitioner is a defendant in suit no. 347 of 1998 filed by the plaintiff-respondents for prohibitory and mandatory injunction, inter alia, on the ground that the petitioner-defendant has raised the boundary wall on the property of the plaintiff-respondent. The suit was contested by the defendants 2 to 4 by filing a written statement. In paragraph 3 of the written statement, it was specifically mentioned that there was no designated person and, thus, the defendant no.1 has been wrongly impleaded. In paragraph 16, it has also been pleaded that the suit is barred for mis-joinder of necessary party. It is claimed that at the time of preparation of the case, it transpires that though in the suit for injunction over the said property, the question of title is to be decided between the parties, but the Executive Board of MGI having its registered office at Bombay and who is the owner of the church property (Suit property) has not been impleaded. The said plea was necessary as the suit was liable to be dismissed for non-joinder of necessary party inasmuch as in absence of Executive Board of MGI being party, the question of title between the parties cannot finally be decided and certain other pleas which does not change the nature of the defence were also necessary to brought on record for full and final adjudication of the controversy involved in the suit. It appears that petitioner was advised to file amendment application seeking amendment in the written statement, and, accordingly, the amendment application was moved on 17.12.2002. It may be mentioned here that the written statement was filed on 20th July, 2000. Civil Judge (Junior Division), Koil, Aligarh by his order dated 21.12.2002 rejected the application mainly on the ground that in view of the provision of Order 6 Rule 17 as substituted by Section 7 of the Code of Civil Procedure (Amendment) Act, 2002, the amendment cannot be allowed after the trial has commenced inasmuch as it has not been established that at the time of filing of the written statement, pleading sought to be inserted by way of amendment were not within the knowledge of the defendants.

Heard learned counsel for the parties.

Learned counsel for the petitioner submitted that in view of Section 16 (2) (b) of the amendment Act, 2002, the amended provision shall not apply. In the present case, the pleading was filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act. He submitted that in the present case, written statement was filed on 20.7.2000 much before the date of the amendment. He further submitted that in the amendment application, it was specifically stated, that at the time of preparing the case for argument, it transpired that certain legal pleas and important factual assertion have been left out being mentioned in the written statement and the amendment was of such nature that it was necessary for the adjudication of the issue involved, namely, title on the property. He submitted that the amendment application was moved before the commencement of the hearing of the case and, therefore, the same should have been allowed. In support of his contention, he relied upon the decision of this Court in the case of Fertilizer Corporation of India Ltd Versus M/S Prabha Kirana Stores reported in AIR 2004 Allahabad, 82.

Learned counsel for the respondent submitted that the amendment application has been moved after the close of the evidence at a belated stage to delay the adjudication and no case under the proviso to order 6 Rule 17 has been made out by the petitioner and, therefore, the trial court has rightly rejected the amendment application. In support of his contention, he relied upon the decision of this Court in the case of Nagar palika Dadari Versuss Trilok Chandra and others reported in 2005 Allahabad Daily Judgment 385.

Having heard the learned counsel for the parties, I have perused the order of the authorities below and the counter affidavit.

With the consent of both the parties, the writ petition is being disposed of.

Before the amendment, order 6 Rule 17 of the Code of Civil Procedure reads as follows:

"Order 6, Rule 17 C.P.C.The Court may at any stage of the proceedings allow either party to alter or amend his leadings 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.

Thereafter, by way of amendment, the following has been substituted w.e.f. 1-7-2002.

"Order 6, Rule 17 C.P.C. 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.

It is a settled law that at the time of allowing the amendment, the Court has only to look as to whether the ingredients of O.VI R. 17 are satisfied or not.   Rule 17 is very much clear. It provides that amendment can be allowed at any stage of proceedings before the commencement of trial and even after the commencement of trial. After the amendment w.e.f. 1.7.2002 in case of amendment after the commencement of trial, under the proviso, court has to be satisfied  that inspite of due diligence, the party could not have raised the matter before the commencement of trial.

Order 6, Rule 17 has been interpreted by the Hon'ble Supreme Court in various decisions and the Apex Court has given guidelines for the law Courts that the Courts while deciding such prayers should not adopt a hypertechnical view.  Aforesaid guidelines have been given by the Apex Court in B. K. Narayan Pillai V. Parameswaran Pillai (2000) 1 SCC 712; (AIR 2000 SC 614), it has also been emphasized in the aforesaid decision that technicalities of law should not be permitted to hamper the Court in administration of justice between the parties.  Amendments are allowed in the pleadings to avoid uncalled multiplicities of litigation.

In the case of Ragu Thilak D. John V. S. Rayappan reported in (2001) 2 SCC 472; (AIR 2001 SC 699).  The suit was filed against the respondent for permanent injunction restraining them from demolishing his compound wall. It has been alleged that during the pendency of the suit, respondents entered his property and demolished the wall on northern, eastern and western sides.  The appellant filed the application for amendment of the plaint including incorporation of relief of recovery of damages.  The trial Court rejected the application and the revision filed against that order was dismissed by the High Court.  The Apex Court observed as follows.

"In view of the subsequent developments, the appellant filed an application under Order 6, Rule 17 for the amendment of the plaint for adding paras 8 (a) to 8 (f) in his plaint. The trial Court rejected his prayer and the revision petition filed against that order was dismissed by the High Court vide order impugned in this appeal, mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed, as it would allegedly change the nature of the suit. It was also observed that the amendment sought was barred by limitation.

After referring to the judgment in Charan Das v. Amir Khan, (AIR 1921 PC 50), L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., AIR 1957, Ganga Bai v. Vijay Kumar, (AIR 1974 SC 1126), Ganesh Trading Co. v. Moji Ram, (AIR 1978 SC 484) and various other authorities, this Court in B.K.Narayana Pillai v. Parameswaran Pillai, (AIR 2001 SC 699) held: (SCC p.715, para 3).

"The purpose and object of Order 6, Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and  this Court. It is true that the amendment cannot be claimed as a matter or right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."

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 (1) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for."

The aforesaid decision of the Apex Court has been followed by this Court in the case of Fertilizer Corporation of India Ltd Versus M/S Prabha Kirana Stores (supra).

A Constitution Bench of the Hon'ble Supreme Court in the case pf Muncipal Corporation of Greater Bombay Versus Lala pancham and other, reported in 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 the case of Jagdish Singh Versuss Natthu Singh, reported in 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.

In the case of G.Nagamma and others versus Siromanamma and another reported in JT 1998 (4) SC 484, the Hon'ble Apex Court held that in an application under Order VI 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 the case of Vineet Kumar Versus Manga Sain Wadhera, reported in AIR 1985 SC, 817, the Hon'ble Supreme Court held that normally amendment is not allowed, the 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.

Similarly, in the case of Om Prakash Gupta Versus Ranbir B. Goyal reported in (2002) 2 SCC 256, the Hon'ble Supreme Court reiterated the same view extending the scope of Order VI Rule 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 cases, 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 VI Rule 17, C.P.C. 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 and Co. Versus R.M.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 Versus 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 the case of Muni Lal Versus Oriented Fire and General Insurance Co. Ltd., reported in 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 be entitled to grant proper relief even at the stage of appellate forum." Similar view has been reiterated in Jagdish Singh Versus Nathu Singh, AIR 1992 SC 1604.

In the case of Smt. Ganga Bai Versus Vijay Kumar reported in AIR 1974 SC 1126, the Hon'ble Supreme Court observed as under:

"The power to allow an amendment is undoubtedly wife 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 care and circumspection on the part of the Court."

In the case of M/S Ganesh Trading Co. Versus Maoji Ram reported in 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.M. Pillai Versus P. Pillai and another, AIR 2000 SC 614.

In the case of Estrella Rubber Versus Dass Estate Pvt. Ltd., reported in (2001) 8 SCC 97, the Supreme Court held that mere delay in making the amendment application is not enough to reject the application 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.

In the case of Jayanti Roy Versus Dass Estate Pvt. Ltd., reported in 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 the case of Sampat Kumar Versus Ayyakannu and another reported in 2003 (1) AWC 18 (SC): 2003 (1) SCCD 10: (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 the case of Nagappa Versus Gurudayal Singh and others reported in 2003 (1) SCCD 157: 2003 (1) AWC 694 (SC) : (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 amendment at appellate stage was allowed.

In the case of Hanuwant Singh Rawat Versus M/S Rajputana Automobiles, Ajmer reported in (1993) 1 WLC 625, Rajasthan High Court summarized 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 occrued 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 bona fides; 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 the case of Devendra Mohan and others Versus State of U.P. and others reported in 2004 (3) AWC 2162, the Division Bench of this Court on consideration of various decisions of the Apex Court held as follows:

"Thus, in view of the above, the law can be summarized 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 basis 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 pleading 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."

Section 16 (2) (b) of the amending Act, 2002 reads as follows.

"the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act."

In the case of Nagar Palika Dadri Versus Trilok Chand and others (Supra), learned Single Judge of this Court has considered the amendment and held as follows:

"Even otherwise, the amendment having been made in Rule 17 of Order 6 of the Code of Civil Procedure by the Amending Act, 2002 by adding the proviso is only with regard to the procedural aspect. The proviso adds nothing but what has already been there in practice, that the application seeking amendment in the pleading should not be allowed unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised such an issue before commencement of the trial. As such although, in my view, since the application seeking the amendment has been filed after coming into force of the Amending Act, 2002, the said provision would be applicable and the petitioner has to prove his case within the ambit of the proviso to Rule 17 of Order 6 of the Code of Civil Procedure but even if the said proviso is not taken into account, then too, the application of the petitioner deserves to be dismissed on merits and has rightly been done so by the trial court."

In the aforesaid case, the written statement was filed prior to the date of amendment, but the amendment application was moved after the commencement of the amendment and, therefore, it has been held that the amendment will apply to the application moved after the amendment. This court, however, on merit held that the amendment application was moved in the year, 2002 after the suit had been finally heard by the trial court in September, 2002 and the judgment was reserved and when the matter was re-fixed for further hearing to delay the decision of the suit. On the facts of the case, Court held that the act of the party was nothing but misuse of the process of law. In my view, the decision of the learned Single Judge is distinguishable on the facts of the present case.

In the present case, hearing has not yet been started and the reason for the delay in moving the amendment application has been explained in the amendment application itself. Court below has not recorded any finding that before moving the amendment and at the time of moving the written statement facts and the plea mentioned in the amendment application were in the knowledge and there was no due diligence on the part of the party. As held in the case of Fertilizer Corporation of India Ltd Versus M/S Prabha Kirana Stores (supra), while considering the amendment application hyper technical approach should not be taken.

In the present case, the suit for injunction has been filed on the ground that the property in dispute belongs to the plaintiff -respondent. By way of amendment, it has been pleaded that the property of the Central Methodist Church was owned and possessed by the Executive Board of M.C.I. and the plaintiff has no right, title or interest in the property in suit nor the plaintiff ever came in possession over the property in suit right from the date of the alleged sale deed dated 19.08.1966. The property covered under the alleged sale deed was not identifiable on spot since Gata No. 48 is of large area and the plaintiff claim under the alleged sale deed was confined only to 0.057 hectare and as per revenue record filed by the plaintiff himself the alleged land is situated in qasba Koil-II. Some time it forms part of Gata No.72, some time Khata No.100 and some time Khata no.84, the details of the property have been mentioned in the deed to be incorporated by way of amendment, which is necessary to decide the claim of the plaintiff respondent and, thus, in my view, the amendment sought by the petitioner is liable to be allowed.

The petitioner sought the following amendment in the written statement.

"AMENDMENT SOUGHT FOR.

3. that in the written statement after para no. 19 new paras be added as under:-

19-A That there is no post of the property Incharge in C.M.C. Aligarh nor there is any post of Father in C.M.C. Aligarh and Shri D.K.Agrawal who has been impleaded in the personal capacity is not the Bishop in present and on the post of Pastor and District Superintendent Rev. Devendra Singh is posted in Aligarh. The property of the Central Methodist Church is owner and possessed by the Executive Board of M.C.I. having its registered office at Bombay. It has got its own constitution under the name and style Book of Discipline and the suit in the present form is not legally maintainable and is bad for mis-joinder of defendants nos. 1 and 2 and non-joinder of necessary parties.

19-B. That the plaintiff has no right, title or interest in the property in suit nor the plaintiff ever came into possession over the property in suit right from the date of alleged sale deed dated 19.8.1966. The property covered under the alleged sale deed is not identifiable on spot since Gata No.48 is of large area and the plaintiff came under the alleged sale deed is confined only .057 hectare and as per revenue records filed by the plaintiff himself the alleged land is situate in Qasba Koil-II sometime forms part of Khata No.72, sometime of Khata No.100 and some times of Khata No. 84. However, it is submitted that in the alleged sale deed of the plaintiff in Eastern boundary there is clear admission of the existence of arazi sof Mission which arazi is also form part of the plot no.48  measuring 2.892 hectare.

19-C. That even as per Amin report the land of plot no.48 which is owned and possessed by the Executive Board of M.C.I. is surrounded by boundary wall having only one entrance from main G.T. Road and the building of Church also exists therein and towards Western side there exists a rasta, thereafter Melrose Factory and the sind Rasta leads to the agency to Hero Honda and from the alleged sale deed of the plaintiff it is borne out that in the Western and Southern sides there are plots no.47 and 49 and in any revenue records there has never been shown any rasta or chak road and as such it is quite obvious that the land of the plaintiff, if any, in plot no. 48 either has gone in rasta and has been encroached upon by the owners of Melrose Factory. The plaintiff has not disclosed in the plaint as to in which plot the rasta land is situate or forms part of.

19-D. That the plaintiff having not remained in possession of any point of time over the land covered under the alleged sale deed nor having exercised any right over the same, the rights, title or interest if any of the plaintiff were extinguished under the law of limitation and alleged relief for mandatory injunction is hopelessly barred by time.

19-E. That the property in suit is not an agricultural land but an old Abadi. The plaintiff has wrongly valued the same on the basis of annual lagan, the value of the land was not less than Rs.3000/- per sq. yard in the year 1998 and as per circle rate the land admeasuring 570 sq. metres  is not less than Rs. 18 lakhs and as such the suit has been grossly undervalued and court fee paid thereon is highly insufficient and upon proper valuation this Hon'ble Court will have no pecuniary jurisdiction to even try the suit."

In the result, writ petition is allowed. The impugned order dated 21.12.2002 passed by the Civil Judge, (Junior Division), Koil is set aside. Amendment application is allowed and the petitioner is permitted to incorporate the amendment. Both the parties shall appear along with the certified copy of the order before the trial court on 24.07.2006 and the petitioner to incorporate the amendment within a week thereafter. Trial Court is directed to decide the suit in question expeditiously. Petitioner will cooperate and will not delay the proceedings. However, there shall be no order as to costs.

Dated.10.07.2006

VS.


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