Deo Narain v. Bindeshwar Mahto

2. The challenge to the impugned order is mainly on the ground that learned Court below, without recording any finding that such amendment was necessary for the purpose of determining the real question in controversy between the parties, 2 allowed the petition for amendment of the plaint at belated stage of appeal. The contention of the petitioner is that the amendment as allowed will lead to a de novo trial, without there being any specific finding recorded by the Court below that such amendment was absolutely necessary for the purpose of determining the real question in controversy. My attention has been drawn to the impugned order to demonstrate that the Court below did not even consider the relevance of the amendment, which respondent first set sought to introduce at such belated stage.

3. Learned counsel for the petitioner has placed reliance upon certain judgments of the Supreme Court in support of the plea that this is a condition precedent for permitting an amendment to be allowed that such amendment is necessary for determining the real question in controversy. Special reference has been made to the following judgments:- “1. (2009) 10 SCC 84( Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others)

2. ( 2006) 4 SCC 385(Rajesh Kumar Aggarwal Vs. K.K. Modi)

3. (2011) 1 2 SCC 268( State of Madhya Pradesh Vs. Union of India and ors) 3

4. He has further submitted that by way of amendment respondent first set wants to introduce completely new case which is not permissible at such belated stage.

5. Learned counsel appearing on behalf of the respondent first set, on the other hand, while supporting the impugned order contends that there is no illegality in the impugned order. The Order VI Rule 17 of the Code confers wide discretion upon the Court to permit amendment of pleadings at any stage and if such amendment has been allowed to be made by the Court below, the same should not be interfered with in a proceeding under Article 227 of the Constitution of India particularly, as the order cannot be said to be patently illegal or perverse. He submits that the Court below rightly allowed the amendment to be introduced keeping in view the peculiar condition of the plaintiff/respondent first set and necessity of such amendment for just adjudication of the case. He has placed reliance upon following judgments of this Court in support of his contention:- “1. 2007(3) PLJR 165( Gopal Kumar Modi Vs. Lalan Pd. Keshri)

2. 2007 (3) PLJR 778 ( Balram Medical Hal vs. Rajendra Prasad) and 4

3. Unreported judgment dated 22.2.2012 passed in CWJC No. 9708 of 2011.

6. On bare perusal of the impugned order, it will appear that the appellate Court has absolutely not dealt with as to how such amendment was essential at that belated stage for the purpose of determining the real question in controversy between the parties. The only reasoning assigned for permitting the amendment to be made is that the petitioner learnt about the fact at the time of argument in the appeal and therefore, such amendment should be allowed keeping in mind the mental, physical and economic condition of respondent first set/appellant. The appellate Court had the opportunity of perusal of the entire records of the case and was required to discuss the necessity of such amendment in the plaint at such belated stage with reference to the evidence/material already available on record. I find substance in the submission made on behalf of the petitioner in this regard.

7. The Supreme Court in Case of Revajeetu Builders and Developers vs. Narayanaswamy and sons and others reported in (2009) 10 SCC 84, dealing with Order VI Rule 17 of the Code held in paragraph 58 as follows:- “58. The first condition which must be satisfied before the amendment can be allowed by the Court is whether such amendment is necessary for the determination of the real question in 5 controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts‟ discretion in amendment.” refusal

8. The Apex Court further held, while laying down the factors to be taken into consideration while dealing with an application for amendment that the Court must take into consideration whether the amendment sought is imperative for the purpose of proper adjudication of the case. Similarly in case of Rajesh Kumar Aggarwal V. K.K. Modi reported in ( 2006) 4 SCC 385, the Supreme Court held that it is primary duty of the Court to decide whether such amendment is necessary for determination of real dispute between the parties. Similar view has been taken in another judgment reported in case of State of Madhya Pradesh vs. Union of India and ors. Reported in ( 2011) 12 SCC 268. This is more so, in my opinion, when an amendment is sought to be introduced in the plaint at the appellate stage before final argument.

9. So far as the judgment on which reliance has been placed by learned counsel for the respondent first set is concerned, this is to be noted that in case of Gopal Prasad Modi vs. Lalan Prasad Keshri and others, this Court has held that all amendments are generally permissible if they are necessary for 6 determination of real controversy between the parties in the Suit. This Court thus in case of Gopal Pd. Modi vs. Lalan Prasad Keshri reiterated that there must exist a condition that such amendment is necessary for determination of real dispute between the parties. The judgment of this Court in case of Balram Medical Hall vs. Rajendra Prasad is based on different sets of fact. In the present case, this Court in a proceeding under Article 227 of the Constitution of India is considering a situation where amendment has been allowed to be made in plaint at the stage of final argument in appeal and the amendment is of such nature that it will lead to a de novo trial. In this situation, particularly, the Court below had the duty to record that such amendment was imperative for resolving real controversy in question between the parties, with reference to the material available on record before the Court. While allowing such amendment petition, the Court was also required to record that amendment at such belated stage would not have prejudiced the cause of the petitioner/defendant. In my opinion, the Court while exercising discretion vested in it, failed to discharge its obligation to record in the order as to how the amendment sought was essential for determination of real question in controversy. The impugned order therefore, cannot be sustained and accordingly, the order dated 21.01.2012 passed in 7 Title Appeal No. 63 of 2008 by learned Fast Track Court No.I, Samastipur is set aside. The matter is remanded back to the Court to consider the application dated 30.06.2011 for amendment of plaint filed by respondent first set, afresh. If the Court finds it necessary that such amendment should be allowed for determining the real question in controversy, the Court must record its reason in this regard.

10. This application is accordingly, allowed.

11. It is expected that the Court below shall consider said application under Order VI Rule 17 of the Code and dispose it of expeditiously. (Chakradhari Sharan Singh, J) Arun Kumar/-