Baleshwar Singh v. Ajay Prasad & Ors.

5. The plaintiff resisted and filed an application stating therein that the evidences of both the parties have been closed. 3 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 Even arguments of both sides have been also closed. The proposed amendment can not be allowed in view of proviso added to under Order 6 Rule 17 of the Code of Civil Procedure. The plaintiff in his plaint has already stated that he has got 5 ½ decimals in plot no.313 by oral exchange from Ram Nath Sngh and has also adduced oral evidence which was within the knowledge of the defendants. If the proposed amendment will be allowed, it would change the entire facts of the case.

6. The court below after considering the rival contention of the parties has allowed the amendment petition holding that the proposed amendment would not have any material change. From the order of the court below, it appears that the court below has not considered the effect of proviso added to under Order 6 Rule 17 of the Code of Civil Procedure by the Amendment Act 2002. The suit has been filed in the year 2004 and as such the amendment of 2002 made in the Code of Civil Procedure in Order 6 Rule 17 of the Code of Civil Procedure will be applicable. To find out the true effect of the amendment it is necessary to examine the scope of Order 6 Rule 17 of the Code 4 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 of Civil Procedure before the amendment and its scope after enforcement of the Act. Before the Amendment Act 2002 the provisions of Order 6 Rule 17 of the Code of Civil Procedure are as follows: “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.”

7. It is apparent from the amendment portion of the aforesaid provision that was no proviso was available before the amendment but after enforcement of 2002 amendment the position of Order 6 Rule 17 of the Code of Civil Procedure is as follows: “17. Amendment of pleading.- 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 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.” that no application

8. From the analysis of the post amendment of Order 6 Rule 17 of the Code of Civil Procedure it appears that the 5 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 parties will have a long play in getting the amendment before the trial has commenced but in a situation where the trial has commenced the legislature has restricted the power of amendment. The amendment would not be allowed unless the court comes to a conclusion that in spite of due diligence the parties could not have raised the matter before commencement of the trial. So in this way this provision has been split up in two parts. First part pre trial period and another part is when the trial has commenced. In pre trial stage the legislature has given ample power to the court to allow the parties to amend the plaint or written statement. The rider has been provided that the proposed amendment may be necessary for the parties for determining the real question in controversy between the parties but could not amended before commencement of trial inspite of due diligence.

9. The position of law in the matter of amendment after commencement of the trial has been considered by the Hon’ble Supreme Court and this Court in the following judgments:

1. Pradeep Singhvi and another Vs. Heero Dhankani and others, reported in (2004) 13 SCC 432

2. Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others, reported in (2006) 4 SCC 385 6 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012

3. North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by Lrs., reported in (2008) 8 SCC 511

4. Raj Kumar Gurawara (Dead) through Lrs. Vs. S.K. Sarwagi and Company Private Limited and Another, reported in (2008) 14 SCC 364

5. P.A. Jayalakshmi Vs. H Saradha and others, reported in (2009) 14 SCC 525

6. Sayed Hasibuddin Vs. Syed Md. Akram Hussain, reported in 2007(1) BBCJ 152

7. Sanjay Kumar V. State of Bihar & Ors., reported in 2011(4) PLJR 515

8. State of Madhya Pradesh Vs. Union of India and another, reported in (2011) 12 SCC 268

9. J. Samuel and others Vs. Gattu Mahesh and others, reported in (2012) 2 SCC 300

10. For coming to a right conclusion it is necessary to examine the aforesaid judgments. One of the relevant judgment is in the case of Pradeep Singhvi (supra) where the Hon’ble Supreme Court has held that the proposed amendment would not have effect either drastically altering nature of defence nor withdrawing admission made earlier by defendants. The Court has discretion to permit amendment at any stage of the proceedings such amendment in the pleadings as would be necessary for the purpose of determining the real 7 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 questions in controversy between the parties. It will be relevant to quote paragraph nos. 3 and 4 of the said judgment: “3. We have heard the learned counsel for the parties. We do not find merit in the submission made on behalf of the respondents that the proposed amendment would have had the effect of drastically altering the nature of the defence or withdrawing an admission made earlier by the defendants. Under Order 6 Rule 17 CPC, the court has discretion to permit at any stage of the proceedings such amendment in the pleadings as would be necessary for the purpose of determining the real questions in controversy between the parties.

4. Of course, by the time the defendants moved an application for amending the written statement, the trial had commenced but the proposed amendment, if allowed, would not have irreparably prejudiced the plaintiffs. At the most, the plaintiff would have been re-examined. We do not think that the trial court was justified in refusing the prayer for amendment in written statement which would have the effect of excluding the defendants from raising a plea material for their defence.”

11. In another judgment in the case of Rajesh Kumar Aggarwal (supra) it has been held that the rule declares that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendment should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed 8 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 after the trial commenced, unless the court comes to the conclusion that in spite of due diligence the party could have not raised the matter for which amendment is sought before the commencement of the trial. It has been held that the object of the rule is that the courts should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. It will be apt to quote paragraph 16, 17 and 18. of the aforesaid judgment: “16. Order 6 Rule 17 consist of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 17. …… We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 18. ……. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity 9 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.”

12. So this judgment only gives an idea if the court feels amendment is necessary and essential for the justice in that circumstances power of amendment should be exercised in larger interest doing full and complete justice between the parties before the Court and this case has considered several earlier judgments of the Hon’ble Supreme Court.

13. In this case the Hon’ble Supreme Court has opined that while deciding the issue of amendment the courts should not adopt a hypertechnical approach rather the Court should follow the liberal approach particularly in a case where the other side can be compensated with costs. It has been further held that 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.

14. In another judgment in the case of North Eastern Railway Administration (supra) the Hon’ble Supreme Court has considered the scope of amendment after the enforcement of 2002 Act where the Court has held that while disposing of 10 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 the amendment petition the Court should keep in minds two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as it the pleadings had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

15. In another judgment in the case of Raj Kumar Gurawara (supra)where the Hon’ble Supreme Court has also considered the effect of amendment made in the Code of Civil Procedure. The Hon’ble Supreme Court has held that 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 necessary for the purpose of determining the real questions in controversy between the parties. The court has classified the amendment on two parts. Pre-trial amendment and amendment after commencement of the trial. In pre-trial amendments the court has said that it should be allowed liberally. In a later case after the commencement of the trial particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and as such it is 11 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 incumbent on the part of the court to satisfy the conditions prescribed in the court below and in paragraph 18 the Hon’ble Supreme Court has held as follows: “18………It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge.”

16. In the case of P.A. Jayalakshmi (supra) the Hon’ble Supreme Court has held that the Court should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order 6 Rule 17 being one of them. In the case of North Eastern railway Administration (supra) the law has been laid down by this Court in the following terms: “16. Insofar as the principles which govern the question disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these granting 12 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the filed , it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.” But in the case of P.A. Jayalakshmi (supra) in paragraph 15 while considering the application of proviso of Order 6 Rule 17 of the Code of Civil Procedure the Hon’ble Supreme Court has held as follows: “ 15…… It is couched in a mandatory form. The Court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. * * * 19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction, in a case of this nature jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” limited. Thus, unless 13 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012

17. In another judgment in the case of Sate of Madhya Pradesh (supra) the Hon’ble Supreme Court has considered the earlier judgments of the Hon’ble Supreme Court and the effect of proviso added by the Amendment Act 2002 and has culled out the principle for deciding the issue of amendment of pleading in the following terms: sought the amendment “(1) whether imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” propose This judgment put emphasis by and large that if the amendment does not cause any prejudice to the other side which can not be adequately compensated in terms of money, it should not fundamentally changes the nature and character of the case and as a general rule the court should not decline amendments if a fresh suit on the amended claims would not 14 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 be barred by limitation on the date of application. Further it has been held that amendment should be both in the interest of justice and for the purpose of determination of real question in controversy between the parties.

18. In a recent judgment in the case of J. Samuel (supra) the Hon’ble Supreme Court has considered the proviso the effect of Order 6 Rule 17 of the Code of Civil Procedure. In paragraph 23 of the said judgment the Hon’ble Supreme Court has held that in deserving cases, the Court in allowing the delayed amendment by compensating the other side by awarding costs. The entire object of amendment to Order 6 Rule 17 of the Code of Civil Procedure as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that parties had sufficient knowledge of other’s case. In this case the court has considered the` meaning of “due diligence” and the court has held that the meaning of due diligence is “the reasonable investigation is necessary before certain kinds of relief are requested.” Due diligent efforts are requirements for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. The term due diligence is specifically used in the Code to provide a test for 15 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 determining whether to exercise the discretion in situations of requested amendment after the commencement of the trial. The Hon’ble Supreme Court has further held that term due diligence the scope of a party’s constructive knowledge, claim and is very critical to the out come of the suit. The Hon’ble Supreme Court has further held that mistake committed certainly does not come within the purview of a typographical error. This case considered the claim of typographical error where the court has rejected the claim and has held that the claim of typographical mistake is baseless and the explanation was not accepted. In the case the amendment sought for was not allowed. This court has also considered the scope of amendment after coming into the effect of Amendment Act,

19. The Court in the case of Sanjay Kumar (supra) held that the proviso added to Order 6 Rule 17 of the Code of Civil Procedure has been couched in the mandatory form and further held that once the trial has been commenced jurisdiction of the court to allow seeking amendment is taken away unless the conditions precedent thereto stands satisfied. It is better to quote paragraph 18 of the said judgment: “18. The judgments relied upon by the learned counsel for the petitioner is very 16 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 that once trial has started, explicit on the issue, that the proviso to Order 6 Rule 17, has been couched in a mandatory form jurisdiction of the Court to allow application seeking amendment, is taken away unless the conditions precedent thereto stands satisfied and for which the Court has to come to a conclusion that despite due diligence the parties could not have raised the matter before the commencement of the trial.”

20. The Court has held that the proviso added in the order 6 Rule 17 of the Code of Civil Procedure is mandatory in nature and as such the amendment will be decided keeping in mind the provision relying in the judgment of the Hon’ble Supreme Court in the case of Sayed Hasibuddin (supra). It will be relevant to quote paragraph 4 of the said judgment: “4. The said proviso has been added in the year, 2002 by Code of Civil Procedure Amendment Act, 2002 and it came into force with effect from Ist July, 2002. The onus is now on the parties seeking the amendment to satisfy the Court that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In other words, amendments are not to be allowed merely because they are clarificatory in nature or trial has removing any ambiguity after commenced. There is a drastic change in the powers of the Court to consider and allow amendments once trial has commenced. The validity of this amendment was challenged before the Apex Court along with validity of various other provisions of the Amendment Act bringing about various changes in the Code of Civil Procedure. This included a challenge to Order 8 Rule 1 of CPC as well which deals with the new filing of written statement by 17 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 Amendment Act. A time limit was provided for filing written statement. Courts were taking a view that the provisions are mandatory and, therefore, a written statement filed after the period prescribed could not be accepted. Both provisions of Order 6 Rule 17 proviso and Order 8 Rule 1 were challenged and the Apex Court considered both the provisions. So far as Order 6 Rule 17 provision is concerned, its validity was upheld and it was not laid down or explained in any manner rather it was held that it was a provision litigation. While considering the latter provision that is Order 8 Rule 1, the Apex Court held that the said provision, though couched in a mandatory sense, is directory in application. This is what was not said so far as Order 6 Rule 17 proviso is concerned. The said decisions have since been reported in (2005)4 SCC 480, (2005) 6 SCC 705, 344, (2004) 6 SCC 415.” shorten

21. On the analysis of the aforesaid judgment in the opinion of this Court the following propositions are involved. Under Order 6 Rule 17 of the Code of Civil Procedure the Court has discretion to permit amendment at any stage of the proceedings such amendment in the pleadings as would be necessary for the purpose of determining the real questions in controversy between the parties. The Court has to keep in mind the amendment may not cause irreparable prejudice to the other side. It is well know principle of law that rule of amendment is based on essentially on rule of justice, equity and good conscience and the power of amendment should be 18 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 exercised in the larger interest of doing full and complete justice to the parties. The court has to keep in mind that the amendment may not cause any injustice to the other side rather amendment is necessary for the purpose of determining of real questions in controversy between the parties and amendments should be refused only where the other party could not have been placed in the same position as if the pleading had been originally correct and the amendment would cause him as injury which could not be compensated in terms of money. The Hon’ble Supreme Court has defined prohibited area whether the amendment should be refused, first, when the nature and character of case would be changed by permitting the amendment and when the amendment would result in introducing the new cause of action barred by limitation and intends to cause prejudice the other party and when allowing amendment application would defeat the law of limitation. Proviso has role which has been couched in its mandatory form but court, while exercising power of amendment should keep in mind the principle that technicalities should not defeat the justice. The justice demands such amendment, procedural technicalities should not come in way. It is well known 19 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 principle of law that procedural law is hand made can not be mistress of justice.

22. Let us examine the nature of amendment in the present case. The court below while allowing the amendment petition has considered the nature of amendment and has recorded that if the amendment will be allowed the same will not cause any prejudice to the other side. From the amendment petition it appears that the plaintiff wants to make the facts clear as to how the oral partition has taken place and has given details of plot and area. It has been stated that the amendment will make the case of defendants more clear. This Court finds that recording of finding of the court below can not be said to be illegal and against to any principle of law of the amendment. As this Court has already stated that though there is proviso of Amendment Act 2002. The proviso has been added with a view to shorten the litigation but if the justice demands then in that circumstance it is primary duty of the court to see that the parties should be allowed to place on his cards so that the court can come to a right conclusion. The amendment of the plaint or written statement is nothing but an advance notice to the other party and if so required the party can file in reply either in the nature of additional amendment 20 Patna High Court CWJC No.19972 of 2011 (5) dt.13-07-2012 to the plaint or amendment to the written statement.

23. Accordingly this Court does not find any error in the impugned order and this writ petition is dismissed. As the Court below has already awarded the cost of Rs.1000/- as compensation the court feels that instead of Rs.1000/- it should have been Rs.2500/- and the order dated 25.8.2011 is modified to the aforesaid extent. Vinay/- (Shivaji Pandey, J)