Judgment · High Court · 2012

o undertake modification and construction work. The petitioner/plaintiff had so ught cancellation of this Memorandum of Agreement dated 17-03-2007 being fraudul ent and being the result of collusion of the then Secretary of the plaintiff’s a ssociation with defendant No.1 as the defendant No.2 had no authority to enter i nto such agreement. 7. Separate written statements were filed on behalf of defendant N o.1 and defendant No.2 contending the allegations, made in the plaint against th em, are false. While it is not necessary for the purpose in hand to dwell upon t he stand taken in detail, suffice it to say that a plea of limitation was set up by the defendants contending that the suit was filed in December, 2010 seekin g cancellation of Memorandum of Agreement dated 17-03-2007 after the period of l imitation had expired on 17-03-2010. It is also stated that the Agreement dated 17-03-2007 was entered into after adoption of a resolution in a meeting of the Executive Committee held on 08-12-2006. Defendant No.1 in his written statement also stated that after the Development Authority had objected to the renovation carried out by him, he had stopped the renovation work. On 12-04-2011, the plaintiff filed an application under Order 6 8. Rule 17 CPC for amendment. The relevant portion of the said application is extr acted herein below : (cid:28) 2. That there is need to add one sentence in the first paragra ph which is consistent with the same and does not change in any way the characte r of the suit. The sentence to be added at the end of the first paragraph is - (cid:28) Earlier the association was an unregistered one prior to its registration. (cid:29)

#3. That one error, which is apparent, has crept in at the last sentence of paragraph 7 at page 4 of the plaint. The present sentence reads as (cid:28) On receiving the notice the defendant No.1 stopped the construction. (cid:29) This err oneous. The sentence should correctly read as (cid:28) On receiving the notice the defe ndant No.1 stopped the construction for a while then restarted. (cid:29) A perusal of th e next paragraph, i.e. para 8 of the plaint makes it clear that the defendant No .1 continued with the construction despite notice and hence the association had to bring the matter to the notice of the Deputy Commissioner. The error crept in due to typographical error which is clear from the conjoint reading of the para graphs 7 and 8 of the plaint. This error, if not corrected makes the sentence in coherent.

#4. That this plaintiff has already stated that the defendant No. 1 was a tenant holding over. He has got a deed in his favour through fraudulent means to prolong his stay. Hence, this plaintiff is also entitled to mesne prof it and this plaintiff be kindly allowed to incorporate one prayer as (i) (a) rea ding as under- (cid:28) (i) (a) decree for mense profit for illegal occupation by defe ndant NO. 1 from such date and at such rate as the Hon’ble Court deems fit and p roper. (cid:29) 9. Objection was raised by the defendant No.1. The learned Trial Co urt by the order dated 21-06-2011 in Misc. (J) Case No. 10 of 2011, which was re gistered on the basis of the application for amendment dated 12-04-2011, rejecte d the application. 10. On 12-07-2011, the plaintiff filed another application under Ord er 6 Rule 17 CPC for amendment of the plaint. The relevant portion of the said a pplication is extracted herein below : (cid:28) That after going through the written statement of the defendan t No.2, it appears that certain typographical errors have crept in which need co rrection through amendment of the plaint-

#1. That, in the para No.3, line No.1, it is written as follows : (cid:28) Changkakoti father of the present defendant leasing to him the Cinema Hall (cid:29) the word No.1 is to be added in between the word defendant and lea sing. The correct sentence should be (cid:28) Changkakoti the father of the present d efendant No.1 leasing to him the Cinema Hall (cid:29)

#2. That, in page No.6, para No.13, Line No. 5 and 6, the words (cid:28) defendant No.2 (cid:29) is inserted by mistake and these words (cid:28) defendant No.2 (cid:29) needs to be deleted.

#3. That, in page No. 5, para No. 9, Line No. 1, the words (cid:28) awar e (cid:29) needs to be replaced by the word (cid:28) confirmed. (cid:29)

#4. That, in page No.6, para No. 12, line No.1, there is a wrong mentioning of a date as (cid:28) 28/04/2009 (cid:29) and should in fact be (cid:28) 28/04/2010. (cid:29) This date (28/04/2009) has been wrongly mentioned and in fact its mentioning in the first line gives a wrong construction of the sentence and one word (cid:28)and (cid:29) is unne cessarily appearing in the first line as the last word. All this has happened du e to (cid:28) Copy and Pasting (cid:29) feature available on a computer and while correcting pl aint directly over the computer where the petitioner/plaintiff has no contributi on. Hence, it is necessary that the date (cid:28) 28/04/2009 (cid:29) and the word (cid:28) and (cid:29) as ap pearing in the first line of the paragraph 12 be removed altogether.

#5. That, another sentence needs to be added expressing the relev ancy of 27-11-2009 clearly which is missing from there in paragraph 12. The expr ession desired to be incorporated is necessary for clear understanding of the av erments or else the averments may remain unclear. The sentence should be added a fter the first sentence and before second sentence starts reading as under- (cid:28) It is worth nothing that one member of the plaintiff organization when visited the Office of the Lakhimpur Development Authority heard that the defend ant No.2 executed some agreement in favour of the defendant No.1 but without any specific details such as date of its execution, period etc. for which letter wa s issued on 27-11-2009 by the plaintiff organization to the defendant No.1. (cid:29) 11. Separate objections were filed by the defendants opposing the sa id prayer for amendment. By the order dated 23-12-2011, the said application was also dismissed.

#12. Mr. T. C. Khatri, learned senior counsel submits that the learne d Trial Court had failed to exercise the jurisdiction vested in it by law and ha d acted with material irregularity in rejecting both the applications for amendm ent. He submits that the proposed amendments will not bring about any change in the nature and character of the suit and in no way, will prejudice the defendan ts. It is further submitted by him that trial has not started and the applicatio ns are filed bonafide and the amendments are necessary for proper adjudication of the case. 13. Mr.K.Agarwal, learned counsel for the defendant/respondent No.1 submits that this petition, clubbing together two causes of action, is not maint ainable in law. He has submitted that no explanation has been given in this peti tion as to why the rejection order dated 21-06-2011 was not challenged before fi ling of the subsequent application for amendment on 12-07-2011. He, alternativel y, submits that this Court may not take cognizance of the challenge made to the order dated 21-06-2011 in this petition. Even on merit, according to him, no am endment is required in first paragraph of the suit as prayed for in the applicat ion dated 12-04-2011 and the prayer is wholly redundant. With regard to the para graph 3 of the application dated 12-04-2011, he submits that the amendment sough t for, changes the entire complexion of the allegation and as such, the same can not be permitted. With regard to prayer for mesne profit as finding place in pa ragraph 4 of the said application, the learned counsel submits that the plaintif f is receiving rent after execution of the Agreement dated 17-03-2007 and allowi ng such a prayer, would change the nature and character of the suit. With regar d to the application dated 12-07-2002, the learned counsel submits that he has n o objection for allowing the amendment as sought for in paragraph 1. With regard to the rest of the amendments prayed, the learned counsel submits that the lear ned Trial Court was wholly justified in rejecting the prayer for amendment as th e entire attempt in the said paragraphs is to fill up lacuna in the pleadings. T he learned counsel relies upon the following judgements in support of his submi ssion : (cid:28) (i) Usha Balashahed Swami and Others-vs- Kiran Appaso Swami an d Others, reported in (2007) 5 SCC 602, (ii) Revajeetu Builders and Developers - vs- Naryayanaswamy and Sons and Others, reported in (2009) 10 SCC 84, (iii) Sta te of Madhya Pradesh -vs- Union of India and Another, reported in (2001) 12 SCC 268 and (iv) J. Samuel and Others-vs- Gattu Mahesh and Others, reported in (20 Mr. N. Deka, learned counsel appearing for the defendant/respond 12) 2 SCC 300. 14. ent No.2, endorses the submission advanced by Mr. Agarwal. In Usha Balashahed and others (supra), the Supreme Court laid d 15. own that the Court is conferred with powers, at any stage of the proceeding, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy be tween the parties. The proviso to order 6 Rule 17 CPC, however, provides that n o application for amendment shall be allowed after the trial has commenced unles s the Court comes to conclusion that inspite of due diligence, the parties could not have raised the matter before the commencement of the trial. It is reiterat ed that a prayer for amendment of the plaint and a prayer for amendment of the w ritten statement stands on different footing. Addition of a new ground of defenc e or substituting or altering a defence or taking inconsistent pleas in the wr itten statement would not be objectionable, while adding, altering or substituti ng a new cause of action in the plaint may be objectionable. It is laid down tha t admission in the written statement can be explained by way of amendment and it is also permissible to add a rider and/or proviso to the admission while keepin g the admission intact. In the case of amendment of a written statement, the Cou rts can be more liberal in allowing an amendment than that of a plaint as the qu estion of prejudice would be far less in the former than in the latter case. 16. In Revajeetu Builders and Developers (supra), the Supreme Court laid down some basic principles that ought to be taken into consideration whil e allowing or rejecting an application for amendment and the same are as follows : (cid:28)(1)whether the amendment sought is imperative for proper and effective adjudi cation 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 litig ation; (5) whether the proposed 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 th e amended claims would be barred by limitation on the date of application. (cid:29) Supreme Court also pointed out that those principles are only il lustrative and not exhaustive. 17. In the case of State of Madhya Pradesh (supra), the Supreme Cour t reiterated the principles laid down in Revajeetu Builders and Developers (supr a). It is also highlighted that Court should try the merits of the case and con sequently, should, allow all amendments that may be necessary for determining th e real question in controversy between the parties provided that it does not cau se injustice or prejudice to the other side. 18. In J. Samuel and Others (supra), the Supreme Court stated that t he term typographical error is defined as a mistake made in the printed/typed materials during a printing/typing process and that the term includes errors due to mechanical failure or slips of hand or finger, but usually excludes errors o f ignorance. It is also held that the act of neglecting to perform an action whi ch one has an obligation to do cannot be called as typographical error. 19. The instant application before this Court was filed on 28-03-2012, after almost nine months from the date of passing of the order dated 21-06-2011 in th e application for amendment filed on 12-04-2011. After the said application was rejected, the plaintiff filed another application on 12-07-2011 which came to b e rejected by the order dated 23-12-2011. Both these orders have been assailed i n this petition. There is not even an attempt on the part of the petitioner/plai ntiff to show as to why the order dated 21-06-2011 was not assailed at an earlie r point of time and it appears to this Court that the petitioner/plaintiff has a ssailed the said order as if on second thought as a gamble, as it intended to a ssail the order dated 23-12-2012. Subsequent action of the plaintiff in filing a nother application for amendment on different grounds without first challenging the said order dated 21-06-2011 clearly disentitles the petitioner/plaintiff to challenge the order dated 21-06-2011 subsequently. The applications for amendme nts filed by the plaintiff sought distinct and separate amendments and, therefor e, rejection of each of the applications provides for separate causes of action, which cannot be clubbed together in a single petition. In that view of the matt er, while not dismissing the application as not maintainable, this Court is not inclined to examine the legality or otherwise of the order dated 21-06-2011 and as such the challenge made to the said order fails. 20. The pleading in the second application dated 12-07-2011 for amen dment of the plaint rests on typographical errors as also clarification of the s tatements made in the plaint. The proposed amendment as prayed for in paragraph 5 seeks to explain the occasion to write the letter dated 27-11-2009, in parag raph 12 of the plaint. The list of documents annexed with the plaint shows that letters dated 27-11-2009 and 28-04-2010 were filed. This particular prayer for amendment was not specifically considered by the learned Trial Court. However, the learned Trial Court opined generally that the defendants are entitled to r elief which has accrued to the defendants due to negligence of the plaintiff. 21. In the leading case of Cropper -vs- Smith, reported in (1884) 2 6 Ch D 700 (CA), Browen, L.J had laid down the object underlying amendment of pleadings in the following words : (cid:28) .... it is a well-established principle that the object of cou rts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.... I know of no kind of error or mistake which, if not frau dulent or intended to overreach, the court ought not to correct if it can be don e without injustice to the other party. Courts do not exist for the sake of disc ipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.... It seems to me that as soo n as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anyth ing else in the case is a matter of right. (cid:29) 22. Assuming that there was negligence of some kind in not pleading the same when the suit was filed, in the facts of the case, it cannot be said that the amendments had been sought for by way of a fraudulent motive or that the same will cause prejudice to the defendants. In view of the above, amendmen t sought for in paragraph 5 of the application dated 12-07-2011 is allowed. 23. With regard to amendment sought for in paragraph 4 of the applic ation, the learned Trial Court has accepted the argument of the defendants that the mentioning of application dated 28-04-2009 is a lacuna in the plaint and all owing deletion of the same along with the word ’and’ would change the contents of the plaint. This Court is unable to accept the reasoning of the learned Tria l Court. The plaintiff has not indicated the letter dated 28-04-2009 in the list of documents submitted along with the plaint and it appears to the Court that a s a result of not giving due attention, the mistake had occurred. Though 28-04-2 010 and 28-04-2009 are two different dates, it would appear that the same was a result of typographical error coupled with error arising out of ’copying and pas ting’ as stated by the petitioner/plaintiff. Deletion of the date ’28-04-2009’ and the word ’and’ will not, in any way, change the character of the suit and w ill not in any way cause prejudice to the defendants. As this Court has held tha t the amendments as prayed for in paragraphs 4 and 5 of the application dated 12 -07-2011 are required to be allowed, necessarily the word ’aware’ is to be repla ced by the word ’confirmed’ as prayed for in paragraph 3 of the application, as otherwise, the same will not portray the correct picture. 24. The defendant No.2 in his written statement had stated that he c ontinued as Secretary of the plaintiff’s Association till 24-05-2007. The amendm ent in paragraph 2 of the application dated 12-07-2011 relates to deletion of t he word ’defendant No.2’. The said word ’defendant No.2’ was used in the context of payment of rental since Durga Puja of 2008 which the then Secretary of the p laintiff Association had accepted. On his own showing, the defendant No.2 cease d to be Secretary in 2008. The same being an apparent mistake, for fair adju dication of the case, the word ’defendant No.2’ requires to be deleted. As noted earlier, the amendment sought for in paragraph 1 of the application dated 12-07 -2011 is not opposed by the learned counsel for the respondents/defendants. 25. In the result, the impugned order dated 23-12-2011 is set aside and quashed. The amendments, as sought for in the application dated 12-07-2011, are allowed subject to payment of cost of Rs. 10,000/- (Rupees ten thousands) on ly to be deposited by the plaintiff before the learned Trial Court. 26. al Court on 27-09-2012 and the cost shall be deposited on that date. 27. The parties to the proceeding will appear before the learned Tri The petition is partly allowed.