Ram Mahto v. The State of Jharkhand & Anr.

For the Petitioner : Mr. M.P. Sinha, Advocate For the Respondents : Mr. Kalyan Banerjee, Advocate /18.12.2012: Petitioner, by way of filing the present writ petition, under Article 227 of the Constitution of India, has prayed for issuance of an appropriate writ/ order/ direction for quashing the order dated 11.03.2010, passed by the learned Sub-Judge-VI, Dhanbad in T(P) S No.74 of 2004, whereby the petition, filed by the respondent No.2, under Order-6, Rule-17 of the C.P.C. , has been allowed. Heard the learned counsels for the petitioner as well as the respondents and perused the impugned order and other papers annexed to this petition. Learned counsel for the petitioner submitted that the said petition, filed by the respondent No.2, was not maintainable and barred by limitation but without appreciating this fact, learned court-below has allowed the petition filed by the respondent No.2. As against that, learned counsel for the respondents submitted that court-below has not committed any irregularity or illegality in passing the said order.

Learned counsel for the respondents submitted that his case is supported by the judgment of the Hon'ble Supreme Court, reported in 2008(3) JCR 26 (SC). Learned counsel for the respondents has placed reliance on para-14 of the said judgment in support of his submission, which reads as under: “14. Before parting with this judgment, we may deal with the submission of the learned counsel for the respondent that the application for amendment could not be allowed inasmuch as the same was barred by limitation. We are unable to accept this contention of the learned counsel for the respondents. In this regard, we may observe that the Court may, in its discretion, allow an application for amendment of the plaint even where the relief sought to be added by amendment is allegedly barred by limitation. This view was also expressed by this Court in Pankaja and another v. Yellappa (Dead) by LRs and others, (2004) 6 SCC 415.

In that decision, it was held that there is no absolute rule that in such a case, the amendment should not be allowed and the discretion of the Court in that regard depends on the facts and circumstances of the case and such discretion has to be exercised on a judicious evaluation thereof. It was further held in that decision that an amendment, which subserves the ultimate cause of justice and avoids further litigation, should be allowed. It is well settled by a catena of decisions of this Court that allowing and rejecting an application for amendment of a pliant is really the discretion of the Court and amendment of the plaint also should not be refused on technical grounds. In this connection reliance can be placed on a decision of this Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267. In paragraph 8 of the said decision this Court observed that

since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date which it was originally instituted.

A reading of this observation would amply clear the position that no question of limitation shall arise when misdescription of the name of the original plaintiff or misdescription of the suit property arose in a particular case.

Apart from that in the present case, although, the relief claimed before as well as after the amendment remained the same i.e. a decree for specific performance of the contract for sale, even then, in the facts and circumstances of the present case, as noted hereinearlier, we do not find why the High Court should have interfered with the discretion used by the trial Court in allowing the application for amendment of the plaint.” It appears that the amendment application, filed by the respondent No.2, under Order-6, Rule-17 of the C.P.C., has been allowed with the observation that narrations were made by the plaintiff in the plaint but in the prayer clause, prayer was not incorporated and the amendment appears to be formal in nature and that is why the court-below allowed the same. It appears that the other side is not going to be prejudiced in any manner in the trial as the other side will get an opportunity to file additional written statement with regard to amendment in question.