Chhaya Haribhau Gulhane and others v. Mohammad Yusuf Mohammad Shafi Punjani

wp282.25.odt 2/10 parties and by judgment and decree dated 06.04.2023 the suitwas decreed directing the defendants to execute the sale-deedin favour of plaintiff. Being aggrieved by this judgment anddecree the original defendants i.e. petitioners herein filedappeal under Section 96 of the Civil Procedure Code before theCourt of District Judge Darwha. During the pendency of thisappeal the appellants filed an application dated 23.08.2024under Order VI Rule 17 of the Civil Procedure Code seekingamendment of the memorandum of appeal to incorporatecertain grounds viz. Ground No.15A to 15E as mentioned in thesaid application. The respondent opposed the application byway of reply dated 30.09.2024. By order dated 15.11.2024 theAppellate Court rejected the application and the petitionershave challenged this order by way of instant petition.4.Mr. Masood Shareef, learned counsel for thepetitioners vehemently submitted that the petitioners/appellants have only sought to add new grounds to thememorandum of appeal, which could be replied by therespondent and, therefore, the trial Court ought to haveallowed the application. He submitted that in view of theprovisions of Order 41 Rule 2 of the Civil Procedure Code theappellants are entitled to raise new grounds in the wp282.25.odt 3/10 memorandum of appeal and in view of the facts andcircumstances the Appellate Court ought to have granted leaveto the appellants to amend the memorandum of appeal. Healso submitted that the controversy involved in the suit falls inthe definition of a ‘commercial dispute’ as defined in Section2(c) of the Commercial Courts Act, 2015 and the appellantswere, therefore, entitled to raise necessary grounds available toit during the course of the appeal. He, therefore, submittedthat the Appellate Court erred in considering the merits of theamendment and erroneously passed the impugned order. Insupport of his submissions he placed reliance on following caselaws :(i) State of Maharashtra vs. HindustanConstruction Company Pvt. Ltd. (2010) 4SCC 518,(ii) Harcharan Vs. State of Haryana, (1982) 3SCC 408,(iii) Chittoori Subbanna Vs. KudappaSubbanna, AIR 1969 SC 1325,(iv) M.J. Exporters Pvt. Ltd. Vs. Union ofIndia, (2021) 13 SCC 543,(v) Sugandhi (dead) by legal representativesand another Vs. P. Rajkumar representedby his power agent Imam Oli, (2020) 10SCC 706 and; wp282.25.odt 4/10 (vi) K. Lubna and others Vs. Beevi and others,(2020) 2 SCC 524.5.By referring to the position of law as laid down inthe above mentioned judgments learned counsel for petitionerssubmitted that in view of the provisions of Order 41 Rule 2 ofthe C.P.C the memorandum of appeal has to be considered likethe plaint in a suit and the appellants are, therefore, entitledfor seeking amendment to the memorandum of appeal. Hesubmitted that in view of the peculiar facts of this case sincethe dispute involved in the suit falls in the category of acommercial dispute, the appellants cannot be deprived ofraising relevant grounds and the trial Court ought to have, therefore, granted leave to the appellants to amend thememorandum of appeal6.Per contra, Mr. Firdos Mirza, learned Senior Counselappearing for the respondent strongly opposed the petition andsubmitted that there is no perversity in the impugned order, since the Appellate Court has given due consideration to theprevailing legal position while passing the impugned order. Hesubmitted that the application for amendment is filed by theappellants at the stage of final hearing of the appeal and byway of amendment, appellants are attempting to introduce wp282.25.odt 5/10 totally new case which will cause serious prejudice to the rightsof the respondent/plaintiff. He also submitted that there is nofoundation in the pleadings for the proposed amendment andthe amendment cannot be allowed on account of absence ofdue diligence on the part of the appellants. In support of hissubmissions he relied upon the judgment in the matter ofUnion of India Vs. Pramod Gupta (dead) by LRs. And others,(2005) 12 SCC 1.7.Thus, the rival issue which falls for my considerationis about legality of the order rejecting appellants’ applicationfor amendment of the memorandum of appeal. It is crucial tonote that the amendment application is filed by the appellantsat the stage of final hearing of the first appeal. The respondenthad filed the suit for specific performance of contract, on29.11.2013. The Commercial Courts Act, 2015 came into forceon 23rd October, 2015 and the parties were entitled to raise aplea about controversy being a commercial dispute inaccordance with the provisions of this Act. The application foramendment was not filed during the pendency of the suit and itis filed on 23.08.2024, only during the pendency of the appeal. Therefore, it is crucial to note that in view of the dispute raisedby way of suit, the defendant has not filed any amendment at wp282.25.odt 6/10 the first instance and the amendment is filed after theconclusion of the trial and thus it is clear that the defendantshave not exercised due diligence. Thus, if the proposedamendment as mentioned in the application seeking to raisenew grounds in the memorandum of appeal is seen, it becomesclear that the appellants want to raise issues challenging thejurisdiction of the trial Court alleging the dispute to be acommercial dispute. The crucial question, therefore, arises asto whether the amendment would cause any prejudice to theother side. A perusal of the application mentioning reasons forfiling amendment application shows that the appellants havestated that at the stage of final hearing, during the course ofstudy of the matter it was revealed that the nature of thesubject matter, constituted a commercial dispute and, therefore, the matter was required to be tried by theCommercial Court as per the provisions of the CommercialCourts Court. Only on this ground the amendment toincorporate various paragraphs in the memorandum of appealis sought. It is thus clear that no exceptional reasons arementioned to explain as to why the grounds were not raisedduring the pendency of the suit. There is thus no material onrecord to conclude that the appellants had exercised due wp282.25.odt 7/10 diligence to seek amendment before the commencement oftrial.8.Although the appellants are entitled to raise newgrounds in the appeal in accordance with the provisions ofOrder 41 Rule 2 of the Civil Procedure Code by seeking leave ofthe Court, the provisions of Order VI Rule 17 of the CivilProcedure Code and proviso also need to be given dueconsideration. Although the petitioners have heavily reliedupon provisions of Order 41 Rule 2 of the Civil Procedure Code, it has to be noted that the petitioners/appellants have failed todemonstrate any due diligence on his part in absence of anyreasons in the application for amendment. It is thus clear thatthere is no foundation in the pleadings for making proposedamendment and the proposed amendment raising issues ofjurisdiction of the Court will definitely cause serious prejudiceto the other side.9.The Judgments relied upon by the counsel for thepetitioners deal with general principles for considering theapplication for amendment and the propositions of law laiddown therein are not disputed. It is crucial to note that in thematter of State of Maharashtra vs. Hindustan ConstructionCompany Pvt. Ltd. (supra) relied upon by the petitioners the wp282.25.odt 8/10 Hon’ble Supreme Court has observed in paragraph No.36 thatnew grounds containing new materials/facts could not havebeen introduced for the first time in an appeal, in absence ofany foundation. Although it is settled position of law thatprocedural law is intended to facilitate and not to obstruct thecourse of substantive justice, as laid down in the matter ofHarcharan Vs. State of Haryana (supra) relied upon by thepetitioners, it is equally important to note in the instant matterthat allowing the amendment of memorandum of appeal willcause prejudice to the other side by introduction of totally newcase. While considering the judgment of Harcharan Vs. Stateof Haryana, (referred above), the Hon’ble Supreme Court in thematter of Union of India Vs. Pramod Gupta (referred above)made pertinent observations in paragraph Nos. 133 and 134which read thus :133. Mr. Salve submitted thatthe bar under Section 25 of the Act must beconsidered having regard to Section53 thereof which provides for applicabilityof the provisions of the Code of the CivilProcedure. The learned counsel urged thatthe respondents had already filed anapplication for amendment of memo ofappeal in terms of Order 41, Rule 3 of theCode of Civil Procedure, which having beenallowed, would amount to amendment ofthe claim application in the reference caseitself. Strong reliance in this behalf has wp282.25.odt 9/10 been placed on Harcharan Vs. State ofHaryana and Ghaziabad DevelopmentAuthority Vs. Anoop Singh.134.We do not agree. Thepleadings before the Trial Court are thebasis for adduction of evidence eitherbefore the trial court or before the appellatecourt. By amending the memo of appeal theoriginal pleadings cannot be amended. Therespondents claimants made their claimbefore the Reference Court claimingcompensation for the lands acquired undertwo different references at a certain rate. They are bound by the said pleadings. Section 53 merely provides for applicabilityof the provisions of the Code of CivilProcedure including the one containingOrder 6, Rule 17 thereof. Order 6, Rule 17of the Code of Civil Procedure postulatesamendment of pleadings at any stage of theproceedings. Before an amendment can becarried out in terms of Order 6, Rule 17 ofthe Code of Civil Procedure the court isrequired to apply its mind on several factorsincluding, viz., whether by reason of suchamendment the claimant intends to resilefrom an express admission made by him. Insuch an event the application foramendment may not be allowed. (See ModiSpg. & Wvg. Mills Co. Ltd. v. Ladha Ram &Co., Heeralal v. Kalyan Mal andSangramsinh P. Gaekwad v. Shantadevi P.Gaekwad.)10.In the backdrop of this legal position, a perusal ofthe impugned order shows that the Appellate Court has givendue consideration to the relevant factual and legal aspects. Although the Court has referred to the merits of proposedamendment, it is seen that while dealing with the case laws wp282.25.odt 10/10 relied upon by the parties, the Court has made reference tocertain aspects dealing with the issue of commercial dispute. This reference appears to have been made while dealing withthe case laws and these are not inferences on merits. However, there is no perversity in the approach of the Appellate Court.11.On consideration of the above mentioned factualand legal aspects I find no reason for indulgence with theimpugned order under Article 227 of the Constitution of India. The petition, therefore, deserves to be dismissed.12.Writ Petition is dismissed with no order as to costs. (PRAFULLA S. KHUBALKAR, J.) LATER ON :1.After the order is pronounced, learned counsel forthe petitioners makes a request for continuation of interimrelief which was granted by order dated 23rd January, 2025 forenabling the petitioners to challenge this order.2.In view of the fact that interim relief was operatingduring the pendency of this petition, same is continued for afurther period of four weeks from today. (PRAFULLA S. KHUBALKAR, J.) Wadode