Gorakhpur versus Bhagwan Das (Dead) By vs Sanjeev Builders Private Limited & Another

Revisionist :- Pawan Kumar Singh And Another Opposite Party :- State Of U.P. Thru. D.M., Balrampur And Another Counsel for Revisionist :- Amol Kumar Srivastava,Shivanshu Mishra Counsel for Opposite Party :- C.S.C. Hon'ble Manish Mathur,J.

1. Heard Mr. Amol Kumar Srivastava, learned counsel for revisionists and learned State Counsel for opposite parties.

2. Civil revision under Section 115 of the Code of Civil Procedure has been filed challenging order dated 30.09.2024 passed in Civil Appeal No.21 of 2022 instituted by original plaintiff whereby application for amendment under Order 6, Rule 17 of the Code of Civil Procedure preferred at the first appellate stage seeking amendment of plaint has been rejected.

3. Learned counsel for revisionists submits that the original plaintiff, Smt. Laxmi Devi instituted Original Suit No.1 of 2019 seeking a declaration with regard to civil death of her husband Dinesh Kumar Singh on the ground that her husband has been missing for the past seven years since 01.09.2011.

4. The aforesaid suit was dismissed by means of judgment and decree dated 26.09.2022 primarily on the ground that it was not maintainable in view of proviso to Section 34 of the Specific Relief Act read with Section 9 of the Code of Civil Procedure and Sections 107 and 108 of the Indian Evidence Act inasmuch as no further relief to which the plaintiff was entitled has been sought except for a mere declaration.

5. It is submitted that Civil Appeal No.21 of 2022 was thereafter preferred in which the amendment application was preferred and has been rejected by means of impugned order.

6. Learned counsel for revisionists submits that the first appellate court has erred in rejecting the application for amendment inasmuch as it is settled law that amendment of plaint is permissible at any stage of proceedings. It is also submitted that the amendment so sought was in fact being made only to rectify an alleged error pertaining to maintainability of suit. He has therefore submitted that the first appellate court has erred in recording a finding that a new cause of action was sought to be introduced as a relief at the first appellate stage. Learned counsel has placed reliance on following judgments:- (i) North Eastern Railway Administration, Gorakhpur versus Bhagwan Das (Dead) By LRS. reported in (2008) 8 Supreme Court Cases 511; (ii) Life Insurance Corporation of India versus Sanjeev Builders Private Limited & Another reported in (2022) 16 Supreme Court Cases 1; (iii) Raeesa Bano versus Tabassum Jahan & Ors. reported in 2024 SCC Online All 2310.

7. Learned State counsel has refuted submissions advanced by learned counsel for revisionists with the submission that the proviso to Section 34 of Specific Relief Act read with Section 9 of the Code of Civil Procedure and in terms of Sections 107 & 108 of the Evidence Act clearly barred not only the suit but also the amendment so sought which even otherwise was being sought to be incorporated at the first appellate stage. It is submitted that the first appellate court has rightly recorded a finding that the original suit being only for a declaration of plaintiff's husband as deceased did not contain any further relief which the plaintiff was able to seek and therefore has rightly been rejected. It is also submitted that the amendment sought to be incorporated would arise a new cause of action, thereby changing the nature of original suit and therefore cannot be permitted.

8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the factual aspects as indicated hereinabove are admitted. The original suit has been preferred only for a declaration of civil death of the husband of original plaintiff and the same was dismissed by means of judgment and decree dated 26.09.2022 primarily on the ground that it was barred in terms of proviso to Section 34 of the Specific Relief Act inasmuch as further relief as the plaintiff was able to seek, had not been sought.

9. It appears that in order to remedy the aforesaid defect as indicated by trial court, the plaintiff filed application for amendment at the first appellate stage, which has also been rejected primarily on the ground that it seeks to incorporate a fresh cause of action and does not indicate any fresh aspect necessary for decision of appeal.

10. From material on record, particularly a copy of plaint brought on record, it is quite evident that the suit was filed only seeking a declaration of death of the plaintiff's husband. The aspect as to whether the suit was maintainable or not in terms but proviso to Section 34 of the Specific Relief Act is an aspect required to be considered by the first appellate court and cannot be a point of adjudication in the present revision.

11. However, it is evident from the amendment application that the amendment so sought pertained to the aspect that the plaintiff is the successor of Dinesh Kumar Singh and may be declared as such after declaration of civil death of said person.

12. It is evident from a copy of the judgment and decree passed by trial court that suit preferred by original plaintiff has been rejected primarily on the ground that no further relief apart from a declaration of death has been sought. It was probably to remedy such a finding that the application for amendment was preferred at the first appellate stage.

13. In the considered opinion of this Court, once the suit had been filed seeking declaration of death of the plaintiff's husband, the amendment so sought would not in any manner change the nature of suit since it would amount to seeking a prayer consequential to the original prayer.

14. Hon'ble the Supreme Court in the case of Bhagwan Das (supra) has held that provisions of Order 6, Rule 17 of the Code of Civil Procedure postulates amendment of pleadings at any stage of the proceedings and are required to be allowed to satisfy the twin conditions that firstly, it does not work injustice on the other side, and secondly, of being necessary for the purpose of determining the real questions in controversy between the parties. It also holds that amendment 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 cannot be compensated in costs. The relevant portion of the judgment is as follows:- "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these 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; AIR 1957 SC 363 which still holds the field, 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. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar(1990)1 SCC 166.)"

15. The aforesaid enunciation of law has thereafter also been followed by Hon'ble the Supreme Court in the case of Life Insurance Corporation of India (supra) that all amendments are to be allowed which are necessary for determining the question in controversy provided it does not cause injustice or prejudice to the other side. The said proposition has been held to be mandatory. The judgment also indicates that a prayer for amendment is to be allowed for effective and proper adjudication of controversy between the parties and to avoid provided the multiplicity of proceedings, amendment does not result in injustice to the other side or seeks to withdraw any clear admission made by the party which confers a right upon the other side or is barred by limitation.

16. The aforesaid judgments and proposition of law are clearly applicable in the present facts and circumstances of the case since the amendment application has not been refused on the ground that it would perpetuate injustice upon other side or that it is barred by limitation. On the contrary, the application has been rejected only on the ground that it would introduce a fresh cause of action.

17. As already indicated hereinabove, in the considered opinion of this Court, once the original suit had been filed seeking a declaration of death pertaining to the plaintiff's husband, the amendment so sought pertaining to declaration of rights of the wife being the original plaintiff, would only be a concomitant to the initial prayer made and would thus not introduce any new plea or cause of action.

18. In view of aforesaid, finding recorded by the impugned order dated 30.09.2024 passed in Civil Appeal No.21 of 2022 being against proposition of law is hereby set aside.

19. Resultantly, civil revision succeeds and allowed. Parties to bear their own cost. Order Date :- 22.1.2025 Subodh/- SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

Revisionist :- Pawan Kumar Singh And Another Opposite Party :- State Of U.P. Thru. D.M., Balrampur And Another Counsel for Revisionist :- Amol Kumar Srivastava,Shivanshu Mishra Counsel for Opposite Party :- C.S.C. Hon'ble Manish Mathur,J.

1. Heard Mr. Amol Kumar Srivastava, learned counsel for revisionists and learned State Counsel for opposite parties.

2. Civil revision under Section 115 of the Code of Civil Procedure has been filed challenging order dated 30.09.2024 passed in Civil Appeal No.21 of 2022 instituted by original plaintiff whereby application for amendment under Order 6, Rule 17 of the Code of Civil Procedure preferred at the first appellate stage seeking amendment of plaint has been rejected.

3. Learned counsel for revisionists submits that the original plaintiff, Smt. Laxmi Devi instituted Original Suit No.1 of 2019 seeking a declaration with regard to civil death of her husband Dinesh Kumar Singh on the ground that her husband has been missing for the past seven years since 01.09.2011.

4. The aforesaid suit was dismissed by means of judgment and decree dated 26.09.2022 primarily on the ground that it was not maintainable in view of proviso to Section 34 of the Specific Relief Act read with Section 9 of the Code of Civil Procedure and Sections 107 and 108 of the Indian Evidence Act inasmuch as no further relief to which the plaintiff was entitled has been sought except for a mere declaration.

5. It is submitted that Civil Appeal No.21 of 2022 was thereafter preferred in which the amendment application was preferred and has been rejected by means of impugned order.

6. Learned counsel for revisionists submits that the first appellate court has erred in rejecting the application for amendment inasmuch as it is settled law that amendment of plaint is permissible at any stage of proceedings. It is also submitted that the amendment so sought was in fact being made only to rectify an alleged error pertaining to maintainability of suit. He has therefore submitted that the first appellate court has erred in recording a finding that a new cause of action was sought to be introduced as a relief at the first appellate stage. Learned counsel has placed reliance on following judgments:- (i) North Eastern Railway Administration, Gorakhpur versus Bhagwan Das (Dead) By LRS. reported in (2008) 8 Supreme Court Cases 511; (ii) Life Insurance Corporation of India versus Sanjeev Builders Private Limited & Another reported in (2022) 16 Supreme Court Cases 1; (iii) Raeesa Bano versus Tabassum Jahan & Ors. reported in 2024 SCC Online All 2310.

7. Learned State counsel has refuted submissions advanced by learned counsel for revisionists with the submission that the proviso to Section 34 of Specific Relief Act read with Section 9 of the Code of Civil Procedure and in terms of Sections 107 & 108 of the Evidence Act clearly barred not only the suit but also the amendment so sought which even otherwise was being sought to be incorporated at the first appellate stage. It is submitted that the first appellate court has rightly recorded a finding that the original suit being only for a declaration of plaintiff's husband as deceased did not contain any further relief which the plaintiff was able to seek and therefore has rightly been rejected. It is also submitted that the amendment sought to be incorporated would arise a new cause of action, thereby changing the nature of original suit and therefore cannot be permitted.

8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the factual aspects as indicated hereinabove are admitted. The original suit has been preferred only for a declaration of civil death of the husband of original plaintiff and the same was dismissed by means of judgment and decree dated 26.09.2022 primarily on the ground that it was barred in terms of proviso to Section 34 of the Specific Relief Act inasmuch as further relief as the plaintiff was able to seek, had not been sought.

9. It appears that in order to remedy the aforesaid defect as indicated by trial court, the plaintiff filed application for amendment at the first appellate stage, which has also been rejected primarily on the ground that it seeks to incorporate a fresh cause of action and does not indicate any fresh aspect necessary for decision of appeal.

10. From material on record, particularly a copy of plaint brought on record, it is quite evident that the suit was filed only seeking a declaration of death of the plaintiff's husband. The aspect as to whether the suit was maintainable or not in terms but proviso to Section 34 of the Specific Relief Act is an aspect required to be considered by the first appellate court and cannot be a point of adjudication in the present revision.

11. However, it is evident from the amendment application that the amendment so sought pertained to the aspect that the plaintiff is the successor of Dinesh Kumar Singh and may be declared as such after declaration of civil death of said person.

12. It is evident from a copy of the judgment and decree passed by trial court that suit preferred by original plaintiff has been rejected primarily on the ground that no further relief apart from a declaration of death has been sought. It was probably to remedy such a finding that the application for amendment was preferred at the first appellate stage.

13. In the considered opinion of this Court, once the suit had been filed seeking declaration of death of the plaintiff's husband, the amendment so sought would not in any manner change the nature of suit since it would amount to seeking a prayer consequential to the original prayer.

14. Hon'ble the Supreme Court in the case of Bhagwan Das (supra) has held that provisions of Order 6, Rule 17 of the Code of Civil Procedure postulates amendment of pleadings at any stage of the proceedings and are required to be allowed to satisfy the twin conditions that firstly, it does not work injustice on the other side, and secondly, of being necessary for the purpose of determining the real questions in controversy between the parties. It also holds that amendment 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 cannot be compensated in costs. The relevant portion of the judgment is as follows:- "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these 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; AIR 1957 SC 363 which still holds the field, 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. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar(1990)1 SCC 166.)"

15. The aforesaid enunciation of law has thereafter also been followed by Hon'ble the Supreme Court in the case of Life Insurance Corporation of India (supra) that all amendments are to be allowed which are necessary for determining the question in controversy provided it does not cause injustice or prejudice to the other side. The said proposition has been held to be mandatory. The judgment also indicates that a prayer for amendment is to be allowed for effective and proper adjudication of controversy between the parties and to avoid provided the multiplicity of proceedings, amendment does not result in injustice to the other side or seeks to withdraw any clear admission made by the party which confers a right upon the other side or is barred by limitation.

16. The aforesaid judgments and proposition of law are clearly applicable in the present facts and circumstances of the case since the amendment application has not been refused on the ground that it would perpetuate injustice upon other side or that it is barred by limitation. On the contrary, the application has been rejected only on the ground that it would introduce a fresh cause of action.

17. As already indicated hereinabove, in the considered opinion of this Court, once the original suit had been filed seeking a declaration of death pertaining to the plaintiff's husband, the amendment so sought pertaining to declaration of rights of the wife being the original plaintiff, would only be a concomitant to the initial prayer made and would thus not introduce any new plea or cause of action.

18. In view of aforesaid, finding recorded by the impugned order dated 30.09.2024 passed in Civil Appeal No.21 of 2022 being against proposition of law is hereby set aside.

19. Resultantly, civil revision succeeds and allowed. Parties to bear their own cost. Order Date :- 22.1.2025 Subodh/- SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench