Bagdiram And Ors vs Ramkrishan And Ors

The petitioners before this Court, who are defendants, have filed this present petition being aggrieved by the order dated 27.11.2017 passed by the II-

Civil Judge, Class-I, Manasa, Distt.-Neemuch in civil suit No.36A/13.

The facts of the case reveal that the respondent Nos.1, 2 and 3 have filed a suit for declaration of title in respect of land bearing survey Nos.750,

751, 10112 and 1461 and, thereafter, a written statement was filed. The other defendants have also, later on, filed reply and written statement i.e.

respondent Nos.4, 5 and 6. An application was filed for amendment in the written statement explaining the details regarding the possession over

different disputed survey numbers and the application has been dismissed in a mechanical manner by the trial court without considering the nature of

the amendment application only on the ground that the trial has commenced.

In spite of service of notice, there is no appearance on behalf of the respondent.

The Apex Court in the case of Andhra Bank Vs. ABN Amro Bank N.V., reported in AIR 2007 SC, 2511, has considered the issue relating to

amendment after the commencement of the trial. The Apex Court in the aforesaid case in paragraph Nos.5, 6, 7 and 11 has held as under:-

“5. We have heard Mr. Rohit Kapadia, learned senior counsel appearing for the appellant and Mr. S. Ganesh, learned senior counsel for the

respondent. We have perused the original written statement as well as the application for amendment of the written statement. After going through

the written statement and the application for amendment of the written statement, we are of the view that the amendment sought to be introduced by

the appellant must be allowed. From a perusal of the impugned order of the Special Court we find basically that two grounds have been taken by the

Special Court for rejecting the prayer for amendment of the written statement. The first ground is that considerable delay has been caused by the

appellant in filing the application for amendment of the written statement. It is well settled that delay is no ground for refusal of prayer for amendment.

Mr. Ganesh, appearing for ABN Amro Bank submits before us that by filing of such an application for amendment of the written statement which has

been filed with long delay, the appellant sought to stall the hearing of the suit which has been fixed on 13th July, 2007. In response to this Mr. Kapadia,

learned counsel for the appellant, submits that in the event the prayer for amendment is allowed by us his client undertakes to file the amended written

statement by day after tomorrow, i.e., 12th July, 2007 before the Special Court. Since, we are of the view that delay is no ground for not allowing the

prayer for amendment of the written statement and in view of the submissions made by Mr. Kapadia, we do not think that delay in filing the

application for amendment of the written statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the

second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the

question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such

amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we

find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230of the Indian Contract Act, the

suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written

statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230of the Indian Contract Act was or is not

maintainable.

That apart it is permissible in law to amend a written statement of the defendant by which only an additional ground of defence has been taken.

In view of the reasons stated herein above we are of the view that the order of the Special Court rejecting the application for amendment of the

written statement filed by the appellant is liable to be set aside and the prayer for amendment of the written statement must be allowed. Accordingly,

the application for amendment of the written statement is allowed and the impugned order is set aside. We are informed by the learned counsel for the

parties appearing before us, as noted herein earlier, that the suit has been fixed for hearing on 13th July, 2007 and the parties will not seek any

adjournment on that date. In that view of the matter we direct the appellant to file the amended written statement by 12th July, 2007 positively and

thereafter the Special Court shall proceed with the hearing of the suit. The appeal is allowed to the extent indicated above. There will be no order as

to costs.

We have heard learned counsel for the parties and on consideration of the material on record, we are of the view that the Special Court has acted

illegally and with material irregularity in the exercise of its jurisdiction in passing the impugned order. In the facts and circumstances of the present

case and also after considering the affidavit filed by the appellant, we are of the view that such a prayer of the appellant to tender in evidence of

certain paragraph and affidavit in examination in chief of the appellant containing statements are relevant and germane to the issues involved in the

suit and, therefore, cannot be rejected only on the ground that the same did not contain any admission. Accordingly, we set aside the impugned order

and allow the appeal.

In light of the aforesaid judgment, as the amendment was necessary for adjudication of the lis, the same should not have been dismissed in a

mechanical manner as has been done by the trial court on technical ground.

Learned counsel has also placed reliance upon the a judgment delivered in the case Abdul Rehman and another Vs. Mohd. Ruldu and Others,

reported in 2012 (11) SCC, 341. Paragraph Nos.10, 11, 13 to 20 read as under:-

“10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer

Order VI Rule 17 which is as under:-

“17. Amendment of pleadings.â€"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 that no application for 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.â€​

It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of

determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the

commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that

in spite of due diligence, the party could not have raised the matter before the commencement of trial.

The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an

added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails

absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of

due diligence, it could not have been sought earlier. The object of the rule is that 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. This Court, in a series of decisions has held that the power to allow the amendment is wide and

can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and

the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case.

The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar

Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants

have made out a case for amendment.

Next, we have to see whether the proposed amendments would alter the claim/cause of action of the plaintiffs. In view of the same, we verified

the averments in the un-amended plaint. As rightly pointed out by Ms. Manmeet Arora, learned counsel for the appellants that the entire factual matrix

for the relief sought for under the proposed amendment had already been set out in the un-amended plaint. We are satisfied that the challenge to the

voidness of those sale deeds was implicit in the factual matrix set out in the un-amended plaint and, therefore, the relief of cancellation of sale deeds

as sought by amendment does not change the nature of the suit as alleged. It is settled law that if necessary factual basis for amendment is already

contained in the plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by

the trial Court and High Court cannot be sustained. It is not in dispute that the relief sought by way of amendment by the appellants could also be

claimed by them by way of a separate suit on the date of filing of the application. Considering the date of the sale deeds and the date on which the

application was filed for amendment of the plaint, we are satisfied that the reliefs claimed are not barred in law and no prejudice should have been

caused to respondent Nos. 1-3 (defendant Nos. 1-3 therein) if the amendments were allowed and would in fact avoid multiplicity of litigation.

Learned counsel for the appellants has alsobrought to our notice that the amendments were necessitated due to the observations made by the High

Court in its earlier order dated 19.04.2007 in C.R. No. 3361 of 2007 to the effect that the appellants’ application for ad-interim injunction without

seeking cancellation of the sale deeds is not maintainable. This aspect has not been noticed by the trial Court as well as the High Court while

considering the application filed under Order VI Rule 17 of the Code.

It is also brought to our notice that respondentNos. 2 and 3 herein â€" transferees under the sale deed, are the nephews of the appellants herein

and the transferors and the purchase of the suit land by them is void to their knowledge as they were equally bound by the judgment dated 20.12.1971

and compromise deed dated 04.07.1972 declaring that under the applicable customary law of inheritance to the parties therein, widows and daughters

have no right of inheritance in the presence of the sons. It is the claim of the appellants that in view of the same, respondents â€" transferees are not

bona fide purchasers of the suit land. Learned counsel for the appellants again brought to our notice that these facts were specifically stated in the un-

amended plaint and, therefore, amendment seeking incorporation of relief of declaration that the sale deeds are void does not change the nature of the

suit. Because of those allegations in the un- amended plaint, the same was denied by the defendants in their written statement and we are satisfied

that the necessary factual matrix as regards the relief of cancellation was already on record and the same was an issue arising between the parties.

In view of the stand taken by the respondent Nos. 1-3 herein/Defendant Nos. 1-3 in their written statement and the observation of the High Court

in the application filed for injunction, we are of the view that the proposed amendment to include a relief of declaration of title, in addition to the

permanent injunction, is to protect their interest and not to change the basic nature of the suit as alleged.

In Pankaja & Anr. vs. Yellapa (Dead) By Lrs.& Ors. AIR 2004 SC 4102 = (2004) 6 SCC 415, this Court held that if the granting of an

amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further

held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down

in the plaint in regard to the title.

We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should

be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature

of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.

In the light of various principles which we have discussed and the factual matrix as demonstrated by learned counsel for the appellants, we are

satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendant Nos. 1-3) are in no

way prejudiced and they are also entitled to file additional written statement if they so desire. Accordingly, the order of the trial court dated 06.06.2007

dismissing the application for amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Civil Revision No. 4486 of 2007 dated

13.11.2007 are set aside. The application for amendment is allowed. Since the suit is of the year 2003, we direct the trial Court to dispose of the same

within a period of six months from the date of receipt of copy of the judgment after affording opportunity to all the parties concerned.

The appeal is allowed. No order as to costs.â€​

In light of the aforesaid, as the amendment application was made after the commencement of the trial, this Court is of the opinion that in spite of

due diligence, the defendant was not able to raise the issue raised in the amendment application in the written statement, the amendment application

should have been allowed as it is necessary for determining the real question and the controversy involved between the parties. No prejudice or

injustice is going to be caused to the other side.

A reliance has also been placed upon the judgments delivered in the case of Surender Kumar Sharma Vs. Makhan Singh, reported in 2009 (10)

SCC, 626 and Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (dead), reported in 2007 (6) SCC, 737 and lastly, upon the

judgment Usha Balashahed Swami and Ors. Vs. Kiran Appaso Swami and Ors., reported in AIR 2007, SC, 1663.

In light of the aforesaid judgments, this Court is of the opinion that the amendment application should have been allowed as the details regarding

possession over the disputed survey numbers have been explained in the application. Resultantly, the application under Order 6 Rule 17 of CPC is

allowed. The impugned order dated 27.11.2017 is set aside. The trial court is directed to proceed ahead in accordance with law.

No order as to costs.