Gopal Singh Kushwaha and Others vs Smt. Mohaniya Bai and Others

Sujoy Paul, J.—By invoking the jurisdiction of this Court under Article 227 of Constitution, petitioners have challenged the order Annexure P/6 dated 10-03-2010 whereby their application (Annexure P/3) preferred under Order VI Rule 17 of CPC is rejected by the Court below. Petitioners are also assailing the order dated 19-07-2010 (Annexure P/8) whereby their application under Order VIII Rule 1 of CPC is rejected by the Court below. Petitioners preferred an application under Order VI Rule 17 of CPC. In the said application, it was stated that the petitioners had already made averments in the written statement but in the said averments because of typing error the date and other necessary particulars could not be mentioned. Thus, by proposing para 16 by way of amendment it is contended that the said amendment will not change the nature of case and will only elaborate and describe the existing pleadings. This application was rejected by the Court below by applying the judgment of Supreme Court in the case of Vidyabai and Others Vs. Padmalatha and Another, . It is held by the Court below that this application is filed after amendment in the provisions of Order VI Rule 17 of CPC and as per the amended proviso, the application cannot be entertained when "due diligence" is not established. Criticizing the said order, learned counsel for the petitioners submits that when the amendment does not change nature of the case and is necessary for lawful adjudication of the matter, it should not be disallowed mechanically.

Shri Bansal supported the impugned orders on the basis of judgment of Supreme Court in Vidyabai. After the judgment of Vidyabai, the matter was again considered by the Supreme Court in Abdul Rehman and Another Vs. Mohd. Ruldu and Others, . The Apex Court after taking stock of earlier judgments on the point and proviso inserted to Order VI Rule 17 of CPC, opined that power to allow amendment is wide and can be exercised at any stage and proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and plea that relief sought by way of amendment was barred by time is to be considered in the light of facts and circumstances of each case.

Applying the said principle to the present case, would show that mechanically it cannot be held that every amendment application filed after insertion of proviso is not entertainable. If sufficient cause is shown, amendment does not change nature of the case, no prejudice is caused to the other side and amendment is helpful to decide actual controversy, amendment cannot be mechanically disallowed. Unless the amendment application is shown to be filed with malafide intention to delay the proceeding etc., it has to be dealt with leniently. It is also trite that by way of amendment the parties can strengthen and elaborate their pleadings. On the basis of aforesaid analysis, in my opinion present amendment if allowed, will not cause any prejudice to the other side. By this amendment, the petitioners are intending to strengthen the existing pleadings. Thus, the order dated 06-03-2010 (Annexure P/6) is liable to be set aside. However since the amendment was filed belatedly, I deem it proper to impose cost to compensate the other side.

Petitioners preferred another application under Order VIII Rule 1 CPC which was rejected by the Court below by the same order whereby the amendment application was rejected. Singular reason assigned by the Court below in rejecting the said application was that the petitioners had not assigned any reason and relevance of the documents.

Annexure P/4 shows that petitioners did assign reason along with background as to why the said documents are relevant and necessary. Thus, in this regard the finding of Court below runs contrary to record and is perverse. Petitioners'' another application preferred under Order XVI Rule 1 of CPC is rejected on 19-07-2010. This order is entirely based on the earlier order passed under Order VIII Rule 1 CPC. Since this Court opined that the said order which become foundation is bad in law, this order will not come in the way of petitioner in any manner. On the basis of aforesaid analysis, the impugned order dated 06-03-2010 (Annexure P/6) is set aside. However, for causing delay in the proceeding by preferring the applications belatedly, petitioners shall pay Rs. 2,000/- as cost to the other side. Subject to paying cost this petition is allowed.