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Judgment
CORAM: HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
CAV ORDER
This Writ Petition is by the Petitioner-Defendant seeking the following reliefs:
Issue a writ in the nature of certiorari thereby quashing the impugned order dated 19.10.2024 passed on I.A.No.V in O.S.No.446/2018 by III-Addl. Civil Judge and JMFC, Vijayapura, vide Annexure-F, in the interest of justice and equity.
ii) Issue writ in the nature of mandamus thereby reject the I.A.No.V amendment application filed by the Respondent to amend plaint in O.S.No.446/2018 on the file of III-Addl. Civil Judge & JMFC, Vijayapura, in the proceedings in the interest of justice and equity.
iii) Issue any other suitable writ or order or direction which the Hon’ble Court may deems fit in the circumstances of the case, as stated above in the interest of justice and equity.
The Respondent herein had filed O.S.No.446/2018 for the relief of possession of the portion marked as ‘EFCD’, which is a residential house constructed in Plot No.51A situated at Devaragennur village, Vijayapura Taluk and District, as per the sketch appended to the plaint.
The Petitioner-Defendant filed a written statement denying the plaint averments and sought dismissal of the suit.
The Trial Court, on perusal of the pleadings made in the plaint and the written statement, has framed issues on 24.01.2019 and subsequently recorded the oral and documentary evidence of the respective parties. After recording of evidence, the matter came to be posted for arguments, and it appears that the parties have addressed their arguments and when the matter was posted for reply by the Plaintiff, an application in I.A.No.V has been filed by the Plaintiff under Order 6 Rule 17 of CPC seeking an amendment to substitute Plot No.34A in place of Plot No.315A as pleaded in the plaint, indicating that the said plot is towards the western side of the suit Schedule Property.
The Petitioner-Defendant has opposed the application in I.A.No.V by filing objections, stating that such an amendment at this length of time, that too at the stage of reply to the arguments advanced by the Petitioner-Defendant, would be impermissible. The application, i.e., I.A.No.V, was also opposed on the ground that the same would change the entire nature of the suit and thus, the application seeking amendment as sought for in the application, may not be entertained.
The Trial Court, considering the respective arguments of the Petitioner-Defendant and the Respondent-Plaintiff, allowed the application in I.A. No.V by order dated 19.10.2024, thereby allowing the amendment as sought for by the Respondent-Plaintiff. This order of the Trial Court is impugned in the present Writ Petition.
The learned counsel appearing for the Petitioner-Defendant would submit that the Trial Court ought not to have entertained I.A.No.V seeking amendment at a belated stage of the proceedings. The learned counsel would elaborate the said argument by submitting that the Respondent-Plaintiff has filed I.A.No.V at the fag end of the proceedings when the matter has been posted for reply arguments of the Respondent-Plaintiff. It is submitted that the amendment sought for by the Respondent-Plaintiff would alter the nature of the suit and thus, the same shall not be entertained.
The learned counsel would further submit that the Respondent-Plaintiff was fully aware of the fact that the plot No.34A was towards the Western side of the suit schedule property and the same was also pointed out in the written statement filed, despite the same, the Respondent-Plaintiff has not taken any steps, and without exercising due diligence on his part, the I.A. No. V was filed seeking amendment at the stage of conclusion of the final arguments. The learned counsel would therefore submit that the order passed by the Trial Court in allowing the I.A.No.V is liable to be set aside.
Per contra, the learned counsel appearing for the Respondent-Plaintiff would submit that the discrepancy in mentioning plot No.315A in place of 34A is by oversight and the same is not intentional. It is submitted that the amendment sought for by the Respondent-Plaintiff would not alter the nature of the suit or dispute involved; since no prejudice would be caused to the Petitioner-Defendant, the Trial Court is justified in allowing the I.A.No. V, permitting the amendment. It is further submitted that the amendment would prevent further litigation or multiplicity of proceedings and the same would serve the ends of justice. With the aforementioned submissions, learned counsel would seek the dismissal of the Writ Petition.
Heard learned counsel appearing for the respective parties and perused the documents available on record.
The Respondent-Plaintiff has filed I.A.No.V under Order 6 Rule 17 of CPC seeking amendment of the plaint. The amendment sought for by the Respondent-Plaintiff is extracted hereunder:
“APPLICATION UNDER ORDER 6 RULE 17 OF C.P.C.
Herein, the Advocate for the Applicant-Plaintiff most respectfully begs to submit, as under:
That for the reasons stated in the accompanying affidavit of the applicant, it is very humbly prayed that the Hon'ble Court may pleased to permit the applicant-Plaintiff to amend the plaint, as under:
1.In Para 2, 6th Line before the word towards west Plot No. "315A" be deleted and in that place Plot No. "34A" be added.
2.In Prayer column at Para 9 at 7th Line before the word towards west Plot No. "315A" be deleted and in that place Plot No. "34A" be added.
3.In Schedule annexed to the plaint in third line before the word towards west Plot No. "315A" be deleted and in that place Plot No. "34A" be added.
4.In plaint sketch towards west side before the word Plot No. "315A" be deleted and in that place Plot No. "34A" be added. Order sought above kindly be passed.”
In the affidavit filed supporting the application for amendment, it is stated by the Respondent-Plaintiff that the mis-description of the boundary towards the western side is by oversight and due to typographical error. It is contended that replacing plot No.34A in place of plot No.315A would not change the nature of the suit and would not amount to introducing a new case or cause of action. The said contention of the Respondent-Plaintiff merits acceptance inasmuch as the entire amendment, as extracted hereinabove, would only indicate that the replacement of plot No.315A with plot No.34A and nothing further. In other words, the amendment sought for only relates to deletion of plot No.315A and replacement of plot No.34A in the plaint averments, wherever it occurs.
It is imperative to refer to the decision of the Hon’ble Supreme Court in the case of Mahila Ramkali Devi and Others vs. Nandram (dead) through Legal representatives and Others1, and it is useful to extract para No.20, 21 and 22, which are as under:
“20.It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.
21.In our view, since the appellant sought amendment in paragraph 3 of the original plaint, the High Court ought not to have rejected the application.
22.In the case of Jai Jai Ram Manohar Lal vs.
National Building Material Supply, this Court held
that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations.”
The aforementioned observations of the Hon’ble Supreme Court are appositely applicable to the case on hand. In the present case, except amending or altering the plot number mentioned as 315(A) towards the western side of the suit schedule property, which was wrongly described in the plaint averments is sought to be replaced with the correct plot No.34(A).
Indeed, it is noticed that the Petitioner-Defendant in paragraph Nos.2 and 4 in the written statement filed has taken up the following contentions:
“It is false to aver that towards west of plot No.51A the plot No.315A is situated, but in fact the plot bearing No.34A owned by this Defendant is situated.”
“It is false to aver that the plot No.34A is not situated towards west of plot No.51 owned by the Plaintiff.”
The afore stand taken by the Petitioner-Defendant would establish the case of the Respondent-Plaintiff that the plot No.315A is not towards the western side of the suit schedule property.
Unquestionably, the subject matter of the suit is plot No.51A. Even according to the amendment sought for by the Plaintiff and the averments made in the written statement would indicate that plot No.315A is not in existence anywhere near the suit schedule property. The Trial Court, having appreciated the respective case of the parties with reference to the documents, has rightly observed as under:
“However, in the case on hand, it is not the case of either parties that plot No.315(A) is situated anywhere near the suit schedule property. Thought the Defendant disputed the boundaries but there is no mention of plot No.315A either in oral evidence or in documentary evidence. Therefore, this court is of the opinion that the pleadings or documentary evidence on record goes to show that it is a typographical error.”
The cognition of the Trial Court is fully justified, and there is no error or infirmity in the order passed by the Trial Court in allowing the application seeking amendment of the plaint which pertains to correction of plot number.
The assertion of the Petitioner-Defendant that the amendment filed at the belated stage ought not to have been entertained is also without any merit, as the application seeking amendment is to be liberally construed to avoid multiplicity of proceedings. The application filed by the parties seeking amendment is required to be weighed on its merits and demerits, and it always depends on the facts and circumstances of each case.
The Hon’ble Supreme Court, cogitating the provision relating to the amendment under Order 6 Rule 17 of Code of Civil Procedure in the case of Life Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd., and another2, has laid down the principles that have to be kept in mind while dealing with an application filed seeking amendment and the same is extracted for ready reference -
“(i)All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
(ii)In the following scenario, such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side.
(iii)Amendments, while generally should be allowed, the same should be disallowed if (a) By the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side.
(b)The amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations)
(c)The amendment completely changes the nature of the suit;
(d)The prayer for amendment is malafide,
(e)By the amendment, the other side should not lose a valid defence.
(iv)Some general principles to be kept in mind are –
(I)The court should avoid a hyper-technical approach; ordinarily be liberal, especially when the opposite party can be compensated by costs.
(II)Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach.
(III)The amendment should not change the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint.”
17.The Hon’ble Supreme Court in the case of Ganesh
Prasad and Others vs. Rajeshwar Prasad and Others3, considering the decisions rendered earlier, has held as under:
In the event, if the pleas sought to be introduced by Plaintiff by way of an amendment is also the plea, which the Defendant has set up in his written statement and such a plea of the Plaintiff is an alternative plea, even though it is inconsistent with the original plea, since there is no prejudice caused to the Defendant, the Court is not precluded from allowing the amendment.
At this stage, we may refer to rely upon the decision of this Court in the case of State of Madhya Pradesh v. Union of India and Another reported in (2011) 12 SCC 268. We quote the relevant observations as contained in para 8 of the judgment: -
“8.The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.”
(Emphasis supplied)
The underlying object of allowing amendment, if broadly considered, the same should be for determining the real question in controversy; such amendment shall not cause injustice or prejudice to the other side; the amendment should not be for introducing a new case or cause of action or entirely setting up a new case. If the allowing of amendment application would avoid multiplicity of proceedings, such amendments are to be allowed liberally. The Petitioner has not been able to point out or demonstrate how the amendment permitted would have an impact on his rights and interests or cause prejudice to his case.
In the conspectus of the law laid down by the Hon’ble Supreme Court and with reference to the case on hand and the nature of amendment that is sought for, there is no error or infirmity in the order passed by the Trial Court in allowing the amendment application in I.A.No.V as sought for. The order passed by the Trial Court does not call for interference in the present proceedings.
Hence, this Court proceeds to pass the following:
ORDER
The Writ Petition is hereby rejected.