AI Structured Summary
Not yet generated for this judgment
Judgment
Prakash Narain, A.C.J.
(1) The question of law referred to the larger Bench by T.P.S. Chawla, J. may be formulated as under :
" Can the court while allowing an amendment under Order 6, Rule 17 of the CPC order that the amendment shall take effect from the date of the application for amendment and not the date of the institution of the suit ?"
The above question arises as it has been contended bythe petitioner that the power of the court to allow an amendment of pleadings on such terms as may be just cannot be restricted to merely awarding costs and that all the circumstances of the case have to be taken into account in laying down the terms on which amendment is permitted. On behalf of the respondents, on the other hand, it has been contended that once amendment is allowed, it must relate back to the date of the suit and at best the opposite party is to be compensated by costs.
(2) Our learned brother, on the basis of the research made and presented to him at the time of hearing, observed that inasmuch as from 1908 to 1970 a plea like the one now raised by the petitioner has not been noted in any of the decided cases this was a strong indication that for over 60years that the CPC had existed, such a proposition as now raised by the petitioner was not thought to be tenable and so, could not be raised. Indeed, our learned brother went on to comment that perhaps if sucha plea was to be allowed it may be destructive of the whole theory of amendment and defeat its very purpose. He felt that ,such a condition cannot be imposed. Nevertheless, in view of certain decisions brought to his notice, which were all decisions given since 1971, our learned brother thought it proper that the question should be decided authoritatively by a larger bench. That is how the matter is before us.
ORDER6, Rule 17 of the Code reads as under :
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 maybe just, and such amendments shall lie madeas may be necessary for the purpose of determining the real questions in controversy between the parties."
IT is settled law that a case has to be decided on the basis of the pleadings before a court. Order 6 Rule 17permits and amendment of the pleadings so that matters which for some reasons were not pleaded earlier, can be pleaded by amendment to enable the court to do justice. It naturally follows, and that is the usual rule. that once amendment has been allowed it relates back to the date of the filing of the suit so that justice is done between the parties on full and proper pleadings. All the same, it is difficult to subscribe to the view that an amendment in every case must relate back only to the date of the suit. The reason is obvious. Courts, in order to do justice between the parties, some-times take subsequent events into consideration .The subsequent events that are taken into consideration would necessarily be those which have arisen after the filing of the suit and, Therefore, could not obviously be pleaded when the suit was filed. For example, in a suit for partition of a joint Hindu family properties if a property is allegedly acquired from joint family funds during the pendency of the suit, the same will have to be included in the suit for purposes of partition by an amendment. It could not be mentioned in the original suit as the property was not there at that time. The defendant may well take upa plea with regard to such property that it has been acquired by his own funds and not joint family funds. The matter will have to be decided on merits. But the status of the property has to be decided and for that purpose an amendment becomes necessary in the plaint and such an amendment will necessarily be effective from a future date and not the date of the suit.
(3) It is also not correct that such situations have not arisen at any time between 1908 and 1970. They must have arisen. If the counsel have been unable to cite cases, it may only show that there has not been enough research. Indeed ,there is an old case reported as Manindra Chandra Nandi Bahadur v. Rangalal Mondal and others, A.I.R.1918 Calcutta 443, (1) which we have found without such effort .In this case a suit for possession was filed with regard to certain chowkidari chakran lands on 3/03/1911. The plaint set out the resumed lands in a schedule containing 9 plots of land of an area of 26 bighas said to be of the value of Rs. 305. On 16/08/1911 an application was made for amendment of the plaint which was allowed on 29/08/1911. The result of this order was that the suit became one for 59 plots instead of 9 plots of an area of 69 bighas instead of 26 bighas and for lands of the value of Rs. 705 instead of Rs. 305. The question arose whether the amended plaint did or did nor. include the lands set out in the schedule of the unamended plaint. The Subordinate Judge observed that the plaintiffs struck out all the plots claimed at first and put in new plots altogether of more value than that of plots claimed originally. In the appeal ,Therefore, the first question that arose was to ascertain whether the so called amended plaint included any lands as set out in the schedule to the unamended plaint. The next point which the Bench had to consider was as regards such lands as were added on 16/08/1911 and were not included in the original plaint. If there were any such plots the question arose when the suit must be regarded as instituted qua those lands. It was contended that the amendment having been allowed, the suit must be regarded as having been instituted with regard to all the lands on 3/03/1911 when the plaint was originally presented. It was held that with regard to lands added by the amendment made in August, 1911 the suit must be deemed to have been instituted on 16/08/1911.
(4) In Grain Panchayat , I. D. Dua, J. (as he then was) held that amendment in plaint normally relates back to the institution of the suit except where question of limitation arises on account of new parties being imp leaded or new cause of action in regard to some other property being urged for relief .Therefore, it cannot be said that such questions have never arisen before or were never urged earlier. Indeed, the phrase "in such manner and on such terms as may be just" has to be given its natural meaning and cannot be restricted to only award of costs. Had that been the legislative intent, we see no reason why the legislature could not have said so in plain language as is to be found in clause (2) of Rule 1 of Order 17, CPC or Section 153 CPC .
(5) Learned counsel for the petitioner has cited several decisions in which amendment was allowed from a date subsequent to the date of the filing of the original plaint . No reasoning has, however, been given in any of these cases as to why the usual rule of amendment relating back to the date of the suit was not followed. In the controversy was restricted to whether the order of amendment would relate back to the date of the application for amendment or would be effective from the date on which the amendment was allowed. It was noticed that no authority had been cited to show that where an application for amendment seeking to include some more properties is later on ordered, it is the date of the order that determines the question of lis pendens. It was observed that, "So far as the doctrine of lis pendens is concerned. The proper view is that the order dates back to the date of the application for amendment. It is then that further immovable properties were sought to be imp leaded in the suit .An alienation made prior to the application will not be affected, but from the date when the application for amendment was made, it must be held that the question oflis pendens applies. "The delay caused by the Court in ordering the application ought not to prejudice the parties
An application for amendment is similar to the plaint....... .. .. .This role is based upon public policy that if an alienation subsequent to the date of the plaint is allowed, the plaintiff will have to bring the alienee on record every time such an alienation is made and there will be no end to litigation."
(6) On behalf of the respondents it has been urged that there is no unlimited power in the court to permit amendment from any date it likes. According to learned counsel the rule on which amendment is to be allowed is well settled .Reference was made to. This is a case in which it was observed that Courts would, as a rule, decline to allow amendments. If a fresh suit on the amended claim would be barred by limitation on the date of the application. It was, however observed that the above rule was only a. factor to be taken into account in the exercise of the discretion as to whether amendment should be ordered and did not affect the power of the court to order it, if the amendment is required in the interest of justice. The decision of the Privy Council in, was noticed with approval. The point as to whether the amendment should be allowed from the date of the original suit or a subsequent date was not considered. What was laid down was that even a time-barred claim may be allowed to be included in the plaint if the justice of the matter so required .The question as to whether the defendant would be adversely affected because the right to plead limitation would thus be taken away was commented upon as an aspect left to the discretion of the court. From these observations learned counsel will have us conclude that even where time-barred claims are allowed to be included by amendment, the plea of limitation is almost nullified by the amendment will relate back to the date of the suit. Reference was also made by learned counsel to.
(7) What was decided in Nichhalbhai Vallabhai''s case was that amendment should be allowed to avoid multiplicity of suits. This was a case where it was contended that by amendment the plaintiff had converted his original suit into another of a different and inconsistent character. The Supreme Court after holding that the High Court rightly uphold the amendment observed that the amendment was necessary to avoid multiplicity of proceedings. In Jai JaiRam Manohar Lal''s case what the Supreme Court observed was that the court always gives leave to amend the pleadings of the parties unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated byan order of costs. However, negligent or careless may have been the first omission and, however, late the proposed amendment ,the amendment nay be allowed if it can be made without injustice to the other side. This judgment cannot be construed to mean that a rule has been laid down about costs being awarded to compensate the defendant and that is the only matter left in the discretion of the court. Costs are generally granted to compensate for adjournment caused .The terms on which the amendment is to be allowed is quite another matter. In A. K. Gupta and SonsLtd.''s case the Supreme Court observed that amendment of pleadings introducing a new case cannot be allowed if a suit on such case is barred. This was again a case where the point in issue was whether an amendment can be allowed to a party which tries to set up a new case or plead a new cause of action particularly when a suit on the new cause of action is barred. The rule enunciated in this case does not help us in answering the question posed by the referring order .
(8) I am in entire agreement with the learned counsel for the respondents that the court in considering an application for amendment is not allowed to act in the Vacuum and must exercise its power by adopting all the rules of judicial discretion. The power, however, cannot be restricted to only a power to award costs. In appropriate cases keeping the plea of limitation in view or other similar aspects in view, the court may well put the plaintiff or the defendant ,whoever is seeking amendment, to such terms as may be just including laying down that the amendment will be effective only from a particular date. To take any other view would amount to restricting the language and importing into it a meaning which the legislature did not intend to give.
S. Ranganathan, J.
(9) Accordingly, I answer the reference in the affirmative. I refrain from making any observation on the merits of this case as to whether the amendment as allowed or not allowed was correct or incorrect.
The case will now go back to the learned Single Judge for decision of the revision petition on merits.
I agree ,I would, however, like to add a few words as the point raised is an interesting one and is also likely to recur frequently.
(10) It is well settled that where an amendment of the pleadings is allowed, the usual rule and the normal consequence is that it relates back to the date of the filing of the suit so that justice can be done to the parties on full and proper pleadings. This is the reason why in many of the cases on amendment of pleadings, and objection on the basis of a plea of limitation looms large. There has beena long catena of decisions of the Supreme Court and the High Courts to the effect that, in deciding whether to allow an amendment or not the court should consider whether the right that has accrued to the opponent by the expiry of the period of limitation will be affected by allowing the amendment .The court, would, as a rule, decline to allow an amendment if a fresh suit on the amended claim would be barred by limitation on the dale of the application but may make exceptions in proper cases. Accordingly, courts have always either allowed or disallowed amendments after taking the factor into account but have not considered specifically the possibility of limiting the amendment !o take effect from the date of the application therefore. Had sucha limitation been considered possible, perhaps at least in some of the numerous cases decided on this point, the amendment might have been made subject to such a prospective rule. The decided cases, in other words, have invariably proceeded on the assumption that an amendment. once allowed, is fully retrospective and takes effect from the date of the original pleadings.
(11) But it seems to me that the mere fact that the genera! and normal rule has been followed in most of the cases is not sufficient to draw the inference that the Court can direct an amendment only on those terms or not at all. My Lord has referred to an early Calcutta decision which indicates to the contrary and there are more explicit recent rulings. That apart, the powers of the Court in this regard are derived from the language of Order 6 Rule 17. The complexities of cases and the circumstances in which amendments are sought are so varied that it may not be advisable to restrict the scope of the above provision which has been expressed in very wide language to enable the Court to pass an order of amendment on such terms as it thinks justin the circumstances of a case. It is not possible to conceive of the various circumstances in which it will be equitable or necessary to impose a term that the amendment would be effective only from the date of application. The fact that the claim sought to be put in by way of amendment has since become barred by time may not, by itself, be considered sufficient to make the amendment prospective and if that be the solitary ground, the court perhaps may, as has been done during the past several years, either decline the amendment or allow it to have the normal effect. But the court, in my opinion, has and should have the power to look. at all the circumstances and the nature of the amendment sought ought for and then pass an appropriate order. I do not think it can be laid down as a matter of principle and invariable role that an amendment, once ordered, should relate back to the date of the original pleadings and that the court lacks the power, even in appropriate cases, to restrict the scope of the amendment sought for.