Kotak Mahindra Bank Ltd. vs Dhanalakshmi and Others

N. Kumar, J.—This is a 1st defendant''s writ petition against the order passed by the Trial Court allowing an application under Order VI Rule 17 of the Code of Civil Procedure permitting the plaintiff to include the prayer for recovery of possession, after the conclusion of the trial and at the time of arguments.

The learned counsel for the petitioner contended that in the written statement, it is specifically pleaded that on the day the suit was filed, the plaintiffs were not in possession. He has referred to the earlier proceedings, where the very same plaintiffs were also parties to a suit, who were responsible to handover the property. Therefore, the plaintiffs and the Advocate were fully conscious of the fact that the schedule premises had been handed over to the possession of the defendant. The plaintiffs have sought for cancellation of the sale deed, but however, they did not seek the consequential relief of possession and therefore, the suit was not maintainable. In view of the amendment to the Code of Civil Procedure, after trial, no amendment can be allowed, unless the case falls under the proviso, the application for amendment ought not to have been allowed.

In support of his contention, he relied on a judgment of the Apex Court in the case of Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, AIR 2008 SC 2303 : (2008) 5 CTC 253 : (2008) 7 SCALE 471 : (2008) 14 SCC 364 : (2008) AIRSCW 4007 : (2008) 4 Supreme 435 . In the aforesaid judgment, the Apex Court has held that Order VI Rule 17 of CPC confers jurisdiction on the Court to allow either, party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. The opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the condition prescribed in the proviso.

Applying the aforesaid law laid down in the facts of this case, the case on hand is not a pre-trial amendment. Amendment application is filed after trial. The question is whether any prejudice is caused to the defendants by such amendment. The defendant in the written statement has categorically pleaded that the plaintiff is not in possession, defendant is in possession and therefore, the suit filed by the plaintiff without seeking the relief of possession is not maintainable. Therefore, after trial, the amendment is filed seeking for possession. In fact the amendment emanated by taking a plea in the written statement filed by the defendants. When the defendants contend that the suit is not maintainable without that prayer and when an amendment is made to make the suit maintainable, it is not open to them to now contend that taking advantage of the amendment of the Code of Civil Procedure, such an application has been allowed. It is true that any post-trial amendments are to be allowed as an exception. The Trial Court, on appreciation of the entire evidence on record and after looking into the pleadings and to the legal position at para 10 of the impugned order has categorically held that the proposed amendment is not going to change the nature of the suit or it is barred by time. The proposed amendment is necessary for just adjudication of the suit and therefore, it allowed the amendment application. Though the party plaintiff could have included the said prayer, if he was diligent. All that the party could do is to approach a lawyer, instruct him, hand over the papers and pay him the fees. But the Advocate has failed to discharge his duty and at the fag end of the trial, he realized the mistake and tries to make an application, which otherwise would have rendered the suit not maintainable and which act has in no way prejudiced the interest of the defendant as pointed out by the Apex Court in the aforesaid judgment. As the proposed amendment does not prejudice the defendant in any manner, the Court has jurisdiction to allow the same. It is well settled that the Lawyer being an Officer of the Court, his action should not hurt the party. Accordingly, I do not see any justification to interfere with the well considered order of the Trial Court, which has not resulted in any injustice. Therefore, I decline to exercise the power under Article 226 of the Constitution of India. Hence, petition is dismissed.