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Judgment
Heard Mr. S Das, the learned counsel for the petitioner. Also heard Mr. A R Sikdar, the learned counsel for the respondent Nos. 1 and 2 and Mr. N Alam, learned counsel for the respondent Nos. 3(a) to 3(f).
This application under Article 227 of the Constitution of India has been filed by the petitioner, Shri Rati Ram Boro, impugning the order dated 15.07.2024 passed by the Court of learned, Civil Judge, Senior Division, Baksa in Misc. (J) Case No. 02/2024 in Title Suit No. 13/2022, whereby the prayer for amendment of the Plaint by the present petitioner was rejected.
The facts relevant for consideration of the instant CRP (IO), in brief, are that the present petitioner, as plaintiff, had instituted a suit before the Court of learned Civil Judge, Senior Division, Baksa, praying for declaration of his right, title, and interest on the land mentioned in the schedule of the plaint, as well as for recovery of khas possession of the said land, for permanent injunction, cancellation of mutation in respect of defendant Nos. 1 and 2 and other consequential reliefs.
In the plaint filed by the plaintiff/ present petitioner, before the trial court in the aforesaid suit, it was pleaded by him that he is the owner of a plot of land measuring 14 Bigha 1 Katha, 19Lecha, fully described in Schedule A to the said plaint.
It is further pleaded therein that on 26.07.2021, the defendant Nos. 1 and 2 (present respondent Nos. 1 and 2) informed the plaintiff that they have purchased 4 Bigha 3 Katha and 10Lecha of land from the defendant No. 3 by executing registered Sale Deed No. 2367/1996.It was further pleaded therein that after the death of Ramesh Chandra Ojha, his wife Bibi Bala Ojha’s name was mutated in respect of the aforesaid land and it is she who executed the sale deed in favour of defendant Nos. 1 and 2.
The said suit was registered as Title Suit No. 13/2022. In the said suit, the defendant Nos. 1 and 2 appeared and filed their written statement on 28.11.2022, whereas the suit proceeded ex-parte against defendant No. 3. In the written statement, the defendant Nos. 1 and 2 took the plea that the present petitioner had sold 9 Bigha 16Lechaof land out of the suit land to one Ramesh Chandra Ojha by executing a Sale Deed on 03.06.1969 bearing Deed No. 4623/69 as well as the wife of Ramesh Chandra Ojha, namely Bibi Bala Ojha sold 2 Bighas of land to the defendant No. 1.
After filing of the written statement, the suit proceeded and the plaintiff's witnesses filed their evidence on affidavit and 29.06.2023 as well as 14.11.2023 was fixed for cross-examination of plaintiff's witnesses. Thereafter, on 13.02.2024, the present petitioner had filed an application under Order 6, Rule 17 of the Code of Civil Procedure, 1908, praying for amendment of the plaint by incorporating certain new prayers and also seeking amendment of some other inadvertent mistakes, which had crept in the plaint. However, by order dated 15.07.2022 passed in Misc.(J) Case No. 02/2024 in Title Suit No. 13/2023, the trial court had rejected the prayer for amendment. The said order of rejection has been impugned in this instant CRP (IO).
Mr. S Das, the learned counsel for the petitioner has submitted that the trial court had erred in rejecting the prayer for amendment of the plaint by holding that there was lack of due diligence on the part of the present petitioner in seeking amendment of the plaint so belatedly. He submits that the sale deed which is purported to be executed by the present petitioner in favour of Ramesh Chandra Ojha is a forged sale deed, and the petitioner was unaware of its existence. He submits that it is only when the defendant No. 1 and 2 had filed their written statement on 28.11.2022, wherein it was for the first time pleaded that the present petitioner had sold 9 Bigha 16 Lecha of land to the Ramesh Chandra Ojha, the petitioner for the first time came to know about the existence of the forged sale deed. He further submits that since the defendants have pleaded in the written statement that the present petitioner had already sold 9 Bighas 16 Lechas of land to Ramesh Ch. Ojha, he was expecting that the defendants would produce that document during the stage of framing of issues and submission of documents of plaintiff's witness. However, when same was not done, he applied for certified copies of the Sale Deed No. 4623/69 on 23.11.2023 and the said certified copies were furnished to him only on 07.12.2023 and as such, there was a delay in filing of the petition for amendment of plaint.
He further submits that the issue raised by the present petitioner regarding genuineness of the Deed No. 4623/69 is required to be decided for a just decision in the pending suit, which was filed by the present petitioner. As such, he submits that the trial court has erred in disallowing the amendment which was sought for by the present petitioner. He submits that while considering an application under Order 6, Rule 17 of the Court of Civil Procedure,1908, a liberal approach is to be adopted by the courts, as held by the Apex Court in several of its judgments. He submits that the object of Order 6, Rule 17 of the CPC is to prevent multiplicity of the proceedings in relation to those disputes, which may be settled in the single suit. He further submits that by allowing the said amendment, the defendants, (present respondents) would not be prejudiced in any manner as they would get ample opportunity to cross-examine the, the witnesses of the plaintiff. He further submits that the plaintiff's witnesses are yet to be cross-examined by the defendant's sides. In his support, he has relied the following ruling:
Life Insurance Corporation of India vs Sanjeev Builders Private Limited and Anr. reported in (2022) 16 SCC 1.
On the other hand, Mr. A. R. Sikdar, the learned counsel for the Respondent Nos. 1 and 2 has submitted that the Trial Court has correctly held that there was lack of due diligence in seeking the amendment of the plaint by the present petitioner. He further submits that as the trial has already been commenced and the petitioners have failed to show that the amendment could not have been sought for before commencement of trial, in spite of due diligence,hence, the trial court has not erred in any manner in rejecting theprayer for amendment. He submits that it is apparent from the pleadings made in the application under Order 6, Rule 17 by the present petitioner that they came to know about the existence of Sale Deed No. 4623/69 on 28.11.2022 when the present Respondent Nos. 1 and 2 had filed their written statement in the said suit. However, in spite of that, they waited till 23.11.2023 for filing certified copy of the said sale deed.He further submits that the application for seeking amendment was also belatedly filed on 13.02.2024 i.e. more than one year, two months of the date when the existence of Sale Deed No. 4623/69 came to the notice of the present petitioner. He further submits that since the Sale Deed No. 4623/69 was executed by the present petitioner in favour of the original defendant No. 3, namely, Ramesh Chandra Ojha, the defendant Nos. 1 and 2 were not supposed to have possession of the said sale deed, therefore, the question of their submitting the said sale deed at this stage of documents and issues does not appear. He, therefore, submits that the trial court was correct in rejecting the prayer for amendment of the plaint, which was belatedly made without due diligence on the part of the present petitioner. In support of his submission, he has cited following rulings.
Kailash Vs Nanhku and Others reported in(2005) 4 SCC 480.
ii) Vidyabai and Ors. Vs Padmalatha and Another, reported in (2009) 2 SCC 409.
On the other hand, Mr. N. Alam, the learned counsel for respondent No. 1 has also submitted that the Trial Court has made no error in rejecting the prayer for amendment on the ground of lack of due diligence on the part of the present petitioner. He submits that the respondent No. 3 has not received any notice from the trial court, and the suit is proceeding ex-parte against her. He further submits that the plea taken by the petitioner that they were waiting till framing of issues and to see whether the respondents submit the sale deed No. 4623/69 is not believable as according to Order 8 Rule 1 of the Code of Civil Procedure, 1908, even the defendants have to submit the documents on which they are relying along with the written statement. He further submits that since the suit was proceeding ex-parte against defendant No. 3 as well as the legal heirs of defendant No. 3, the question of their submitting the said document does not arise.
He further submits that apart from challenging the sale deed No. 4623/69, the present petitioner has also sought for some more amendments like correcting the name from Mr. Ramesh Ojha to Ramesh Chandra Ojha in the plaint. Similarly, names of father of the plaintiffs from Gopi Boro to Gopinath Boro, as well as the boundaries of the suit land in the scheduled given to the plaint. He further submits that another amendment which was sought for was the incorporation of paragraph No. 4 B in the Plaint, namely the suit land falls within the Tribal Belt, therefore, executed between a tribal and non-tribal is void ab initio. This fact was known to the petitioner even prior to filing of the suit. However, no clarification has been given why belated amendment was sought for seeking incorporation of the aforesaid amendment. He, therefore,submits that the trial court has correctly rejected the prayer for amendment made by the present petitioner. In support of his submission, the learned counsel for respondent No. 3 has cited following rulings:
Pandit Malhari Mahale vs. Monika Pandit Mahale and Others, reported in(2020) 11 SCC 549.
I have considered the submissions made by learned counsel for both sides, and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.
In the case of “Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another” (supra), which is cited by the learned counsel for the petitioner in this case, the Supreme Court of India, while laying down the general principles which should be followed when an application under Order VI Rule 17 of the CPC may be allowed, has observed as follows: -
“71.Our final conclusions may be summed up thus:
71.1.Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived.
71.2.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 6 Rule 17CPC.
71.3.The prayer for amendment is to be allowed:
71.3.1.If the amendment is required for effective and proper adjudication of the controversy between the parties.
71.3.2.To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and (c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
71.4.A prayer for amendment is generally required to be allowed unless:
71.4.1.By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration.
71.4.2.The amendment changes the nature of the suit.
71.4.3.The prayer for amendment is mala fide, or
71.4.4.By the amendment, the other side loses a valid defence.
71.5.In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
71.6.Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
71.7.Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
71.8.Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
71.9.Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
71.10.Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
71.11.Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi [Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897] .)
On perusal of the aforesaid guidelines, it appears that the Apex Court has emphasized in taking a liberal approach while considering an application for amendment of pleadings under Order VI Rule 17 of the Code of Civil Procedure, 1908. However, it also appears that it has nowhere stated that the embargo provided for in the proviso to Order VI Rule 17 CPC may be diluted. For taking a liberal approach in an application under Order VI Rule 17 of the Code of Civil Procedure, 1908, the Court has to first come to the conclusion that the embargo in the proviso to Order VI Rule 17 is not attracted to the application for amendment of pleading made by the applicant. This Court is of considered opinion that if in a case where the trial has already commenced and there are materials on record to indicate that in spite of due diligence the party could not have raised the matter before commencement of trial, the Court may well within its jurisdiction to allow such a prayer for amendment. However, if it comes to a negative finding and there is apparent lack of due diligence on the part of the applicant, the prayer for amendment shall not be allowed. This is more so as the word "shall" has been used in the proviso to Order VI Rule 17of the Code of Civil Procedure, 1908. Hence, if the Court comes to a finding that the amendment sought for could have been prayed by the applicant before the commencement of trial, and it is not a case where in spite of due diligence such an amendment could not have been prayed for, the Court may be well within its jurisdiction to reject the prayer for amendment.
In the instant case, it appears from record that the written statement was filed by the defendant Nos. 1 and 2 before the Trial Court on 28.11.2022, wherein they specifically took the plea that the petitioner had sold the land measuring 9 Bigha 16 Lecha to one Ramesh Chandra Ojha. However, it appears that the petitioner had applied for the certified copy of the sale deed No. 4623/69 after more than one year of the said date, that is on 23.11.2023, and thereafter filed the application seeking amendment of the plaint only on 13.02.2024. In the meanwhile, the Trial Court had already framed the issues, and the evidence on affidavit of the plaintiff's witnesses were submitted, and the matter was fixed for cross-examination of PWs on 14.11.2023. The plea of the petitioner that he was waiting for the defendants to submit the copy of the sale deed in the suit is not acceptable, as along with the written statement filed by defendant Nos. 1 and 2, no such copy was submitted, and the suit proceeded ex-parte against defendant No. 3. As such, the ground stated by the petitioner that he waited for more than one year after coming to know about the sale of the said land in favour of Ramesh Chandra Ojha by him, on the ground that he was expecting that the defendants would produce the documents during the stage of framing of issues, clearly indicates that there has been total lack of due diligence by the petitioner in seeking the amendment which has been sought for in this case.
This court is of considered opinion that it is clearly not a case where, had he acted diligently, he could not have sought for the amendment before the commencement of trial in the above-mentioned title suit. As discussed earlier, the embargo in the proviso to Order VI Rule 17 CPC is an absolute embargo due to the use of the word "shall" in the same, and if the Court comes to a conclusion that there was lack of due diligence in seeking the amendment of the pleading by the applicant, it has no other option but to reject such a prayer.
Under such circumstances, this Court does not find that the conclusion arrived at by the trial court in the impugned order to be a wrong conclusion justifying any interference by this Court in the same in exercise of its supervisory power under Article 227 of the Constitution of India.
In view of discussions made and reasons stated in the foregoing paragraphs, this CRP(IO) is hereby dismissed.
The stay granted earlier on further proceedings of Title Suit No. 13/2022 is hereby vacated. The trial court shall proceed with the suit and bring it to its logical conclusion at the earliest.
Let a copy of this judgment be sent to the trial court by the Registry.
The parties are left to bear their own costs.