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Judgment
K. Lahiri, A.C.J.
Two questions are involved in this appeal from the appellate order passed by the Additional Deputy Commissioner, Khasi Hills, Shillong in M.C.A. No. 1 (T) of 1970. First, whether the appellate Court acted within its jurisdiction in directing the Plaintiff-Respondent to amend the plaint in exercise of the power under Order 6, Rule 17 of the Code of Civil Procedure, for short, ''the code''. The second question is whether the first appellate Court allowed the amendment suo-moto? If so, whether it was proper exercise of jurisdiction under Order 6, Rule 17 read with Section 153 of ''the Code''. No other contention has been raised by Mr. S.C. Burman Roy, learned Counsel for the Appellant.
The State Government sued the Appellant and another for recovery of a sum of Rs. 7800/- with interest. The Plaintiff averred that the Defendant was the Treasurer of the Phlangdiloin-Rangblang Test Relief Road, known as P.R.T.R.W. and in that capacity the Appellant had been given a sum of Rs. 8000/- for payment to the labourers out of which the Defendant paid only a sum of Rs. 200/- but could not account for Rs. 7800/-. Defendant No. 1 reported that the amount had been stolen. The Plaintiff pleaded that it was a false plea and sued for the recovery of the amount with interest. Several issues were framed, witnesses were examined and, ultimately, the trial Court decreed the suit with inerest against the Appellant only. The Appellant preferred an appeal wherein it was contended that the amount was not paid to the Defendant for the Test Relief Road known as P.R.T.R.W., but it was given for another road known as the phlangdiloi Bosora Road. In appeal it was urged by the Appellant that if the Plaintiff wanted to recover the amount paid to the Defendant for the Phlangdiloin Bosora Road, then the plaint was required to be amended and the Defendant-Appellant might be given opportunity to file a replication. The appellate Court held that excepting the said misdescription of the road, the Plaintiff had established its case. However, it accepted the contention of the Appellant that there was misdescription of the road in the plaint, and, accordingly accepting the contention of the Defendant set aside the judgment and decree and remanded the suit to the trial Court permitting the Plaintiff to amend the plaint as well as allowing the Appellant-Defendant No. 1 to file additional written statement. The appellate Court also directed that if additional issues were framed, the parties might also be given chance to adduce evidence. It may be stated here that there is a positive finding of the first appellate Court as to why it had to remit the suit and allow the amendment. We extract the finding of the Court-
Mr. Lewis rightly argued that if the Plaintiff wants to recover the money for the Bosora Road, then plaint must state about the Bosora Road to that the Defendant No. 1 may file his written statement accordingly and may also adduce evidance on that point.
Mr. Lewis was Counsel for the Defendant-Appellant No. 1, On his submission the amendment was allowed by the appellate Court and the suit was remitted to the trial Court upon setting aside the judgment and decree. Against the order of the first appellate Court directing the Plaintiff-Respondent to amend the plaint in exercise of its discretionary power under Order 6, Rule 17, the Appellant has preferred this appeal.
There is no dispute at the bar that the Plaintiff had sued the Defendants for recovery of money paid in connection with the construction of a Test Relief Road. The Plaintiff claimed that the Defendant could account for Rs. 200/- but failed to account for Rs. 7800/-, which Defendant No. 1 was bound to return to the Plaintiff. There was no denial that the amount was paid to Defendant No. 1 for a Test Relief Road. However, the road was described in the plaint a PRTW Road but the said Test Relief Road, according to the Defendant, was morefully known as P.B. Road or Phlangdiloi Bosora Road. It was merely a mis-description of the Test Relief Road. However, the suit was decreed. On appeal learned Counsel for the Appellant-Defendant urged that the mis-description be allowed to be amended granting liberty to the Defendant to file replication or additional written statement and to adduce additional evidence. In short, it was contended by the Appellant before the first appellate Court that the name of the road for which money was given was a different road. As such, it was a mis-description of the Test Relief Road in the plaint and the Defendant was prejudiced therefor. The Court accepted the contention of the Appellant and directed amendment of the pleadings by the Plaintiff. The appellate Court also permitted the Defendant to file replication and allowed the parties to adduce evidence. As such, technical mistake in the plaint was sought to be amended at the instance of the Defendant. The Defendant craved for justice in permitting the pleadings to be amended which was allowed by the appellate Court upon setting aside the decree of the trial Court. It is thus seen that the Court directed amendment of the plaint at the instance of the Appellant. It was the Appellant who claimed before the first appellate Court that the order would uphold the cause of justice. Now, the Appellant himself turns turtle and contends that the impugned order invited by him was illegal and void.
In our opinion the Appellant is estopped to take up the plea. The Appellant-Defendant is estopped or prevented by his acts and declaration to take up the stand. The principles of justice, equity and good conscience which govern trial of suits under the Rules for the Administration of Justice also prevent the Appellant to take up the contrary and contradictory stances. On this ground alone the appeal need be dismissed. However, let us examine the merit of the contentions.
The provision for amendment of the pleadings are intended for promoting justice. To refuse amendment to correct a palpable ''mistake'' is to punish the litigant for committing the mistake. We are of the view that all errors and mistakes which, if not fraudulently or intended to overeach, the Court ought to correct if it can be so done without in justice to the other side. Courts do not exist for the sake of discipline to punish the perpetrator of errors and mistakes, but the Courts exist for the sake of deciding matters in controversy. We cannot regard such amendment as a matter of favour or grace. It seems to us that no sooner it appears to the Court that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a right on the part of the erring litigant to have it corrected, if it could be so done without injustice. We feel that it is the obligation of the Court as well to cause such amendments to be made. This rule was laid down by Brown, L.J. a century ago in Cropper v. Smith (1884) 26 Ch. D. 700 .We feel that the principles should be more liberally applied in the scenario of Indian trial system. Bramwell, L.J., observed in the same vein in Tildesley v. Harper (1878) 10 Ch.D. 393 :
My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala-fide, or that by his blunder, he had done some injury to his opponent which could not be compensated for costs or otherwise.
There is no much difference between the English Rule contained in R.S.C. Order 20, Rule 5 and our Order 6, Rule 17 of ''the Code''. In Order 6, Rule 17 the word "may" is very meaningful. It grants a large and wide discretion to the Court. The power conferred need be exercised liberally. In permitting amendment the Court performs the sacred duty of doing justice between the parties in accordance with the provisions of ''the Code''. The rules of procedure should be intended to secure proper administration of justice. These are intended for promoting the ends of justice and not for defeating them. In our opinion, all amendments should be allowed which satisfy the conditions-(i) that it does not work injustice to the other side, and (ii) that it is necessary for the purpose of determining the real question in controversy between the parties. These are the tests laid down by the Supreme Court in : P.H. Patil v. K.S. Patil AIR 1957 SC 303; A.K. Gupta v. D.V.C AIR 1967 SC 357 , Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, The Supreme Court has persistently and consistently held that Court should allow amendment unless it is satisfied that the party applying for it was acting mala-fide, or that by his blunder he had caused injury to his adversary which cannot be compensated by cost. In L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., the Plaintiff originally brought the suit on the ground that non-delivery of the goods to the Plaintiff amounted to conversion and the suit was dismissed on the score that the parties stood in relationship of buyer and seller and not that of principal and agent. Before the Supreme Court the Plaintiff prayed for amendment of the plaint by raising an alternative claim of damages. Their Lordships allowed the prayer. In Ganesh Trading Co. Vs. Moji Ram, Beg, C.J., as he then was, speaking for the Supreme Court observed as follows:
It is clear from the foregoing summary of the main rule of pleadings that provisions for the amendment of the pleadings subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defenting them. Even if a party or its counsel is in efficient in setting out its care initially the short-coming can certainly be removed generally by appropriate steps taken by a party which must an doubt pry costs for the inconvenience or (sic) caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.
As such, generally, all amendments should be allowed. However, the principle is subject to the counter-veiling rule of practice that an amendment will be refused if it would result in prejudice or injury to the other side which cannot be properly compensated by costs, say, introduction to include a claim or relief by way of amendment which is barred by limitation. It should not be allowed to defeat a legal right already accrued to the other party. There is a plethora of decisions dealing with the contour of wide and large power of the Court to grant amendment. We refer but a few decisions, viz. Nichhalbhai Vallabhai and Others Vs. Jaswantlal Zinabhai and Others, ; Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, ; C.M. Vereekutty v. C.M. Mathukutty AIR 1981 SC 1933 . In Pandit Ishwardas Vs. State of Madhya Pradesh and Others, the Supreme Court has held that the pleadings may be allowed to be amended even at the appellate stage to enable a party even to raise a new plea. The pith and substance of the decision is that the procedural law is meant to uphold the cause of justice and not defeat them.
In Pokamal Agarwalla v. Shri Madhoram Thakursidas (1983) 1 GLR 192 one of us (K. Lahiri, J.) speaking for the Court relied on the decisions of the Supreme Court just quoted and observed:
In the present day trial system, the trend set by the Supreme Court is (sic) settle all differences of the contestants in a suit. The wholesome provisions of Order 6, Rule 17 in the context of the Indian litigants have been benignly construed and extended to meet the requirements of the litigant public.
Amendment may be allowed "at any stage of the proceedings". In the instant case the amendment has been allowed by the first appellate Court. It has been contended that the appellate Court had no jurisdiction to allow amendment. In Ishwar Das (Supra), the Supreme Court has held that amendment in appellate Court is permissible to enable a party to raise even a new plea. The appellate Court should, however observe, the well-known principle subject to which the amendment can be allowed. In Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, Hidayatullah, J. speaking for the Supreme Court held "as it was not one of those cases in which there was likelihood of prolonged litigation after remand or in which a new case would begin, Appellant was allowed to effect amendment." In the instant case as well we find that the order of remand permitting the amendment would not prolong the litigation after remand. If the necessary materials are already there on the record the amendment should be more readily allowed. In the instant case, we find that all materials are before the Court and the amendment allowed was to fully describe the Test Relief Road. As such, there will be no delay in disposal of the suit.
Even if the amendment is sought by a party at the suggestion of the Court, the order allowing amendment cannot be declared to be bad if it conforms to the principles of law contained in Order 6, Rule 17 of ''the Code.'' In Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, it has been held that-
There appears to be good foundation for what Mr. Setalvad says but merely because an amendment was sought by the Plaintiffs at the suggestion of the Court it would not be proper for us to dis-allow it unless there are good grounds for holdings that it was forced upon an unwilling party. That is, however, not the suggestion. For the Court wanting to do justice may invite the attention of the parties to defects in pleadings so that they could be remedied and the real issue between the parties fried.
(Emphasis added)
It thus appears that it is the duty of the Court to point out the defects and invite the parties to make necessary amendment in pleadings. If such an application is made even at the suggestion made by the Court, the order cannot be invalid. In Mohd. Fiazuddin Khan Vs. Govt. of India and Others, the Appellant prayed for amendment in the High Court but it was rejected. The Appellant wanted to amend the written Statement by the addition of pleas that certain items of properties of his deceased father were joint properties of the parties to the suit. On appeal to the Supreme Court the prayer for amendment was allowed.
In S. Kumar Vs. Institute of Constitutional and Parliamentary Studies and Others, the Appellant was dismissed several years ago but he did not ask for amendment of the plaint. Amendment was asked for in a writ petition under Article 136. It has been held that if a suit is filed now against the order of dismissal it would be barred by limitation. The prayer was rejected and the appeal was dismissed on the ground that the claim of the Petitioner had been barred by limitation. In Smti. Saroj Rani v. Sudarshan Kumar AIR 1984 SC 1592 , the Defendant sought for amendment of the pleadings before the Supreme Court. It was a proceeding under Hindu Marriage Act, 1955. The wife sought to assail the decree on the ground that the husband wanted the wife to have a decree for restitution of conjugal rights by some kind of a trap and then not to co-habituate with her and thereafter obtain the decree for divorce, Since there was no pleading to this effect, they were sought to be amended. On, scrutiny of the materials on record their Lordships held that the ground would be opposed to the facts alleged in the defence by the wife. Therefore, quite apart from the fact that there was no pleading which is serious and fatal mistake, there was no scope of giving any opportunity of amending the pleading at the stage of appeal before the Supreme Court permitting the wife to make out a totally inconsistent case. However, the prime cause is another fatal factor. The Supreme Court concluded that there was an irretrievable break down of the marriage and that the parties could no longer live together as husband and wife, and as such, it was better to close the chapter. The basic reason for refusal was, therefore, that no useful purpose would serve in permitting amendment. In Maitreyee Banerjee Vs. Prabir Kumar Mukherjee, in a revision amendment of plaint was allowed. The amendment did not allow bringing in any matter barred by limitation and there was no irreparable injury and injustice caused to the other party. It was held that no jurisdictional error was committed by the trial Court allowing the amendment. The Supreme Court held:
We are satisfied that this is not a case where the amendment would work serious injustice to the Respondent. The High Court in its power of revision ought not to have interfered in a case like this as no jurisdictional error was involved. This was not a case where the amendment sought was clearly barred by limitation so as to cause an irreparable injury to the Respondent.
The appeal was allowed.
In Mulk Raj Batra and Others Vs. District Judge, Dehra Dun and Others, it has been held that-
...We are of the opinion that the amendment as a whole ought to have been allowed. Accordingly we allow this appeal and direct that para 16 A should be incorporated in the written statement by way of amendment. It would be open to the Respondent No. 2 landlord to file his replication to the amended written statement.
In District Magistrate, Nowgong and Another Vs. Sarat Mudoi, the application for amendment of the memorandum of appeal under Land Acquisition Act 1894 was rejected by the High Court merely on the ground of delay. Their Lordships relied on Ganesh Trading Co. Vs. Moji Ram, (pr. 2) and allowed amendment.
In Haridas Aildas Thadani and Others Vs. Godrej Rustom Kermani, the Supreme Court held that the Court should he extremely liberal in granting prayer of amendment of pleading unless it is manifest that allowing amendment would cause serious injustice or irreparable loss to the other side. It has been held that the High Court was wrong in interfering with the discretionary order of the District Judge.
In Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, it has been held by the Supreme Court that the trial judge in granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties amendment of the pleading was necessary, and, therefore, the High Court should not have interfered with the order in its revisional jurisdiction.
As such, it will be seen that amendment of the pleading may be allowed by the appellate Court. It is the discretionary power of the Court. In the instant case it does not appear from the impugned order nor has it been argued before us that the amendment did not upheld the cause of justice, as it was the Appellant who had taken up the plea that the plaint should be amended. It is not pleaded before us that the impugned order has caused any injustice to the Appellant. It is within the jurisdiction of the appellate Court to remand the case to the lower Court with the direction that the parties be directed to amend the pleadings. The view that we have taken is based on the decision of the Supreme Court just alluded. In Niranjan Lal Bhargava Vs. Mt. Ram Kali Devi, the same view has been taken and we respectfully agree with the considered opinion. What we find is that the weight of authorities is in favour of the view that we have just taken. The power of the appellate Court to amend the pleading has been recognised apart from the decisions already relied in Dharmalinga v. Krishnaswami AIR 1949 Mad 467 , Nanduri Yogananda Lakshminarasimhachari and Others Vs. Sri Agastheswaraswamivaru, ; Ramchandra Jagannath Vs. R.S. Mundade, , Ghulam Mohammad v. Gh. Hassan AIR 1979 KLJ 354 ; Chadalavada Subba Rao Vs. Kasu Brahmananda Reddy and Others, ; AIR 1937 42 (Privy Council) ; Ayesha Khatoon v. Durga Sahaya AIR Cal. 108; Janardan Yadav v. B.S. Sunni Wakf Board AIR Pat 322; Jagdish v. Har Sarup AIR 1978 Del 233 ; and Surain Singh Vs. Swami Dhian Santosh Anandpuri and Another,
For the foregoing reasons, we hold that the appellate Court had jurisdiction vested in it by law to allow amendment of the pleading under Order 6, Rule 17 of the Code. We also hold that the appellate Court did not allow the amendment suo-moto.
It was the appellate Defendant who had contended in the first Appellant Court that the Plaintiff should be directed to amend the plaint and accepting the said contention, the appellate Court allowed the amendment. The Respondent-Plaintiff never objected to take the said order. As such, the impugned order is impeccable However, the only snag that we find is that the appellate. Court did not award any cost in favour of the Defendant-Appellant. It was surely for the reason that it was on the prayer and at the instance of the Defendant the order directing amendment of the pleading was allowed. However, the trial Court shall bear in mind and shall take into consideration the question while awarding costs. In the result, the contentions of the Appellant fail. No other contention has been raised by Mr. Burman Roy, learned Counsel for the Appellant.
In the result, the appeal is dismissed. We, however, make no order as to costs. Send down the records forthwith to the trial Court for expeditious disposal of the suit. It should be disposed of preferably within six months from the date of receipt of the records.