Gujarat High Court
Bharat Petroleum Corporation Ltd vs Reliance Industries Ltd on 9 May, 2025
NEUTRAL CITATION
C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025
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Reserved On : 23/04/2025
Pronounced On : 09/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15380 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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BHARAT PETROLEUM CORPORATION LTD.
Versus
RELIANCE INDUSTRIES LTD.
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Appearance:
LD. SENIOR COUNSEL MR. NAVROZ H. SEERVAI WITH MR SP
MAJMUDAR, MR. MURTOGA KOSHWALLA AND MR. A. M. ALGAUS MR
SP MAJMUDAR (3456) for the Petitioner(s) No. 1
LD. SENIOR COUNSEL MR. MIHIR JOSHI MR. MIHIR JOSHI WITH
LEARNED ADVOCATE MR. KUNAL VYAS WITH LEARNED ADVOCATE
MR. DEVARSH TRIVEDI, LEARNED ADVOCATE MR. ARJUN JOSHI AND
LEARNED ADVOCATE MS. NITYA JOSHI WITH GANDHI LAW
ASSOCIATES(12275) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Kunal Vyas for Gandhi Law Associates waives service of Rule on behalf of respondent.
2. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs:-
"(a) YOUR LORDSHIPS may be pleased to issue appropriate writs, orders or directions quashing and setting aside the Impugned Order dated 29.08.2024 below Exhibit 290 in Page 1 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined Special Civil Suit No. 182 of 2010 passed by the Learned Additional Senior Civil Judge, Jamnagar (Annexure-A), to the extent that it denies the reliefs sought by the Petitioner and imposes costs on the Petitioner and be further pleased to pass appropriate orders/directions allowing the application below Exhibit 290 in Special Civil Suit No. 182 of 2010 under Order VI Rule 17 of the CPC filed by the Petitioner in terms thereof (Annexure-I);
(b) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the effect and operation of the Impugned Order dated 29.08.2024 below Exhibit 290 in Special Civil Suit No. 182 of 2010 passed by the Learned Additional Senior Civil Judge, Jamnagar (Annexure-A) to the extent that it denies reliefs sought by the Petitioner and imposes costs on the Petitioner;
(c) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay all further proceedings in Special Civil Suit No. 182 of 2010 before the Learned Additional Senior Civil Judge, Jamnagar;
(d) YOUR LORDSHIPS may be pleased to grant Interim or ad-interim reliefs in terms of (b) and (c);
(e) Costs;
(f) Any other just and equitable reliefs in the interest of justice in the facts and circumstances of the case may be granted."
3. As far as possible, the parties will be referred as per their original position before the Trial Court.
4. The short facts which are necessitated as under:-
4.1 The petitioner happens to be plaintiff who instituted Special Civil Suit no.182 of 2010 (Old Title Suit No.559 of 1995) against the Respondent-defendant, which is at present Page 2 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined pending before Additional Senior Civil Judge, Jamnagar.
4.2 It is a case of plaintiff that the land admeasuring 349-37- 44 Hectares, comprising of several survey numbers situated at Village Moti Khavdi, District Jamnagar, Gujarat ("Suit Land") was allotted to the plaintiff, which is particularly described in Schedule to Exhibit A to the plaint and depicted on the map at Exhibit B to the plaint, for the purpose of setting up a crude oil terminal station.
4.3 It is the case of the plaintiff that Lands cumulatively admeasuring 148-76-92 hectares belonging to Government of Gujarat were allotted by virtue of an order dated 23rd December 1994 bearing no. Land/1/2312/94. 4.4 It is further the case of the plaintiff that Lands cumulatively admeasuring approximately 200-60-52 Hectares of private land acquired by the Government of Gujarat and vested in the plaintiff by Consent Award dated 27th October 1994, Regular Award under Section 11 of the Land Acquisition Act, 1894 vide LAQ Case no. 8/93 dated 12 th December 1994 (duly modified by amended award dated 6th June 1995) and Page 3 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined supplementary award dated 29th January 1996. 4.5 It came to the knowledge of the plaintiff that under the pretext of building a boundary wall on the adjacent land, the defendant (in its erstwhile capacity as Reliance Petroleum Limited) was building a boundary wall beyond the defendant's property thereby attempting to encroach upon the Suit Land. 4.6 The plaintiff appears to have filed the said suit under the provisions of Specific Relief Act, 1963, on 29 th November, 1995 initially against the Reliance Petroleum Limited (predecessor of defendant-respondent herein), seeking various reliefs as prayed in the suit. The unamended prayers made in the suit when filed read as under:-
'(a) for an order and decree for permanent injunction against the Defendant restraining and prohibiting them, their servants, agents, contractors, officers, sub-ordinates from entering upon and/or remaining on and/or from constructing any boundary wall or doing any activity on the land acquired for the plaintiff and all lands encompassing the land Plaintiff mentioned in the Exhibit B hereto.
(b) for an order against the Defendant restraining and prohibiting them, their servants, agents, officer, sub-
ordinates from encompassing and/or in any way interfering with the possession and/or enjoyment of the land mentioned in the Exhibit B hereto by the Plaintiff.
c) that pending the hearing and final disposal suit, Hon'ble Court be pleased to pass interim injunction in terms of Page 4 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined prayer (a) and (b) above
d) for ad-interim injunction relief in terms of prayer (a) and (b) above
e) for cost of the suit
f) for such further and other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.' 4.7 The plaintiff appears to have filed an injunction application below Exh.5 as well as an application below Exh.10 for appointment of Court Commissioner to survey the suit land. The Trial Court appears to have allowed the application seeking appointment of Court Commissioner, thereby, appointed stenographer of Court as Court Commissioner, who has submitted his report on 11.12.1995, expressing his inability to carry out commission work due to obstruction created by defendant and so also he could not identify the exact demarcation of suit land. Thus, report of Court Commissioner was inconclusive, so, the plaintiff appears to have filed an application below Exh.21 for appointment of Suveryer / District Inspector Land Records (for short "DILR") and the office of DILR to undertake survey or panchnama.
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NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined 4.8 Such application filed below Ex. 21 was remained pending for quite a long time as it appears that defendant sought 65 adjournments from time to time, which is so recorded by the Trial Court in its order and finally, it filed its reply on 05.09.2023 below Exhibit 250.
4.9 After hearing the parties, the Trial Court vide its order dated 14.09.2023 has granted the application filed below Exhibit 21, thereby, surveyor from the office of DILR was appointed. So, after about 28 years, the surveyor was appointed by the Trial Court.
4.10 It further appears that at given point of time, on 18.12.1995, there was a meeting held between the parties to the suits which was recorded in the form of minutes of meeting, whereby, it has been agreed between the parties that plaintiff is the sole owner of 839.67 areas of the land at Moti Khavdi, District Jamnagar which was acquired and allotted to plaintiff by Government of Gujarat for its marketing terminal to evacuate products of original defendant i.e., RPL. It has been agreed that original defendant has no right, title and Page 6 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined interest in such land.
4.11 It is further agreed that original defendant will not enter upon such land and carry out any activities without written authority from plaintiff and in case of any such activity unauthorisdely carried out, the plaintiff would be entitled to remove the same at the costs of original defendant. 4.12 It was so agreed in the minutes of meeting that if plaintiff would not build the terminal for its marketing activities either directly or through any joint venture, shall transfer the piece of land subject to all necessary approvals and mutual agreed price to the original defendant who will own and operate marketing terminal of company. 4.13 It was so agreed that as such the minutes of meeting would be placed before the Trial Court in the pending suit, thereby, the suit can be disposed of in terms of minutes of meeting. It further appears that such minutes of meeting was submitted before the Trial Court, thereby, it has disposed of injunction application filed below Exhibit 5 vide its order dated 22.12.1995.
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NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined 4.14 It further appears that at that point of time, the defendant has not filed any written statement. Nonetheless, the suit was not disposed of but remained pending before the Trial Court.
4.15 The issues were framed on 01.11.2012. According to the claim of plaintiff, defendant continued the construction of boundary wall on the suit land and have been completed it and so it had filed the amendment application below Exhibit 145 seeking additional prayer which came to be allowed by Trial Court vide its order dated 12.12.2014. 4.16 As amendment application came to be allowed thereby amendment as prayed for granted by trial Court thereby, an additional prayers, which were permitted to be incorporated in the original suit, which reads as under:-
"(a/a) The Construction done by the deft, company in the land of the plaintiff company. It may be removed and defendant be ordered and defendant be orderd to removed the said construction and to put the land in to if original condition and order be passed against defendant to remove the contractions of wall and other constructions done in the land of plaintiff.
(a/b) It is declared that defendant has no right to do any constructions and the construction of compound wall in the land of the plaintiff."Page 8 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025
NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined 4.17 The defendant for the first time filed his reply / written statement to the amended plaint below Exhibit 171 on 16.12.2015.
4.18 It further appears that Government of Gujarat conducted a survey of land situated in Gujarat to undertake resurvey / promulgation of land situated in State of Gujarat, thereby, the suit lands were also resurveyed and given new survey number. In view of the resurvey / promulgation, the plaintiff had filed another amendment application below Exhibit 178 to incorporate new survey number on 07.03.2017 which came to be allowed by Trial Court vide its order dated 16.12.2017.
4.19 The defendant appears to have filed an application below Exhibit 230 under Order VI Rule 11 of Civil Procedure Code, 1908 (hereinafter referred to as "CPC") contending, inter alia, that plaintiff has not paid requisite Court fee. The Trial Court vide its order dated 21.02.2022 has directed the plaintiff to pay necessary Court fee.
4.20 It has been so observed by Trial Court in its said Page 9 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined order that considering the amended prayer of plaint, the plaintiff desires to have possession of land, which alleged to have been encroached upon by the defendant and having so stated the value of subject matter to Rs.1,00,00,000/- in para- 15 of plaint, the plaintiff was ordered to pay requisite Court fees on it.
4.21 As observed hereinabove, the Trial Court has appointed surveyor from the office of DILR vide its order dated 14.09.2023, who had visited suit land but unable to carry out survey by expressing his inability vide his letter dated 23.01.2024 addressed to the Trial Court. He has requested the Trial Court that to mapping the suit land, the help of ISRO or Bhaskaracharya National Institute for Space Applications (for short "BISAG-N"), Gandhinagar is required. The surveyor appears to have given 4 (four) coordinates in relation to suit land and requested the Court to appoint any of such agency to get satellite images.
4.22 The Trial Court vide its order dated 30.01.2024 had accepted such request of surveyor, thereby, appointed BISAG- Page 10 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025
NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined N, Gandhinagar to obtain satellite images to the selected 4 (four) coordinates of the site.
4.23 The surveyor has accordingly with the help of BISAG-N obtained satellite images and completed survey work, thereby, submitted his detailed report with its forwarding letter dated 05.03.2024 to the Trial Court at Exhibit 279. 4.24 The plaintiff, after having gone through survey report and other documentary evidence came to know that defendant is in occupation or possession of suit land though plaintiff is title holder of suit land which is admitted by defendant in the aforesaid minutes of meeting recorded between the parties. It also appears that there was change in the name of original defendant from Reliance Petroleum Limited to Reliance Industries Limited. The plaintiff so felt as coming from the survey report of DILR that the defendant has illegally occupied suit land and inadvertently, relief of possession of suit land was not incorporated, which is according to the plaintiff is a consequential relief and so also, is entitled for mesne profit from defendants. Therefore, another Page 11 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined amendment application below Exhibit 290 has been filed, whereby, the Trial Court is requested to permit amendment of plaint as well as of prayers as prayed in aforesaid amendment application which is impugned one.
4.25 By way of a fresh amendment application, the plaintiff sought to add following prayers, which read as under:-
"18 (a/c) That this Hon'ble Court be pleased to declare that the Plaintiff as the lawful owner of the suit land mentioned in Exhibit A Le. "Schedule - A" comprising different survey numbers total admeasuring 349-37-44 Hectare situated at Moti Khavdi Village, Tal. & Dist. Jamnagar and encompassing in the land map marked as 'Exhibit-B' acquired and allotted by the Government of Gujarat for the Plaintiff and further praying for a decree of possession of the suit land encroached by the Defendant company.
18 (a/d) That pending the hearing of final disposal of the suit, this Hon'ble Court be pleased to directing the defendants to provide the list of the facilities installed/erected/constructed and/or being erected/constructed upon the suit land more particularly survey number wise and area wise to ascertain the exact nature of the damages for loss of the plaintiff business and further to claim mesne profit accordingly."
4.26 The defendant appears to have filed his reply below Exhibit 295 objecting impugned amendment application on various grounds so set out in its reply.
4.27 After hearing the parties, the Trial Court vide its order dated 29.08.2024 has partly allowed the impugned Page 12 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined amendment application filed below Exhibit 290, thereby, permitted the plaintiff to amend the plaint qua the name of defendant i.e., change of name of defendant as "Reliance Industries Limited".
5. Feeling aggrieved and dissatisfied with the aforesaid order passed by the Trial Court, the plaintiff has challenged the said order by way of the present writ application.
6. This Court on 23.04.2025 have heard learned senior counsel Mr. Navroz H. Seervai with learned counsel Mr. Murtoga Koshwalla with learned counsel Mr. A. M. Algaus, learned counsel Mr. S. P. Majmudar and learned advocate Mr. Jamshed Kavina for the petitioner and learned senior counsel Mr. Mihir Joshi with learned advocate Mr. Kunal Vyas with learned advocate Mr. Devarsh Trivedi, learned advocate Mr. Arjun Joshi and learned advocate Ms. Nitya Joshi for the respondent.
SUBMISSION OF THE PETITIONER - PLAINTIFF 6.1 Learned senior counsel Mr. Seervai would submit that order impugned passed by Trial Court is contrary to provision Page 13 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined of law and request this Court to interfere in it by exercising its power under Article 227 of the Constitution of India. 6.2 Learned senior counsel Mr. Seervai would submit that Trial Court has committed a jurisdictional error by applying proviso to Order VI Rule 17 of CPC while adjudicating impugned amendment application at Exhibit 290 by lost sight of the fact that suit was instituted in the year 1995 and amendment of Order VI Rule 17 of CPC would not be applicable to suit, which was instituted prior to such amendment in the provision.
6.3 Learned Senior counsel Mr. Seervai would submit that it has been clear from bare reading of Section 16 (2) (b) of Civil Procedure Code (Amendment) Act, 2002, (hereinafter referred to as ("Amendment Act, 2002") and well settled legal position of law that amended provision of Order VI Rule 17 of CPC is prospective in nature and not applicable to suit instituted prior to such amendment, which came into force on 1 st July, 2002. As undisputedly, the suit, in question, was filed in the year, 1995, and thus, proviso to Order VI Rule 17 of CPC would not Page 14 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined be applicable.
6.4 Learned senior counsel Mr. Seervai would submit that bare reading of impugned order itself suggests that Trial Court has erroneously referred the amended provisions of Order VI Rule 17 of CPC and such fact taken into account by the Trial Court while adjudicating the impugned amendment application, ultimately, resulted into miscarriage of justice. 6.5 Learned senior counsel Mr. Seervai would further submit that there was as such no delay on the part of plaintiff to bring amendment which is sought for in impugned application but the same is filed once report of DILR made available to the party on 05.03.2024, within no time, the impugned amendment application came to be filed on 13.06.2024 which could not have been rejected on the ground of delay. 6.6 Learned senior counsel Mr. Seervai would further submit that as per unamended provision of Order VI Rule 17 of CPC, the amendment can be granted, at any stage of proceeding without any rigors to proviso of said provision and as such, the plaintiff has not begun with its oral evidence, such Page 15 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined amendment, as prayed for, could not have been denied as no prejudice caused to defendant if proposed amendment would have been allowed.
6.7 Learned senior counsel Mr. Seervai would further submit that as per settled legal position of law, the amendment of pleading ordinarily should be allowed as the rule of procedure is handmaid of justice whereby endeavour of the Court is to see that real issues should come on the record and same can be decided between parties in one go whereby, one may avoid any multiplicity of suit proceeding between parties. 6.8 Learned senior counsel Mr. Seervai would further submit that necessary pleading supporting amendment, sought for, is already founded in the plaint itself and nature of amendment or new prayers, sought to be incorporated, is clarificatory and consequential in nature, which could not have been denied by the Trial Court.
6.9 So, making the above submission, learned senior counsel Mr. Seervai would request this Court to allow this writ application.
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NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined SUBMISSIONS OF RESPONDENT - DEFENDANT
7. Learned Senior counsel Mr. Joshi would submit that this Court may not interfere with impugned order while exercising its limited power under Article 227 of the Constitution of India as there is no gross error of law or any jurisdictional error committed by the Trial Court while rejecting the amendment application.
7.1 Learned Senior counsel Mr. Joshi would further submit that the amendment sought for is not only filed belatedly but prayers sought for in impugned amendment application is hopelessly time barred, thereby, there was no error on the part of Trial Court while rejecting such amendment. 7.2 Learned Senior counsel Mr. Joshi would submit that there is no supporting pleading with the prayers sought to be incorporated in the plaint and in absence of pleading, amendment sought for is vague which could not have been granted by Trial Court.
7.3 Learned senior counsel Mr. Joshi would further submit that in absence of any specific material particulars about the Page 17 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined dates on which defendant has encroached upon suit land of plaintiff and as such in not disclosing material facts in support of amendments, as sought for, which is otherwise vague, as per the settled legal position of law, it coud not have been granted, which is, in fact, not granted by Trial Court. 7.4 Learned senior counsel Mr. Joshi would submit that when amendment sought for is time barred having been filed after 29 years of filing of the suit, same can not be granted as prayed for. It is further submitted that the Trial Court did observe in the impugned order that plaintiff has submitted impugned delay application after submitting his affidavit in examination in chief and it is filed after long time from framing of the issue coupled with the fact that plaintiff has not disclosed in the plaint that it is in possession of suit land, rather it has been alleged that defendant in fact constructing over the suit land, thereby, it cannot be believed that with due diligence, plaintiff could not identify or found that defendant has illegally occupied the suit land. 7.5 Learned senior counsel Mr. Joshi would further submit Page 18 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined that Trial Court has categorically observed that amendment, which has been sought for, due to aforesaid reasons, cannot be granted in favour of plaintiff as it is not permissible in law to grant it. It is submitted that as per settled legal position of law when any amendment sought for is time barred, such amendment cannot be granted.
7.6 Learned senior counsel Mr. Joshi would submit that when plaintiff had filed an amendment application below Exhibit 142 in the year 2013, thereby prayer for removal of construction made by defendant over the suit land, the plaintiff could have sought for the relief as prayed in the impugned amendment application, which is now being filed, is time barred. 7.7 Learned senior counsel Mr. Joshi would candidly submit that proviso to Order VI Rule 17 of CPC would not be applicable in the present case and as such, to that extent, the Trial Court has not correctly applied the provision of law while adjudicating the impugned application. Nonetheless, when ultimate conclusion as ruled by Trial Court is justifiable and in consonance with settled position of law, the order impugned Page 19 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined may not be disturbed.
7.8 Lastly, learned senior counsel Mr. Joshi would submit that in a case where this Court would be inclined to interfere with the order impugned in the writ petition, the matter may be remanded back to the Trial Court to decide the issue afresh whereby aspect of amendment sought for is time barred or not can be answered by the Trial Court in a satisfactory manner and if such recourse may not be adopted by this Court, at least, right of defendant may be protected to agitate the issue of limitation vis-à-vis prayer sought to be amended and this Court may further observe that amendment sought for would be applicable from the date of filing of impugned amendment application and not to the date of institution of suit. 7.9 To buttress his arguments, learned advocate Mr. Joshi would rely upon the following decisions:-
(i)Muni Lal v. Oriental Fire & General Insurance Co.
Ltd. (1996) 1 SCC 90 at paragraphs 5 and 6.
(ii) Life Insurance Corporation of India v. Sanjeev Builders Private Limited -(2022) 16 SCC 1 @ paragraphs 20, 21, 71.4.1, 71.4.4 and 71.7.
(iii) Panchammal v. Rathinasamy reported in 2004 1 CTC 100 at paragraphs 13, 14 and 17 Page 20 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined
(iv) Ashutosh Chaturvedi v. Prano Devi reported in 2008 15 SCC 610 at paragraph 14
(v) Tej Ram v. Manju Rani reported in 2016 SCC Online P&H 2642 atparagraph 2
(vi) Rekha Pal v. Kamal Pal reported in 2019 SCC Online Cal. 7184 at paragraphs 4 and 9.
(vii) Basavaraj vs. Indira reported in (2024) 3 SCC 705 at paragraph 10.
(viii) Vishwambhar vs. Laxminarayan reported in (2001) 6 SCC 163.
(ix) Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another reported in (2022) 6 SCC 1.
7.10 Making the above submission, learned senior counsel Mr. Joshi would request this Court to reject the present replication.
REJOINDER TO THE SUBMISSION OF PETITIONER PLAINTIFF
8. Learned senior counsel Mr. Seervai in his rejoinder would submit that amendment sought for is neither time-barred nor can now be questioned by the defendant having not challenged the order impugned before this Court by way of an independent writ application. So, according to him, question of remanding the matter back to the Trial Court for re- adjudicating the impugned amendment application would not Page 21 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined arise.
8.1 Learned senior counsel Mr. Seervai would in his rejoinder arguments submit that question of limitation is a mixed question of law and it cannot be gone into while deciding amendment application and defendant is well within its right to file its amended written statement once amendment as sought for in the impugned application granted whereby no right of defendant would prejudice.
8.2 Learned senior counsel Mr. Seervai would submit that suit which was originally instituted by plaintiff meant for possession of suit land which is evident from bare reading of plaint as well as unamended/amended prayers made in the suit and so also observed by trial Court while directing plaintiff to pay court fees in an application filed by defendant. So, according to him, prayers now sought to be amended is only consequential in nature and not hit by any provisions of law of limitation as alleged by the defendant. 8.3 Learned senior counsel Mr. Seervai would further submit that when report of surveyor of DILR came on record with the Page 22 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined satellite imaging undertaken by BISAG-N, Gandhinagar for the first time, plaintiff came to know actual encroachment made by plaintiff on suit land and within no time, the impugned amendment application is filed which could not have been rejected on the ground of delay or laches. He would submit that as such defendant took almost 28 long years to file reply to application filed below Ex. 21 which finally allowed by trial Court in year 2023/2024. Had there been early adjudication of application filed below exhibit 21, thereby, surveyor of DILR could have been appointed at relevant point of time, plaintiff could have amended its plaint accordingly. So, according to him, so-called delay in bringing amendment was due to conduct of defendant for which plaintiff may not be penalized. 8.4 Learned senior counsel Mr. Seervai would submit that there is no vagueness in the amendment as sought for and it is supported by pleadings already made in the plaint, thereby, judgments which are cited by learned senior counsel Mr. Joshi in support of his argument would not be applicable to the facts of the present case in as much as, neither such plea was Page 23 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined raised and adjudicated before Trial Court and in any case, having not questioned the order impugned in present application by defendant, it has no right to raise such plea. 8.5 Learned senior counsel Mr. Seervai would submit that the Honourable Supreme Court of India has already clarified the position of law vis-à-vis granting amendment of pleading. He would submit that scope and ambit of granting amendment in pleading is well discussed and held in the case of Sanjeev Builders (Supra) wherein the Honourable Supreme Court summarised principles while granting amendment wherein clearly stated that issue of delay in applying amendment is not a ground to disallow the prayer in a case where delay is arguable; an issue of limitation may be framed separately for its decision.
8.6 Learned senior counsel Mr. Seervai would submit that when Trial Court has applied wrong provisions of law while adjudicating impugned application, this Court should exercise its power under Article 227 of the Constitution of India by quashing such order, thereby, may allow the impugned Page 24 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined amendment application without any further protection, as sought for, by the defendant vis-à-vis applicability of such amendment from the date of filing of amendment application and not given its effect from the date of institution of suit. So, Learned senior counsel Mr. Seervai would request this Court to allow the present application.
9. Heard learned advocates appearing for the respective parties at length. No other and further submissions are made. POINTS FOR DETERMINATION
1. Whether the proviso to Order VI Rule 17 of CPC would be applicable in a suit filed prior to 01.07.2002 or not?
2. Whether the Trial Court has committed gross error of law or a jurisdictional error while applying the proviso to Order VI Rule 17 of CPC while adjudicating the impugned amendment application?
3. Whether, in the facts and circumstances of the case, the amendment as sought for is vague and hopelessly time barred, thereby it cannot be granted as prayed for?
4. Whether, in the facts and circumstances of the case, the matter requires to be remanded back to the Trial Court as prayed by defendant?
5. Whether, in the facts and circumstances of the case, even if the amendment as sought for is granted, would it be allowed from the date of filing of the impugned amendment application or to be allowed by giving its effect from the date of institution of suit?
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NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined ANALYSIS POINT NO.1
10. The facts, which are referred to hereinabove, are not much in dispute, as considered from the petition and the documents annexed therewith.
11. It is worth to note that prior to amendment in CPC, the unamended Order VI Rule 17 of CPC reads as under:-
"ORDER VI Pleadings generally
17. Amendment of pleadings.-- 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 may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
12. The CPC was amended by Amendment Act 2002, which came into effect from 01.07.2002 whereby the proviso was inserted in Order VI Rule 17 of CPC, made it applicable from 01.07.2002. The amended Order VI Rule 17 of CPC after its amendment reads as under:-
"ORDER VI Pleadings generally
17. Amendment of pleadings.--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 may be just, and all such amendments shall be made as Page 26 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
13. Nonetheless, Section 16(2)(b) of (Amendment) Act 2002 reads as under:-
"Section 16(2) in The Code Of Civil Procedure (Amendment) Act, 2002 (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub- section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897 ),--
(b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999 ) and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act;"
14. As such, this issue no longer remains res integra having already been decided by Honourable Supreme Court of India in the case of State Bank of Hyderabad vs. Town Municipal Council reported in 2007 (1) SCC 765.
15. Thus, in view of the aforesaid provisions and decision of Honourable Supreme Court of India, now there would not be Page 27 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined any scintilla of doubt that any suit having been filed prior to 01.07.2002, the proviso to Order VI Rule 17 of CPC would not apply.
POINT NO.2
16. Having so observed while answering point No.1 that proviso to Order VI Rule 17 of CPC would not be applicable in a suit which was instituted prior to 01.07.2002. In the case on hand, the original suit was instituted in the year 1995. So, the proviso to Order VI Rule 17 of CPC has no applicability while adjudicating the impugned amendment application.
17. After going through the impugned order passed by the Trial Court wherein unfortunately, it has referred amended provisions of Order VI Rule 17 of CPC, thereby not only referred to proviso to Order VI Rule 17 of CPC but heavily banked upon while partially rejecting the impugned amendment application.
18. When proviso to Order VI Rule 17 of CPC would not be applicable to the facts of the present case, unmindful of Section 16 (2) (b) of (Amendment) Act, 2002 and aforesaid Page 28 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined decision of Honourable Supreme Court of India, the Trial Court has committed a gross error of law and so also jurisdictional error while referring and relying upon a provision, which was not all applicable and could not have been applied. To that extent, this Court is of the view that Trial Court has erroneously applied the amended provisions of Order VI Rule 17 of CPC while adjudicating impugned amendment application.
19. Having arrived at such finding, an interference by this Court while exercising its power under Article 227 of the Constitution of India is imperative. It is true that this Court should sparingly exercise its power under Article 227 of the Constitution of India but it is also settled that to keep subordinate Courts within bounds of their authority, this Court should exercise such power. (See Waryam Singh vs. Amarnath reported in AIR 1954 SC 215).
20. Having arrived at the aforesaid finding, this Court hold that Trial Court has erroneously applied wrong provisions of law while adjudicating the impugned delay application, thereby Page 29 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined committed serious procedural irregularities which require to be corrected by this Court while exercising its supervisory power under Article 227 of the Constitution of India, thereby, interference is required in the impugned order. POINT NO.3
21. Learned senior counsel Mr. Joshi during the course of his submissions so recorded hereinabove has emphasized that the amendment sought for is vague and not supported by his pleading, then not to be granted. Whereas, learned senior counsel Mr. Seervai in his rejoinder argument has envisaged that the amendment is only clarificatory and consequential in nature and supported pleading is already germane in the suit itself, and as a matter of course, the survey report of DILR would give strength to the pleading of plaintiff and lastly submitted that having not questioned impugned order by defendant by way of writ application and as such not so argued before Trial Court, defendant can not get any relief in present writ application filed by plaintiff.
22. The arguments of learned senior counsel Mr. Joshi, at Page 30 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined first blush, would attract but on its close scrutiny, would not require to be accepted, inasmuch as the amendment sought for is germane from the pleading made in the plaint and prayers made in the unamended and so also amended plaint itself. Further, while close reading of impugned order would not indicate that such plea regarding vagueness in amendment as sought for has been pressed into service by defendant before the Trial Court.
23. It is not out of place to mention here that while allowing defendant's application filed below Exhibit 230, thereby, the Trial Court has directed to plaintiff to pay requisite court fees vide its order dated 21st of February 2022, wherein it had been so observed that when prayers i.e., a/a and a/b sought to be incorporated by way of granting first amendment, the plaintiff was desirous to have possession of land which alleged to have been encroached upon by the defendant. Such observations made by the Trial Court would at least support the say of plaintiff that amendment which is now sought for, is not vague but consequential in nature.
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NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined
24. Prima facie, when it is a case of plaintiff that defendant has tried to encroach upon such land owned by plaintiff having earlier granted such prayer to that effect to be incorporated in plaint as referred herein above while recording short facts of the case and there is some material available on record to support such facts, it would not be correct to say that amendment sought for is vague and having not supported by pleading, cannot be granted.
25. Thus, the judgments, which are relied upon by learned senior counsel Mr. Joshi in support of his plea of vagueness of amendment are not applicable to the facts of the present case.
26. So, I am of the view that amendment sought for by plaintiff is not vague in nature, thereby it can be granted.
27. As far as issue of limitation vis-à-vis amendment sought for as hopelessly time barred in concern, it is by now well- settled position of law that mere delay in filing amendment is no ground to disallow such prayer seeking amendment. When the aspect of delay is arguable one, the prayer for amendment could be allowed and issue of limitation may be framed by Page 32 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined Court to be adjudicated upon as per the pleading and evidence comes on record.
27.1 At this stage it would be profitable to rely upon the decision of Hon'ble Supreme Court in the case of Sanjeev Builders (Supra), wherein it has been held as under:-
"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 Page 33 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined 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 hyper technical 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.Page 34 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025
NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined 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] .)"
(emphasis supplied) 27.2 It is true that amendment sought for raised hopelessly time-barred claim, naturally requires to be viewed differently, and in that factual situation, an issue of limitation is not an arguable one. In such situation, the amendment may not be granted being time barred. Nonetheless, in a case where if delay in bringing amendment is arguable one then such amendment outright can not be rejected/refused but in that case, such amendment be allowed and so far an issue of Page 35 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined limitation can be framed and adjudicated by Trial Court in accordance with law as per evidence coming forth on record of the suit.
27.3 In the case on hand, if one sees the unamended prayer of suit which is so referred hereinabove, it would suggest that plaintiff has already asked for prohibitory relief of injunction restraining defendant either from entering upon and/ or remaining on and/ or from constructing the boundary wall or doing any activity over the land acquired by the plaintiff.
27.4 For the first time, the plaintiff filed an application seeking an amendment by filing an application below Exhibit 142, thereby, prayers were amended wherein plaintiff sought for removal of construction carried out by defendant over the suit land. Such amendment application came to be filed in the year, 2013 which was allowed by Trial Court vide its order dated 12.10.2014.
27.5 Further, on an application filed by the plaintiff below Exhibit 21, the Trial Court has appointed the surveyor of DILR on 14.09.2023, who after undertaking the survey as Page 36 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined referred to hereinabove, submitted his report vide its forwarding letter dated 05.03.2024 (Exhibit 279), whereby, according to the plaintiff, it came to know that how the defendant has encroached over the suit land which was undisputedly owned by plaintiff as per minutes of meeting signed by the parties.
27.6 Thus, the plaintiff has filed the impugned amendment application on 13.06.2024 below Exhibit 290. The prayer sought to be added by way of an amendment as claimed to be consequential relief is concerned, it is in relation to asking for possession of suit land encroached by defendant company and so also mesne profit is concerned, as per Article 65 of Limitation Act, any such relief to immovable property seeking possession of property based on title, the period so prescribed is 12 years when the possession of defendant becomes adverse to the plaintiff. Whereas, prayer qua mesne profit would not be apparently time barred but its entitlement and from which date will have to be decided on completion of trial of suit.Page 37 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025
NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined 27.7 Prima facie, without expressing any final opinion on issue of limitation, if one considers date of first amendment application filed in the year 2013, whereby, plaintiff having prayed for removal of construction put up on the suit land by defendant, whereby, plaintiff could have asked for securing possession of suit land from defendant and so also mesne profit, then also impugned amendment application is filed within 12 years having so filed in the year 2024.
28. Thus, if this Court examines the aforesaid dates and events which took place prior to filing of impugned amendment application, issue of limitation so raised by the defendant is arguable one which can be agitated by defendant in its written statement, once amendment, as sought for, is granted. But in no case issue of limitation so raised by defendant can be decided without leading evidence by respective parties. So, issue of limitation in case on hand would be mixed question of law and fact to be tried in accordance with law.Page 38 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025
NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined POINT NO.4
29. Learned senior counsel Mr. Joshi having submitted that in a case where this Court would interfere with the impugned order on the ground that Trial Court has considered the amended provisions of Order VI Rule 17 of CPC, then this Court should remand the matter back to the Trial Court, thereby, the Trial Court can re-adjudicate the impugned amendment application afresh. Such argument was strongly opposed by learned senior counsel Mr. Seervai.
30. Ordinarily, this Court, having come to the conclusion that Trial Court has committed manifest error while applying wrong provision of law in application, it quashes the order and order to remand the matter back for its re-adjudication. Nonetheless, considering the fact that suit was filed in the year 1995 and by now the trial has commenced as plaintiff has tendered his oral evidence or affidavit in the lieu of examination-in-chief, and further for the reasons so assigned herein below, this Court would not like to accept the request made by learned senior counsel Mr. Joshi. So, not intending to remand the Page 39 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined matter back to the Trial Court for fresh adjudication of impugned amendment application.
30.1 The impugned amendment application needs to be judged as per unamended provision of Order VI Rule 17 of CPC. The plain reading of unamended provision of Order VI Rule 17 of CPC would suggest that amendment can be granted in favour of party to bring it at any stage of proceeding.
30.2 It is now well-settled legal position of law that rule of procedure is handmaid of justice and the party cannot be refused just relief merely because of some negligence, inadvertence or mistake remains in the pleading.
30.3 It is apt to refer the decision of Hon'ble Supreme Court in the case of Jai Jai Ram Monohar Lal vs. National Building Material Supply reported in 1969 (1) SC 869, wherein it has been held as under:-
"5. The order passed by the High Court cannot be sustained. 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 the Rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had Page 40 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. In Amulakchand Mewaram v. Babulal Kanalal Taliwala [1933 SCC OnLine Bom 72 : (1933) 35 Bom LR 569] , Beaumont, C.J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed:
"... the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought in the name of a non-existent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs."
(emphasis supplied) 30.4 It is also apt to refer the decision of Hon'ble Supreme Court in the case of Varun Pahwa Vs. Renu Chaudhary reported in (2019) 15 SCC 628 has observed under :-
"8. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, Page 41 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations."
(emphasis supplied) 30.5 It is also profitable to refer the decision of Hon'ble Supreme Court in the case of Abdul Rehman and another Vs. Mohd. Ruldu and others reported in (2012) 11 SCC 341 held thus :-
"10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:-
"17. Amendment of pleadings.--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 may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due Page 42 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined diligence, the party could not have raised the matter before the commencement of trial.
11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."
(emphasis supplied)
31. Further, while considering the amendment application, the Court should have a liberal approach towards granting of amendment, as sought for, which was nothing but to advance justice to the party subject to a condition that such Page 43 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined amendment, if granted, would not cause serious prejudice to the rights of opposite party which is accrued in its favour. It is by now well settled that all amendment be allowed unless well recognized exception so carved out by Apex Court [See Sanjeev Builders (supra)]. To avoid any multiplicity of suit proceeding and all claims/dispute between parties can be resolved in one go, Court should tend towards granting amendment rather rejecting it.
32. Having so considered the aforesaid facts and circumstances of the case, keeping in mind the ratio laid down by Hon'ble Supreme Court of India in the above referred cases and foregoing reasons, I am of the view that the matter is not required to be remanded back to the Trial Court. POINT NO.5
33. Learned senior counsel Mr. Joshi during the course of his submission would emphasize that in a case where this Court not remand the matter back to the Trial Court for re- adjudication of impugned amendment application afresh, in such eventuality, this Court may protect the interest of Page 44 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined defendant, thereby, amendment which has been sought for and may be granted, may be allowed from the date of filing the application of such amendment and not from the date of initial institution of the suit. Whereas, Learned senior counsel Mr. Seervai would submit that such recourse may not be adopted by this Court as amendment is only clarificatory and consequential in nature, thereby, no such protection requires in favour of defendant.
34. When this Court having so answered hereinabove, thereby, not inclined to remand the matter back to the Trial Court for re-adjudicating the impugned amendment application, considering the nature of controversy germane from impugned amendment application, rights of parties are required to be protected by this Court following the principle of equity, fair play and justice.
35. The issue of limitation in the present case considered to be mixed question of law and fact, and having so answered earlier that amendment, sought for, is not hopelessly time- barred, but at the same time, it would not be out of place to Page 45 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined observe that plaintiff could have sought for such clarificatory and consequential pleas when it had filed first amendment application in the year 2013 and or at time of instituting suit itself as the case may be.
36. So, considering such peculiar facts and circumstances of the present case, this Court would like to accept the submissions of learned senior counsel Mr. Joshi to the extent that amendment sought for by the plaintiff may be given effect from the date of impugned amendment application but it would not relate back to the date of initial institution of suit.
37. As such, it is now well-settled legal position of law that in appropriate cases, the Court while granting amendment can restrict the application of doctrine of relation back and permit the application of amendment from the date the amendment is allowed.
38. It would be profitable to rely upon the decision of Hon'ble Supreme Court in the case of Sampath Kumar Vs. Ayyakannu reported in (2002) 7 SCC 559 wherein the Hon'ble Supreme Court has held thus:-
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NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined "10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma v. Mamtha Shenoy [(2001) 8 SCC 561] .)
11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit.
The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed."
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39. Thus, considering the aforesaid peculiar facts and circumstances of the present case and nature of controversy germane during pendency of suit and so also the nature of amendment sought for as well as applying the doctrine of relation back as per ratio of Sampath Kumar (supra), I am of the view that amendment as sought for by the plaintiff is to be allowed but such amendment will be incorporated in the suit and the prayers in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
CONCLUSION
40. The upshot of the aforesaid observation, discussion and reasons would lead to following conclusion:-
40.1 The proviso to Order VI Rule 17 of the Code of Civil Procedure would not be applicable to the civil suit which is instituted prior to 01.07.2002.
40.2 In the facts of the present case, the Trial Court has erroneously applied the proviso to Order VI Rule 17 of the Page 48 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined Code of Civil Procedure by overlooking Section 16 (2) (b) of the Code of Civil Procedure (Amendment) Act 2002, thereby, committed serious errors of law and jurisdictional error by partly rejecting the impugned amendment application.
40.3 Considering the nature of amendment, applicability of unamended Order VI Rule 17 of the Code of Civil Procedure (CPC) applied to impugned amendment application and so also keeping in mind the ratio laid down by Hon'ble Supreme Court in respect of amendment of pleading as discussed hereinabove, this Court is inclined to allow the impugned amendment application filed by plaintiff below Exhibit 290.
40.4 Nonetheless, while allowing the impugned amendment application filed below Exhibit 290, it is hereby clarified that such amendment and prayers sought to be amended / permitted to incorporate in the plaint shall be deemed to have been made on the date on which the impugned amendment application has been filed in the suit i.e. 13.06.2024.
40.5 The plaintiff is hereby directed to submit the Page 49 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined amended plaint within a period of 15 days from the date of receipt of this order.
40.6 Likewise, it is open for the defendant to file additional written statement against amended plaint so filed by the plaintiff within two weeks from the date of receipt of the copy of such amended plaint.
40.7 It is open for the respective parties to pray to the Trial Court to add additional issues so required in light of amended pleadings of the parties.
40.8 In such situation, after hearing the parties, the Trial Court shall frame necessary additional issues so germane from amended pleadings of parties. Thereafter, the parties shall extend their cooperation to the Trial Court for early completion of trial of suit, which was instituted in the year 1995 and an endeavour be made by all concerned that such old suit can be adjudicated by the Trial Court at the earliest.
41. Before parting, it is made clear that Trial Court will have to decide all issues so raised before it as per evidence coming forth on record and without being influenced by any of Page 50 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025 NEUTRAL CITATION C/SCA/15380/2024 CAV JUDGMENT DATED: 09/05/2025 undefined observation so made hereinabove, albeit requires to decide lis between the parties in accordance with law.
42. In view of the aforesaid, the present writ application is hereby partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(MAULIK J.SHELAT,J) MOHD MONIS FURTHER ORDER After pronouncement of judgment, learned senior counsel, Mr.Mihir Joshi appearing for the respondent requests for stay of the order, which is opposed by learned advocate Mr.Jamshed Kavina with Learned advocate Mr.S.P.Majmudar for the petitioner.
Considering the fact that the suit is of the year, 1995, such request is hereby rejected.
Sd/-
(MAULIK J.SHELAT,J) MOHD MONIS Page 51 of 51 Uploaded by MOHD MONIS(HC01900) on Fri May 09 2025 Downloaded on : Sat May 10 21:21:15 IST 2025