Dev Swaroop And 3 Others vs District Judge, Etah And 6 Others
2017 Latest Caselaw 3337 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 36
 
Case :- MATTERS UNDER ARTICLE 227 No. - 4747 of 2017
 
Petitioner :- Dev Swaroop And 3 Others
 
Respondent :- District Judge, Etah And 6 Others
 
Counsel for Petitioner :- Ravi Prakash Srivastava,Jai Prakash Prasad
 

 
Hon'ble Mrs. Sunita Agarwal,J.

By means of the present petition, the order of rejection of amendment application passed by Special Judge S.C./S.T. Act Etah in Civil Appeal 54 of 2015 arising out of original suit pending before the District Judge, is under challenge. A suit for declaration and permanent injunction was filed against defendant Than Singh whcih was registered as Original Suit no.467 of 2002. The said suit was decreed on 13.05.2015. An appeal under Order 41 Rule 1 & 2 of the CPC has been filed which is pending before the Speical Judge (S.C./S.T.) Act Etah. In appeal, the amendment application under Order 6 Rule 17 was filed for amendment in the plaint relief which has been rejected by the order impugned dated 15.04.2017. The original relief prayed in the suit is as follows:-

¼v½ ;g fd oknh dk okn izfroknh Fkku flag ds fo:) ?kks"k.kkREd vkKfIr ds fy, vkKfIr fd;k tkos vkSj oknh ds fodz; i= dh fodzsrk Jherh lksoerh nsoh dks fookfnr Hkwfe/kjh dk vko.Vh fofu"Pr djds vko.Vh gksuk ?kksf"kr fd;k tkosA

¼c½ ;g fd oknh dk okn izfroknh Fkku flag ds fo:) o muds lg;ksfx;ksa ds fo:) fookfnr Hkwfe/kjh ds lEcU/k esa fu"ks/kkKk ds fy, vkKfIr fd;k tkos izfroknh o muds lg;ksfx;ksa dks oknh ds 'kkfUr fiz; v/;klu esa O;o/kku mRiUu djus ,oa fodz; i= okLrs Fkku flag dk nkf[ky [kkfjt djkus ds fuf"k) fd;k tkosA

Whereas the relief prayed by way of amendment read as under:-

26 ¼v½ ;g fd fMxzh cgd oknh f[kykQ izfroknh la[;k 1 ckcr ?kks"k.k bl vej dh ikfjr dh tkos fd] oknh ds gd esa fodz; i= fnukad 5-4-2002 Jherh lkseorh iRuh exyh iq=h tks/kh }kjk fu"ikfnr fd;k x;k gS rFkk izfroknh la[;k&1 ds gd es fodz; i= fnukad 27-03-2002 Jherh egkjkuh iRuh xqytkjh esa Jherh lkseorh ds uke ls Loa; dks lkseorh crkrs gq;s fu"ikfnr fd;k gS tks ,d 'kwU; vfHkys[k gS] vkSj ftldh dksbZ ikcUnh oknh ij ugha gSA

The submission of learned counsel for the petitioner is that the amendment could not have been rejected by the order impugned for the reasons that the dispute being raised by the petitioner/plaintiff regarding the validity of the sale deed dated 27.3.2002 allegedly executed in favour of defendant no.1 can very well be decided in the pending appeal. On account of rejection of amendment, the petitioner would suffer grave and irreparable loss and injury. The court below has erred in rejecting the amendment application on the ground that the claim of the plaintiff which has become time barred cannot be allowed by way of amendment.

Dealing with this submission of learned counsel for the petitioner, it would be relevant to note the law of amendment of plaint and the question of limitation which would arise for disposal of amendment application. The provision of the Code of Civil Procedure which empowers the Court to allow the amendment of pleadings are contained in section 153 and Order 6 Rule 17 of the Code of Civil Procedure. They are reproduced as under:-

"153. General power to amend.- The court may, at any time, and on such terms as to costs or otherwise as ft may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

17. Amendment of Pleadings.- the Court may at any stage at 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."

The plain reading of the said provision shows that the amendment of pleadings which may be just and necessary for the purpose of determining the real question and controversy between the parties cannot be rejected. However, the amendment which would be unjust so as to prejudice the interest of the other party for which other party cannot get any relief from the court must be rejected. In deciding whether the amendments are necessary to determine the real question in controversy between the parties, the court has to look to the pleadings of the parties. In case of amendment of plaint, the pleadings therein and to some extent, the averments in written statement are to be examined. It has to be determined by the court that whether the amendments sought in the pleadings is covered by the controversy raised in the plaint or in the written statement, as the case may be. Any pleading which is not necessary for determining the real controversy between the party cannot be allowed by way of amendment. It is the discretion of the Court, before whom the amendment is sought, to decide whether the amendment is necessary to determine the controversy raised before it.

The stage of the proceeding, however, would not be relevant in case, the parties seeking amendment is able to satisfy the court with the following two conditions(1) that the amendments would not prejudice or cause injustice to other side; (2) they are necessary for the purpose of determining the real questions in controversy between the parties.

It is, however, not permitted to introduce a new case at the later stage which would take the other party by surprise, by way of amendment or the new claims set up for the first time after expiry of the period of limitation. The reasons behind is that, as a general rule, the amendments, if allowed, would relate back to the date of filing of the suit and the other party would be prejudiced as he would not get opportunity to rebut the same.

Reference may be taken to the judgement in this regard in the case of Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors reported in AIR 1957 SC 363, Dondapati Narayana Reddy Vs. Duggireddy Venkatanarayana Reddy, reported in AIR 2001 SC, 3685.

There are, however, exceptions to this general legal preposition. Such cases where the plea that amendment sought is barred by limitation is found to be an arguable plea, the court should normally exercise its discretion in allowing the amendment application, leaving the issue of limitation to be decided in the suit. However, the discretion of the court, in such a case, is to be exercised judiciously, keeping in mind the well established principles of amendments. The plaintiff would be permitted to introduce a different relief by way of amendment provided necessary factual foundation has already been laid down in the pleading in regard to the title denied by the defendant in his written statement before the issue is decided in the trial.

Thus the position in such cases would depend upon the facts of the particular case. In such circumstances, in order to safeguard the interest of the other side and to achieve the dominant purpose of allowing the amendment i.e. to minimize the litigation, the court while allowing the amendment can place a rider that the amendment would not relate back to the date of the original pleading. Reference may be made to - L.J. Leach and Co. Ltd. v. Jardine Skinner and Co, AIR 1957 SC 357, Raghu Thilak D. John Vs. S. Rayappan & others, (2001) 2 SCC 472; Vishwambhar & ors. Vs. Laxmi Narayan, AIR 2001 SC 2607; Sampath Kumar Vs.Ayyakannu & another AIR 22 SC 3369; T.N. Alloy Foundry Co. Ltd. 2004(3) SCC 392; Pankaja & another Vs. Yellappa & others, (2004) 6 SCC 415;

Relevant observations of the Apex Court in Pankaja & another (supra) reports are reproduced as under :-

"14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

15. This Court in the case of L.J. Leach and Co. Ltd. & Anr. Vs. Messrs. Jardine Skinner and Co. - A.I.R. 1957 S.C. 357 has held :-

"It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice."

16. This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors. 2004 (3) SCC 392. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice."

In the light of the above noted legal position, it would be relevant to examine the pleadings in the plaint and written statement in the present case in as much as, the amendements of plaint herein has been sought at the stage of the appeal when the suit for declaration has been dismissed and certain rights had been accrued in favour of the defendants.

The original pleadings as stood in the plaint were that a sale deed was got executed in favour of the defendants with regard to the suit property. The said sale deed had not been executed by the original owner rather by one Maharani wife of Gulzari. The name of the defendants had been mutated in the revenue records and they were trying to interfere in the possession of the plaintiff on the basis of the said sale deed. It was further averred in the plaint that a criminal case was filed by one Suraj Singh son of Nek Ram Thakur against Gulzari and wife of Mukut Singh, and Somwati widow of Mangali. In the criminal case, the allotment made in the favour of Somwati widow of Mangali was found correct and they were absolved of the criminal charges. In a proceeding under section 210 of the Land Revenue Act, it was held that Somwati was widow of Mangali. It was thus pleaded that the sale deed executed in favour of the defendant no.1 Than Singh was a void document.

The said suit has been dismissed vide judgement and order dated 13.05.2017.The decree passed by the court below is not on record. In appeal, one of the ground taken to challenge the decree is that the sale deed executed in favour of defendant no.1 was an outcome of fraud whereas the sale deed dated 05.04.2002 having been executed by the original owner Somwati in favour of the plaintiff was a valid document. The trial court has erred in dismissing the suit for declaration and permanent injunction filed by the owner namely plaintiff/petitioner herein. In the amendment application, a relief was sought to be added for seeking a declaration of the sale deed dated 23.07.2002 executed in favour of the defendant no.1 as void document and further to declare that a valid sale deed dated 05.04.2002 had been executed in favour of the plaintiff by Smt. Somwati wife of Mangali. The challenge to the sale deed dated 27.03.2002 of defendant no.1 was on the ground that one Maharani wife of Gulzari had impersonated herself as Somwati, who was the actual owner of the suit property.

At this stage, it would be pertinent to note that the plaint relief was amended at an earlier stage before the trial court which fact is reflected from the photo copy of the plaint at page no.23 of the paper book, however, no relief for declaration of sale deed dated 27.03.2002 as null and void document had been sought. For the first time, this relief has been prayed by way of amendment before the first appellate court. The original relief in the plaint was of declaration to the effect that the vendor of the sale deed dated 5.4.2002 executed in favour of the plaintiff was actual allottee of the suit land. A further relief was sought by way of amendment that the sale deed dated 05.04.2002 was executed in favour of the plaintiff by Smt. Somwati was a valid sale deed, whereas the sale deed dated 27.03.2002 in favour of defendant no.1 was executed by one Smt. Maharani wife of Gulzari impersonating herself as Somwati. A further relief for permanent injunction was sought to be added by amendment against the defendant Than Singh and his agents to the effect that they may not interfere in the possession of the plaintiff over the suit property.

The relief as prayed in the original suit is for declaration of Smt. Somwati as actual allottee of the suit land. In other words, a relief of declaration had been sought in favour of Smt. Somwati as owner being allottee/Bhumidhar of the suit property. The controversy before the court, therefore, was that whether the alleged allotment made in favour of Smt. Somwati was a valid allotment. The question of validity of the sale deed executed in favour of the plaintiff by Smt. Somwati would come later on. The judgement and order of the trial court in dismissing the suit of the petitioners is not on record. By means of the amendment, the time barred relief has been claimed for declaration of the sale deed dated 27.03.2002 executed by Smt. Maharani wife of Gulzari as a void document.

In case, the proposed amendment is allowed, it would result in changing the cause of action for filing of the suit for the reason that the question of ownership of Smt. Maharani wife of Gulzari would require examination by the court. No relief had been sought in the original plaint against Smt. Maharani, wife of Gulzari who had been impleaded as defendant no.2 in the aforesaid suit. It is not on record whether she had contested the suit by filing her written statement. In absence of correct and complete facts, it is not possible for the court to examine the validity of the order of rejection of amendment application.

Moreover, it is settled law that the relief which is time barred cannot be sought ordinarily by way of amendment and only in special circumstance to be gathered from the facts of the case, amendment for seeking such a relief can be allowed by the Court in exercise of its discretional power, so as to determine the real controversy between the parties. No exceptional circumstance has been made out by the petitioner in the instant case so as to allow a belated claim by way of amendment of plaint. Rather in case the proposed amendments are allowed, they would result in causing manifest injustice to the defendants who had won before the trial court. This Court is, therefore, of the considered opinion that the proposed amendment are misconceived and were rightly rejected by the appellate court below.

There is no merit in the present petition. It is, accordingly, dismissed.

Order Date :- 18.8.2017

Himanshu