Tej Bahadur And 7 Others vs Fasiudeen And 4 Others
2018 Latest Caselaw 4331 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 36
 
Case :- MATTERS UNDER ARTICLE 227 No. - 8315 of 2018
 
Petitioner :- Tej Bahadur And 7 Others
 
Respondent :- Fasiudeen And 4 Others
 
Counsel for Petitioner :- Subhash Chandra Tiwari
 
Counsel for Respondent :- Awes Iqbal,Mukhtar Alam
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard learned counsel for the parties.

In a suit, namely Original Suit No. 92 of 2002 (Fasiudeen and others vs. Tej Bahadur and others) instituted on 29.2.2002, seeking declaration for partition of a house (hereinafter referred to as "the suit property"), written statement was filed by petitioners/defendant no. 1, 2, and 4 to 7 on 26.5.2003. The defendant no. 3 had filed a separate written statement on 5.12.2004. The defendant no. 8, who claimed to have stepped into the shoes of the defendant no. 3 and impleaded in the suit, filed his written statement on 5.10.2017. The suit has proceeded and the evidence of both the parties were concluded. At the stage of arguments, an amendment application dated 5.9.2018 was filed by defendant nos. 1, 2 and 4 to 7 seeking amendment of paragraphs '33', '34' and '36' of the original written statement Paper No. Ka-55 dated 26.5.2003. The amendment application registered as Paper No. 468-A was rejected by the trial Court. The matter was taken up in revision which was dismissed vide order dated 11.10.2018. Both the orders are under challenge in the present petition.

Learned counsel for the petitioners/defendants submits that the proposed amendments in the written statement are only explanatory in nature. The averments made in paragraph '33', '34' and '36' of the written statement are sought to be explained by means of amendment. It was not a case where the defendants sought to set up new pleadings or defence by way of amendment, nor it was a case where it could be said that any admission made in the written statement was sought to be withdrawn. The Courts below have committed illegality in rejecting the amendment application on the ground of delay. The Order VI Rule 17 CPC permits amendment at any stage of the proceeding which are necessary for the purpose of determination of the real question in controversy between the parties. The legislature does not imposes any limitation rather left it open for the court to decide as to whether the proposed amendments are necessary for the purpose of determining the real question in controversy and it is the discretion of the Court to allow amendment before or after the trial or even in appeal.

Placing Reliance upon the judgment of this Court in Om Rice Mill vs. Banaras State Bank Limited1, it is submitted that the amendment can be allowed even before delivery of judgment. It is contended that the amendments can be allowed even after the decree is passed, in appeal and cannot be rejected before decision in the trial court. In such a matter, the question of delay does not arise.

Placing the judgments of the Apex Court in Pankaja vs. Yellappa2; Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others3 and the judgment and order dated 5th May, 2009 in Sushil Kumar Jain vs. Manoj Kumar and another4, it is contended that in case of amendment of a written statement, the Courts should be liberal in allowing them as there would be no question of prejudice. Even addition of a new ground of defence or substitution or altering a defence or taking inconsistent pleas in the written statement, can also be allowed. If the proposed amendment seeks to only elaborate and clarify the statement made in the written statement, it cannot be rejected on the ground of delay. It is contended that since the suit was instituted prior to insertion of proviso to Order VI Rule 17 CPC by Amendment Act 22 of 2002 (came into force on 1.7.2002), the same would not be attracted to reject the proposed amendments on the ground of delay i.e. having been sought after the commencement of trial.

Aid of judgments of Apex Court in State Bank of Hyderabad vs. Town Municipal Council5 and Sumesh Singh vs. Phoolan Devi6 had been taken to substantiate the said submission.

Learned counsel for the respondents, on the other hand, defended the orders impugned with the assertion that the proposed amendments are not bonafide. The plaintiffs have filed the suit seeking partition of 5/6th share in the suit property on the basis of a sale deed executed by Mahendra Pal Singh and Dhal Gopal Singh with regard to their shares as also the shares of other heirs in the suit property. In paragraphs '33' and '36' of the written statement, the defendants/applicants took a plea of adverse possession over the shares of Mahendra Pal Singh and Dhal Gopal Singh, the predecessor-in-interest of the plaintiffs with the plea that they were not in possession of the suit property for more than 40-41 years and they had admitted the defendants being owner thereof. Their right in the suit property had been extinguished with their conduct and adverse possession of the defendants was to their knowledge who were admittedly true owners.

By means of the amendment, now the defendants/applicants are trying to insert a new plea that the true owners namely Mahendra Pal Singh and Dhal Gopal Singh were forcibly evicted from the suit property and even from the village and they were not residing in the village since more than 33-34 years. They tried but did not get possession of the suit property and the defendants as such continued in possession thereof.

The submission of learned counsel for the respondents thus is that the plea of adverse possession by acquiescence (of the true owners) is sought to be changed by the proposed amendments, after the suit had reached at the advance stage of final arguments. The amendments at such a belated stage are clearly hit by proviso to Order VI Rule 17 CPC. Moreover, the amendment cannot be said to be explanatory or clarificatory rather are malafide. No infirmity, therefore, can be attached to the conclusion drawn by the trial court.

As far as the question of application of proviso to Order VI Rule 17 CPC, it is contended that the said proviso would be attracted in relation to amendment of pleadings, which were filed after coming into force of Amendment Act 22 of 2002 w.e.f. 1.7.2002.

In the instant case, the written statement was filed on 26.5.2003, admittedly, after insertion of the said proviso. The Order VI Rule 17 CPC relates to amendment of pleadings and provides that the Court may, "at any stage" of the pleadings allow other party to alter or amend his pleadings. With the insertion of proviso to Rule 17, the amendment at a belated stated, after the trial has commenced cannot be allowed, unless the Court concludes that the proposed amendment could not have been raised by the party, in spite of due diligence prior to commencement of the trial. After insertion of the proviso, it is incumbent upon a party seeking amendment of his pleadings, to explain as to why such amendments could not have been brought prior to the commencement of the trial. Any amendment at the stage of arguments, after evidence are closed, will cause serious prejudice to the other party.

It is contended that Section 16(2)(b) of the Amendment Act 22 of 2002 saves only such pleadings which have been filed before commencement of Section 16 of the Code of Civil Procedure (Amendment Act 1999) (46 of 1999) and Section 7 of the Amendment Act 22 of 2002. In respect of any pleading filed after commencement of Section 7 of Amendment Act 22 of 2002, the proviso to Order VI Rule 17 CPC would attract. The judgment in State Bank of Hyderabad (supra) and Sumesh Singh (supra) relied by the learned counsel for the petitioners are distinguishable in the facts and circumstances of the present case.

To substantiate his submission, it is contended that the word "pleading" as used in Section 16(2)(b) of Amendment Act 22 of 2002 cannot be read to mean the word "suit". The word "suit" as referred in the above referred judgments of the Apex Court referred to the "plaint" and in that context only it has been held that the proviso appended to Order VI Rule 17 CPC shall not apply as the suit was instituted prior to the insertion of the said provision, by reason of Section 16(2)(b) of the Amendment Act 22 of 2002. The word "pleading" has been defined in Order VI Rule 1 of the Code of Civil Procedure as shall mean "plaint or written statement". The pleading as used in Section 16(2)(b) cannot be confused or related to the word "suit".

It is, thus, contended that the submission of learned counsel for the petitioners that since the suit, in the instant case, was instituted prior to commencement of Amendment Act 22 of 2002, the proviso appended to Order VI Rule 17 CPC is not attracted, is wrong interpretation of the provision.

It is submitted that while interpreting the provision, literal meaning has to be provided to the words of the statute. Plain and unambiguous construction has to be given without addition and substitution of the words. Emphasis was laid on paragraph 41(b) of the judgment of the Apex Court in Indore Development Authority vs. Shailendra (Dead) Through Lrs. and Ors. Yogesh Kumar and others vs. State of Madhya Pradesh and others7.

With the pronouncements of the Apex Court in Commissioner of Customs (Import), Mumbai vs. M/s. Dilip Kumar and Company and others8, it is contended that in applying rule of plain meaning, mere hardship or inconvenience to any party cannot be the basis to avoid any word or add anything to the statute, so as to alter the meaning of the language employed by the legislation.

Further in Salem Advocate Bar Association, Tamil Nadu vs. Union of India9, while examining the constitutional validity of the amendments made to the Civil Procedure Code by Amendment Acts 1999 and 2002, the Apex Court has upheld the validity of the proviso under Order VI Rule 17 CPC added by Amendment Act 22 of 2002. While explaining the object and purpose of insertion of the said proviso, it was held that the proviso, to some extent, curtails absolute discretion to allow amendment at any stage. After insertion of the proviso, if amendment application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. The result is that the defendants were required to explain as to why the proposed amendments could not be filed prior to commencement of the trial. In absence of any such explanation on the part of the defendant, it was not open for the trial court to allow such amendments. No infirmity, therefore, can be attached to the conclusion drawn by the trial Court.

The order of rejection of amendment application filed at the stage of final arguments i.e. after evidence are concluded, therefore, required no interference.

Heard learned counsel for the parties and perused the record. Before entering into the merits of the orders of rejection of amendment application filed by the defendants, it would be appropriate to first examine as to whether the proviso appended to Order VI Rule 17 CPC will be attracted in a "pleading" filed after insertion of the same by Amendment Act 22 of 2002. In other words, whether the word "pleading" used in Section 16(2)(b) can be read to mean "suit" and in a case of a suit instituted prior to its insertion, the proviso to Order VI Rule 17 CPC will not apply, to a pleading filed after coming into force of the Amendment Act 22 of 2002.

By Section 16 of Amendment Act 46 of 1999, in the First Schedule, the Order VI Rule 17 was omitted and by Section 7 of Amendment Act 22 of 2002, for rules 17 and 18 (as it stood immediately before its omission by Section 16 of Amendment Act 46 of 1999), the following rule has been substituted, namely:-

"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 de ermining 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."

Both the Amendment Acts 46 of 1999 and 22 of 2002 came into force on 1.7.2002. Result is that in the First Schedule, in Order VI Rule 17, a proviso has been inserted to provide that any application for amendment, filed after commencement of trial shall not be allowed ordinarily, unless the Court finds that the matter raised therein could not have been placed by the party concerned, in spite of due diligence prior to commencement of the trial.

Section 16(2)(b) of the Amendment Act 22 of 2002 reads as under:-

"16. Repeal and savings.- (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;"

A plain and simple reading of the said provision indicates that the omission of Rule 17 of Order VI of the First Schedule by Section 16 of Amendment Act 46 of 1999 and insertion of proviso to Rule 17 Order VI by Section 7 of the Amendment Act 22 of 2002, shall not apply in respect of any pleading filed before the commencement of the said Acts. That means, the changes made by the Amendment Act 46 of 1999 and the Amendment Act 22 of 2002 shall not apply in respect of an amendment of pleading filed prior to commencement of the said provisions. The meaning of "pleading" is provided in Order VI Rule 1 CPC which shall be 'plaint' or 'written statement'. The Rule 17 of Order VI also refers to the provisions for amendments of pleadings. The words "in respect of any pleading filed" can only be "in respect of any plaint or written statement filed". It shall, therefore, be read in relation to the date of filing of the said pleading, whether it is a plaint or written statement.

A plain and simple reading of Section 16(2)(b) of the Amendment Act 22 of 2002 leaves no scope for substitution of word "suit" in place of "pleading". Such an interpretation to the said provision would amount to deletion of the word "pleading" and insertion of the word "suit", which is not permissible, as it is not open for the Court to recast, rewrite or reframe the provision. Thus, in a case where the written statement is filed after insertion of proviso to Order VI Rule 17 CPC, the defendant, if seeks amendment of the same, has to apply by complying with the provisions of the proviso to Order 6 Rule 17 and the Court shall be obliged to see as to the requirement of the same are fulfilled or not.

It is further noteworthy that the word "suit" has been used at different places in the Code of Civil Procedure such as Orders IV, V, Order VIII Rule 6D, Order IX Rules 1, 2, 3, 4, 5, 6 and in all the said provisions, the said word has been referred in terms of the 'plaint' presented by the plaintiff. It has nowhere been used to mean "written statement". The written statement, filed by the defendant, wherever used in the Code is in relation to the "defence" of the defendant. Another settled rule of interpretation is that if a word is used in the statute at several places, then it has to be provided same meaning at all places.

From this angle also, it cannot be said that the word "pleading" in Order VI is interchangeable with the word "suit" or both can be provided the same meaning as per the convenience of the parties. There is no ambiguity or confusion in the provisions as noted hereinabove.

The reference to the judgments of the Apex Court in State Bank of Hyderabad (supra) and Sumesh Singh (supra) to submit that since the suit had been instituted in the year 2002 prior to insertion of proviso to Order VI Rule 17 CPC, the said provision will not be attracted in the matter of amendment of written statement filed after insertion of the said proviso, is of no benefit to the petitioner.

Now at this stage, the Court may examine the law relating to amendment of written statement.

So far as the Courts jurisdiction to allow amendment of pleadings is concerned, there can be no two opinion that the same is wide enough to permit amendments even in case where there has been substantial delay in filing amendment applications as the dominant purpose of allowing the amendment is to minimize the litigation. If the facts of the case so permits, it is always open for the Court to allow applications in spite of delay and latches in moving such amendment application. Even a relief which is barred because of limitation, can be allowed to be added by way of amendment and there is no absolute rule in this regard. There can be no straightjacket formula for allowing or disallowing an amendment of pleading. Each case depends on the factual background of that case. Thus the discretion in such case depends on the facts and circumstances of the case. The discretionary jurisdiction to deal with the amendment application has to be exercised in a judicious evaluation of the facts and circumstances of the case and if granting of amendment sub-serves the ultimate cause of justice and avoids further litigation, the amendment should be allowed.

Normally, the discretion lies on the Court to which the application for amendment is made and this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, will not interfere in the discretion exercised by the Court concerned unless a case of manifest injustice is made out.

It is equally well settled principle that the prayer of amendment of the written statement stands on different footings than that of the plaint. The general principle that the amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or nature of claim applies to amendments of plaint. However, in amendment of the written statement, addition of a new ground of defence, substituting or altering a defence or taking inconsistent pleas in the written statement, is not objectionable. The Courts are more liberal in allowing an amendment of a written statement than that of a plaint as the question of prejudice would be far less in the former than in the latter case. The general view is that when in the event of allowing the amendment, the other party can be compensated in money, the amendments of written statement should not be ordinarily rejected. However, this view is subject to an exception that the plea of amendment should not be allowed in a case where by the proposed amendment, other side would be subjected to serious injustice.

Further there is no inflexible rule as to the stage of allowing the amendment. Order VI Rule 17 CPC provides that amendment can be allowed at any stage of the proceeding, even at the stage of appeal. However, with the insertion of the proviso, the absolute discretion given to the Court has been curtailed to some extent i.e. the Court while allowing amendment has to record reasons for accepting such amendment on the explanation offered by the party seeking the same, if the amendments are brought at the advance stage of the trial. Meaning thereby, the Court has to see as to whether the amendments are bonafide or brought to delay the disposal of the proceedings and that whether the other party would be seriously prejudiced by such amendment. In any case, the substantial justice to the parties is the real question of concern and the technicalities of law should not be permitted to hamper the Court in administration of justice between the parties. In all eventuality, the Court shall see that the case of justice is subserved. (Emphasis added)

Keeping the above principles in mind, the Court now proceed to see whether the Courts below were justified in rejecting the application for amendment of the written statement.

In the instant case, there is no dispute about the fact that amendment of written statement was sought at the final stage of the suit i.e. at the stage of arguments. The amendment application itself states that at the time of preparation of the matter for arguments, the counsel for the applicants/defendants realised that certain facts were not brought on record. In the written statement, while denying the rights and share of the plaintiffs in the suit property, a plea of adverse possession had been taken.

It is contended by the learned counsel for the petitioners that in paragraph '36' of the written statement, it was stated by the answering defendants that they are in adverse possession of the share of Mahendra Pal Singh and Dhalgopal Singh but the manner in which, they came in adverse possession has not been explained. The proposed amendments in paragraphs '33', '34' and '36' are, therefore, necessary.

Testing this submission, first look has to be given to the proposal amendment and the respective pleading are relevant to be reproduced herein:-

"1) यह कि प्रतिवाद पत्र क-55 के पैरा नं0 33 की द्वितीय लाइन में शब्द "कब्जा नहीं रहा" के बाद व शब्द "और यह" से पेश्तर इबारत "क्योंकि 33-34 वर्ष पूर्व प्रतिवादीगण के पिता श्री होश्यार सिंह का ढाल गोपाल सिंह व महेन्द्र सिंह से बहुत बड़ा झगड़ा सम्पत्ति जो ग्राम कश्मीरी व जिल्लोपुर में थी को लेकर हो गया था लिहाजा होश्यार सिंह ने ढालगोपाल सिंह व महेन्द्र सिंह को विवादित सम्पत्ति में से भगा दिया अर्थात आउस्टकर खदेड़ दिया था और ढाल गोपाल सिंह व महेन्द्र सिंह जिल्लोपुर जाकर रहने लगे थे" तहरीर करने की इजाजत प्रदान की जाये।

2) यह कि प्रतिवाद पत्र क-55 के पैरा नं0 36 की द्वितीय लाइन में शब्द "काबिज रहे" के बाद और शब्द "प्रतिवादीगण" से पेश्तर इबारत "हांलांकि महेन्द्र सिंह व ढाल गोपाल सिंह ने होश्यार सिंह ने होश्यार सिंह व प्रतिवादीगण से बल पूर्वक कब्जा लेने की कोशिश की परन्तु महेन्द्र सिंह व ढ़ाल गोपाल सिंह कब्जा लेने में कामयाब न हो सके और तन्हा होशियार सिंह ही व प्रतितवादीगण ही काबिज रहे और उसके बाद" तहरीर करने की इजाजत दी जाये।

3) यह कि प्रतिवाद पत्र क-55 के पैरा नं0 36 की तृतीय लाइन में शब्द "अधिपति मानते रहे" के बाद इबारत "जैसा वाद संख्या 37/78 में ढाल गोपाल सिंह व महेन्द्र सिंह का पता कस्बा नहटौर न तहरीर होकर ग्राम कश्मीरी व परगना नहटौर तहरीर व अन्य कागजात में की कश्मीरी व जिल्लोपुर तहरीर है" तहरीर करने की इजाजत प्रदान की जाये।

4) यह कि प्रतिवाद पत्र क-55 के पैरा नं0 34 की 7 वीं लाइन जो पृष्ठ 5 पर है में शब्द 'वादीगण' के पूर्व प्रति तहरीर किया जाये अंक 1-6 को कलमजद करके ¼ तहरीर कर दिया जाये।"

Whereas averments in paragraphs '33', '34' and , '36' of the original plaint of the answering defendants are as under:-

"33) यह कि महेन्द्र सिंह व ढाल गोपाल सिंह का लगभग 33-34 वर्ष पूर्व से ही विवादित सम्पत्ति में कोई हक व हिस्सा या कब्जा नहीं रहा और यह दोनों ग्राम कश्मीरी व ग्राम जल्लीपुर में है और उन्होने वाद ग्रस्त हवेली के 2/3 भाग का बैनामा अवैध एवं अनाधिकृत रुप से किया है और इन बैनामें के आधार पर कभी भी वादी गण का कोई कब्जा वाद ग्रस्त हवेली के किसी अंश पर नहीं हुआ है।

34) यह कि वादीगण को यह तथ्य स्वीकार है कि भारत सिंह पुत्र मान सिंह ने वाद ग्रस्त हवेली में अपना कुल हिस्सा यानि ¼ हिस्सा प्रतिवादी गण 1 ता 6 की दादी श्रीमति स्वरुपा देवी को 1933 में विक्रय किया था स्वरुपा दवी ने भारत सिंह से प्राप्त अपने इस हिस्से को वजरिये वसीयत दिनांकित 5-7-1976 को प्रतिवादीगण 1 ता 6 को दे दिया है श्रीमति स्वरुपा देवी का देहान्त सन 1978 में हो गया और उनके देहान्त के बाद वादीगण उक्त 1/6 भाग के मालिक काबिज चले आते हैं।

36) यह कि ढाल गोपाल सिंह व महेन्द्र सिंह वाद ग्रस्त हवेली से गैर काबिज रहे और प्रतिवादीगण को ही तन्हा वाद ग्रस्त हवेली का स्वामी व अधिपति मानते रहे इस प्रकार उनका कोई हक व हिस्सा वाद ग्रस्त हवेली में यदि था भी तो उनके व्यवहार व तन्हा प्रतिवादीगण का वाद ग्रस्त हवेली में कब्जा होने के कारण समाप्त हो गया और प्रतिवादीगण उनके हिस्से पर मालिकाना मुखालिफाना तौर पर अरसा जायद 34 साल से बहैसियत मालिक काबिज चले आ रहे है।"

A careful perusal of the original pleading in the aforesaid paragraphs of the written statement indicates that the plea of adverse possession was based on the conduct and the plea of acquiescence of the original owners namely Mahendra Pal Singh and Dhalgopal Singh, whereas by way of the proposed amendment, the defendant sought to add plea of adverse possession by forcible eviction of the original owners. In any case, the answering defendant had taken a plea that they are in adverse possession of the share of Dhalgopal Singh and Mahendra Pal Singh in the suit property, to their knowledge. The adverse possession can always be claimed as against a true owner(s) to his/their knowledge. The said plea is required to be proved by the party claiming adverse possession by bringing cogent evidence. In the instant case, the defendants were conscious of the fact since the beginning that they were claiming their right to the share of Dhalgopal Singh and Mahendra Pal Singh in the suit property, on the ground of adverse possession and they have led evidence in order to prove the same. The question thus as to how they came in possession of the share of the aforesaid persons, is a matter of evidence stage of which is over. The proposed amendments sought at the advance stage of the trial, therefore, cannot be said to be bonafide. The trial court, therefore, cannot be said to have erred in rejecting the amendment with the reasoning that in case such an amendment is allowed, it may cause delay in disposal of the suit and would cause serious prejudice to the plaintiffs. No due diligence has been shown by the answering defendants in seeking amendment at such an advance stage of the trial. Further, no injury would be caused to the defendants on account of refusal to allow the amendment, inasmuch as, even according to the counsel for the petitioners/answering defendants, the amendments are only explanatory in nature. No prejudice much less injustice is, thus, caused to the petitioners, who are answering defendants in the Original Suit No. 92 of 2002.

Further, from the order-sheet, it is evident that the trial court had proceeded to conclude the arguments of the parties and the judgment has been reserved on 3.12.2018 and the matter is fixed for decision on 18.12.2018.

For the above discussion, this Court does not find any justification to invoke its supervisory jurisdiction under Article 227 of the Constitution of India.

The present petition is, accordingly, dismissed.

 
Order Date :- 17.12.2018
 
Brijesh					(Sunita Agarwal, J.)