Allahabad High Court
Ram Sagar S/O Ram Murti vs Additional Distt. And Session Judge ... on 17 April, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:21660
Court No. - 6
Case :- MATTERS UNDER ARTICLE 227 No. - 1004033 of 2011
Petitioner :- Ram Sagar S/O Ram Murti
Respondent :- Additional Distt. And Session Judge Court No. 9 And Another
Counsel for Petitioner :- Ajai K. Singh,Virendra Mishra
Counsel for Respondent :- Manish Kumar,Avinash Bhatt,Avnish Bhatt,Jai Prakash Yadav
Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the petitioner.
2. Present petition has been filed challenging an order dated 13.04.2011 passed by the appellate Court whereby the amendment application filed at the appellate stage by the defendant to the suit seeking amendment to the written statement was allowed on a cost of Rs.1,000/-.
3. Contention of learned counsel for the petitioner is that the suit for permanent injunction was filed some time in the year 1985 and the said suit was decreed on 06.03.2010 and thereafter, an appeal was preferred in the year 2010. During the pendency of the appeal, an amendment application was filed seeking to amend the written statement which ultimately was allowed on 13.04.2011.
4. A perusal of the order reveals that although the defendant had taken a defence based upon a will executed in his favour, the specific pleadings were missing in the written statement, as such, case of the defendant based upon execution of a will in his favour was not considered by the trial Court. The appellate Court felt that although the amendment application has been filed at a belated stage, however, the pleadings were bonafide missing in the earlier written statement, as such, the amendment application deserves to be allowed.
5. Challenging the said order, learned counsel for the petitioner argues that during the pendency of the said, the defendant had filed a written statement and had subsequently amended the written statement on two occasions and did not take the specific pleadings and for the first time after a substantial delay, the amendment application was filed that too at the appellate stage which deserved to be rejected and has been wrongly allowed.
6. Reliance is placed upon a judgment of this Court in the case of Sardar Joginder Singh and Ors. v. Nirmal Robinson Clifford and Anr.; 2019 (37) LCD 1999, particularly Paras 14, 15 & 16, which read as under:
"(14) On perusal of the aforesaid judgments, it is well established that the Hon'ble Supreme Court by considering the word "due diligence" has held that the Court while allowing the amendment, should have considered that why the amendment is required to be made and there should be fullfledged consideration in allowing the amendment application in regard to word "due diligence".
(15) On perusal of the impugned order, it is evident that the proviso of Order 6 Rule 17 CPC has not been taken in to consideration. The only recital has been made that in the light of the judgment of 2018 Allahabad ACJ 2205 in the case of Smt. Pushplata Saxena there shall be no change in the plaint and has accepted the amendment application and allowed the same.
(16) In the opinion of this Court, the Additional District Judge while passing the impugned order has ignored the proviso of Order 6 Rule 17 CPC, therefore, the same is not sustainable in law."
7. Further reliance is placed upon a judgment of the Supreme Court in the case of M. Revanna v. Anjanamma (Dead) by Legal Representative and Ors.; (2019) 4 SCC 332, particularly Paras 7, 8 & 9, which read as under:
"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.
8. As mentioned supra, the suit was filed in the year 1993 and at that point of time, Defendants 4 to 6 were not made parties to the suit. Plaintiffs 1 to 5 and Defendants 1 to 3 were the only parties. They had filed a joint memorandum for the dismissal of the suit on 22-4-1993, which was within one or two months of the filing of the suit. The compromise petition came to be rightly dismissed by the High Court in RFA No.297 of 1994. In the compromise petition, curiously, it was noted that the joint family properties were divided by metes and bounds in the year 1972. If the partition had really taken place in the year 1972 and was acted upon as per the Panchayat Parikath, then Plaintiffs 1 to 5 would not have filed a suit for partition and separate possession in the year 1993. Be that as it may, it is clear from records that the suit was being prolonged on one pretext or the other by Plaintiffs 1 to 5 and ultimately, the application for amendment of the plaint came to be filed on 1-9-2008. By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing before the trial court. If there indeed was a partition of the joint family properties earlier, nothing prevented Plaintiffs 1 to 5 from making the necessary application for the amendment of the plaint earlier. So also, nothing prevented them from making the necessary averment in the plaint itself, inasmuch as the suit was filed in the year 1993. Even according to Plaintiffs 1 to 5, they came to know about the compromise in the year 1993 itself. Thus, there is no explanation by them as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. Though, even when Plaintiffs 1 to 5 came to know about the partition deed dated 18-5-1972 (Panchayat Parikath) on 22-4-1993, they kept quiet without filing an application for amendment of the plaint within a reasonable time. On the contrary, they proceeded to cross-examine PW 1 thoroughly and took more than five years' time to get the examination of PW 2 completed, and only thereafter filed an application seeking amendment of the plaint on 1-9-2008, that too when the suit was posted for final arguments. As mentioned supra, the suit itself is for partition and separate possession. Now, by virtue of the application for amendment of pleadings, Plaintiffs 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff 6 Respondent 1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all.
9. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff 6 Respondent 1 herein."
8. Further reliance is placed upon another judgment of the Supreme Court in the case of Vidyabai and Ors. v. Padmalatha and Anr.; (2009) 2 SCC 409, particularly Paras 10, 11 & 19, which read as under:
"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:
"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 couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding".
19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
9. Considering the submissions made at the bar, the facts as emerge are that the will was presented at the very first instance by the defendant, however, on account of inadequacy of the specific pleadings, his defence was not considered. The appellate court in its discretion felt that the inadequacy of the specific defence cannot be a malafide instance at the instance of the defendant. Although, it is well settled in the light of the judgments as cited above, that the amendment should be filed at the first instance, however, the specific pleadings would not have any adverse effect inasmuch as the will was already filed at the very first instance and the appellate Court, if felt that the issue arose, could have remanded the matter for decision on the issue with regard to the claim of the defendant based upon the said will.
10. On totality of the said circumstances, I do not see any reason to interfere in exercise of powers under Art. 226/227 of Constitution of India.
11. Present petition is accordingly dismissed.
Order Date :- 17.4.2025
nishant
