Smt. Sushma Netam vs The District Manager
2022 Latest Caselaw 5977 Chatt

                                               1
                                                                 W.P.(227) No. 584 of 2022


                                                                                  NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                               Writ Petition (227) No. 584 of 2022

   1. Smt. Sushma Netam, aged about 52 years, wife of Dr. Ramnarendra Netam,
   2. Dr. Ramnarendra Netam, aged about 58 years, S/o. Shri Chatursing Netam,
      Occupation - Retd. Government - Servant, Ex. Deputy Director, Directorate,
      Medical Services, Indrawati Bhawan, Raipur (C.G.)

      Both are peresently residing at, G-11, Agrasen Nagar, Sundar Nagar,
      Opposite - D.D. Nagar, Ring Road No.01, Raipur (C.G.)

                                                              ---- Petitioners/Plaintiffs
                                         Versus
   1. The District Manager, Chhattisgarh Rajya Beej Evam Krishi Vikas Nigam,
      District Rajanandgaon (C.G.)

   2. The Tahsildar, District Rajnandgaon (C.G.)

   3. The Sub Divisional Officer (Rev.), District Rajnandgaon (C.G.)

   4. The State of Chhattisgarh, through the District Collector, Rajnandgaon
      (C.G.)

                                                      ---- Respondents/Defendants

For Petitioners/Plaintiffs : Mr. Kshitij Sharma, Advocate For Respondents No. 1 : Mr. Prakash Tiwari, Advocate For Respondents No. 2 to 4 : Mr. Sudhir Sahu, Panel Lawyer

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

23.09.2022

1. Heard on admission.

2. With the consent of learned counsel for the parties, this petition is heard

finally at motion stage itself.

3. This petition is filed against the order dated 03.08.2022 passed by the

learned District Judge, Rajnandgaon, District Rajnandgaon (C.G.) in Civil

Suit No. 9A/2017, whereby an application under Order 6 Rule 17 of C.P.C.

moved by the petitioners/plaintiffs has been dismissed.

4. The petitioners/plaintiffs instituted a civil suit for declaration and permanent

W.P.(227) No. 584 of 2022

injunction with respect to right of easement of necessity accruing over the

property. The plaintiffs have pleaded that plaintiff No. 1 is the owner of land

bearing Survey No. 125/2, admeasuring 0.30 acre, whereas plaintiff No. 2 is

owner of land bearing Survey No. 125/1, admeasuring 0.14 acre situated at

Patwari Circle No. 24, Kaurinbhatha, District Rajnandgaon. They further

pleaded that the construction is being raised by the defendants and they

have no access. Defendants No. 2 to 4 filed their written statements and

denied the claim of the plaintiffs. The trial Court framed issues for

determination. The plaintiffs filed their affidavit under Order18 Rule 4 of

C.P.C. and they were cross-examined by the defendants. Defendant No. 1

was also cross-examined. The case was fixed for evidence of the

defendants No. 2 to 4, at the same time plaintiffs moved an application

under Order 6 Rule 17 of C.P.C. with object to elaborate their previous

pleadings. The amendment sought by the plaintiffs in the relevant clauses is

reproduced herein below:-

3& ;g fd] Okkni= fd dafMdk nks ds var esa fuEu dFku tksM+k tkos "oknhx.k }kjk mDr [kljk uacj [email protected] dh Hkwfe o"kZ 1988 ,oa [kljk uacj [email protected] dh Hkwfe o"kZ 2005 esa dz; dj LokfeRo ,oa vkf/kiR; izkIr fd;s x;k gS mDr fodz; foys[k ds vk/kkj ij jktLo vfHkys[kksa esa oknhx.k dk uke nTkZ fd;k x;k gS dz; fnukad dks IykWV ij tkus dk igqap ekxZ cht fuxe dks vkcafVr Hkwfe ls jgk gS rFkk vU; xzke oklh Hkh blh ekxZ dk mi;ksx vkus tkus ds fy;s djrs jgs gS IYkkWV ds igqWap ekxZ ij fo+|qr foHkkx }kjk gkbZVsa'ku ok;j yxkus dk iz;kl fd;k tk jgk Fkk ftldk oknh }kjk fd;s tkus ij fo|qr foHkkx }kjk gkbZVsa'ku ok;j dks gVk;k x;k oknhx.k ds i{k esa fu"ikfnr fodz; foys[k esa Hkh igqWap ekxZ dks n'kkZ;k x;k gS rFkk uxj fuxe }kjk Hkh leqfpr tkap mijkar fuekZ.k gsrq vuqKk oknhx.k dks iznku fd;k x;k gS oknhx.k }kjk izLrqr f'kdk;r ds vk/kkj ij lacaf/kr rglhynkj }kjk iVokjh ls ekSds fd fLFkfr ds laca/k esa fjiksVZ Hkh ryc fd;k x;k gS ftlesa Hkh oknh ds ikl fookfnr igqWp ekxZ ds vfrfjDr vU; dksbZ igqWp ekxZ IykWV ij igqapus

W.P.(227) No. 584 of 2022

gsrq ugh gksuk crk;k x;k gS ekSds dh fLFkfr dks vuqpwph v esa n'kkZ;k x;k gS vuqlwph v dks okni= dk vax ekuk tkos "

4& ;g fd] okn i= fd dafMdk 3 ds vafre iSjk esa vfHkfyf[kr gyck lekt o oknhx.k dsa mijkar "o"kZ 1988 ls" 'kCn tksM+k tkos 5& ;g fd] okni= fd dafMdk 7 ds f}rh; iafDr esa vfHkfyf[kr izfroknhx.k }kjk ds i'pkr "o"kZ 2008 es oknhx.k ds igqWr ekxZ esa fLFkr jkLrk dks can dj fnokj [kM+k djus dk iz;kl fd;k x;k ftldk oknh }kjk fojk/k fd;k tkdj fofHkUu mPpkf/kdkfj;ksa dks f'kdk;r fd;k tkrk jgk rFkk jktLo U;k;ky; esa Hkh f'kdk;r vkfn fd;k tkrk jgk o"kZ 2010&11 esa oknxzLr Hkwfe feV~Vh ijh{k.k dk;kZy; dks vkcafVr fd;k x;k ftLkds mijkar o"kZ 2013 esa ckmWMªhokWy esa okn ds igqWp ekxZ gsrq oknhx.k }kjk 3 xsV yxk;k x;k oknh ds IykV esa oknh }kjk cksj yxok;k x;k gS rFkk uxj ikfyd fuxe ls fuekZ.k dk;Z dh oknh dk vuqKk feyus ds ckn foHkkx }kjk dysDVj dks f'kdk;r dj oknh ds igqWp ekxZ esa fnoky cuk fn;k x;k Nrrhlx<+ jkT; vuqlwfpr tkfr ,oa tutkfr }kjk oknh dh vksj ls izsf"kr f'kdk;r ds vk/kkj ij vkns'k ikfjr dj foHkkx dks oknhx.k dh Hkwfe ij igqWp ekxZ fn, tkus dk funsZ"k fn;k x;k blds mijkar Hkh izfroknh x.k }kjk uxj ikfyd fuxe }kjk iznRr vuqKk dks vuns[kk djrs gq, o"kZ 2017 esa oknhx.k ds igqWp ekxZ ij ckmaMªhoky fufeZr dj fn;k x;k ftlds oknhx.k }kjk fofHkUu f'kdk;rksa ds ek/;e ls fojks/k fd;k tkrk jgk ftlds mijkar Hkh"

6& ;g fd] okni= fd dafMdk 11 esa vfHkfyf[kr LoRokf/kdkj dk mYya?ku fd;k x;k gS ds mijkar "ftldk oknhx.k }kjk fujarj f'kdk;r fd;k tkrk jgk ijarq mDr f'kdk;r o dk;Zokgh mijkar Hkh mRiUu vojks/k dks ugh gVk;k x;k"

7& ;g fd] vuqrks"k dh dafMdk c ds var esa fuEu dFku tksM+k tkos"

6& ;g fd] okn i= vuqlwph v es vfHkfyf[kr 18 ehVj pkSM+k igqWp ekxZ ds mijkar fuEu dFku tksM+k tkos "rFkk vuqlwph v esa vfHkfyf[kr 9 ehVj ,oa nf'kZr [email protected] ds e/; LFky ij fufeZr jkLrk dks can fd;k x;k gS vr% izfroknhx.k }kjk oknhx.k ds igWqp ekxZ essa fufeZr fnoky dks rksM+dj gVkus ckcr vkKkid

W.P.(227) No. 584 of 2022

fu"ks/kkKk tkjh fd;k tkos"A 7& ;g fd] izLrkfor la'kks/ku ls okn ds ewy Lo:i esa dksbZ ifjoRkZu ugh gksosxk rFkk okn dk leqfp U;kf;d fujkdj.k laHko gks ldsxk

5. Respondent No.1/defendant filed separate reply to application for

amendment, whereas joint reply was filed by respondents No. 2 to 4. Sum

and substance of the reply filed by the respondents is that the application

has been moved in order to delay the trial, if amendment is allowed,

defendants/respondents will have to move application for consequential

amendment, it will change the nature of suit and the proposed amendment

does not fall within the purview of pleadings.

6. The learned trial Court vide order dated 03.08.2022 rejected the application

on the ground that on 28.04.2017 civil suit was filed, trial has already

commenced, the evidence of plaintiffs and defendant No.1 has been

recorded, the plaintiffs were well aware about all the facts pleaded in the

amendment application from the inception of the suit, the plaintiffs are not

illiterate persons and application has been moved after delay of five years

for which no explanation has been given.

7. Learned counsel for the petitioners submits that the learned trial Court failed

to appreciate the true intent for amendment sought as by way of amendment

the plaintiffs are only elaborating/explaining the pre-existing pleadings. They

want to elaborate the nature of hindrance and consequential action, the

proposed amendment will not change the nature of suit and there would be

no requirement to reframe the issues. Also there is no need to re-examine

the witnesses as sum and substance of the amendment has already been

deposed in their evidence. Learned counsel for the petitioners placed

reliance upon the judgment of Supreme Court in the matter of Life

Insurance Corporation of India vs. Sanjeev Builders Private Limited

and Ors., Decided on 01.09.2022 in Civil Appeal No. 5909 of 2022

W.P.(227) No. 584 of 2022

(Arising out of SLP (C) No. 22443 of 2019).

8. On the other hand, learned counsel for the respondents submit that the

application for amendment has been moved at the fag end of the

proceedings, the plaintiffs were well aware about all the facts from date of

filing of civil suit, but the application for amendment has been moved after

delay of five years. The evidence of plaintiffs as well as defendant No.1 has

been recorded and the proposed amendment if allowed would bring the

parties at the initial stage of the suit. The amendment would change the

nature of suit and same is vexatious and has been filed with intent to delay

the trial. Mr. Prakash Tiwari, learned counsel for respondent No.1, placed

reliance upon the judgments of the Supreme Court in the case of Vijay

Hathising Shah and Another vs. Gitaben Parshottamdas Mukhi and

Others, (2019) 5 SCC 360; Pandit Malhari Mahale vs. Monika Pandit

Mahale and Others, (2020) 11 SCC 549 and Asian Hotels (North) Limited

vs. Alok Kumar Lodha and Others, (2022) 8 SCC 145.

9. I have heard learned counsel for the parties and perused the material

available on record.

10. To decide the issues involved in this case, it would be advantageous to go

through the Order 6 Rule 17 of C.P.C., 1908 which is reproduced here in

below:-

"Order 6 deals with 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:

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."

W.P.(227) No. 584 of 2022

11. Hon'ble the Supreme Court in case of Vijay Hathising Shah (supra) in para-9

has held as under:-

9. In our view, the trial court was right in rejecting the application. This we say for more than one reason. First, it was wholly belated; second, Respondent 1-plaintiff filed the application for amendment of the plaint when the trial in the suit was almost over and the case was fixed for final arguments; and third, the suit could still be decided even without there being any necessity to seek any amendment in the plaint. In our view, amendment in the plaint was not really required for determination of the issues in the suit.

12. In case of Pandit Malhari Mahale (supra) in paras- 7 & 8 it was held as

under:-

7. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai v. Padmalatha, (2009) 2 SCC 409, this Court observed in para 19 as under:-

"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."

8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of

W.P.(227) No. 584 of 2022

aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed.

13. Recently the Hon'ble Supreme Court in case of Life Insurance Corporation

of India (supra) in para-70 has summed up the final conclusions while

dealing with the scope of Order 6 Rule 17 of C.P.C.. Para-70 is reproduced

herein :-

70. Our final conclusion may be summed up thus:

(i) Order II Rule 2 Code of Civil Procedure 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 for beyond its purview. The plea of amendment being barred Under Order II Rule 2 Code of Civil Procedure is, thus, misconceived and hence negatived.

(ii) 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 later part of Order VI Rule 17 of the Code of Civil Procedure.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) 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 does 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 valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be

W.P.(227) No. 584 of 2022

allowed unless

(i) 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,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi)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.

(vii) 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.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) 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.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up 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.

(xi) 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

W.P.(227) No. 584 of 2022

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 and Ors., MANU/DE/2236/2022)

14. Now considering the facts of the present case in the light of the judgments

passed by the Hon'ble Supreme Court and provisions of Order 6 Rule 17 of

C.P.C., it is crystal clear that amendment cannot be allowed after

commencement of trial. Though under proviso, power to allow an

amendment is given to the court concerned at any stage of the suit in the

interest of justice, notwithstanding the law of limitation, but exercise of such

power is governed by judicious consideration and wider discretion, later

ought to be at the care and circumspection on the part of the Court. Every

application for amendment has to be tested on the facts and circumstances

of the case, as the proposed amendment of the pleadings amount to earlier

different or additional approach to the same facts. The application for

amendment should be allowed if fresh suit on the amended claim would be

barred by any law. In case of Vineet Kumar vs. Mangal Sain Wadhera,

(1984) 3 SCC 352, the Hon'ble Supreme Court has held that if a prayer for

amendment merely adds to the facts already on record, the amendment

would be allowed even after the statutory period of limitation.

15. In the instant case, the application for amendment has been moved to

elaborate the pleadings which are already on record. The Hon'ble Supreme

Court in case of Vijay Hathising Shah (supra) while affirming the order of trial

Court whereby the application for amendment was rejected held that the

W.P.(227) No. 584 of 2022

rejection of application for amendment was right on the grounds that it was

wholly belated, respondent 1 - plaintiff filed the application for amendment of

the plaint when the trial in the suit was almost over and the case was fixed

for final arguments, and the suit could still be decided even without there

being any necessity to seek any amendment in the plaint. In case of Pandit

Malhari Mahale (supra), it was observed by the Hon'ble Supreme Court that

primal duty of the court to decide as to whether such an amendment is

necessary to decide the real dispute between the parties and in spite of due

diligence, the party could not introduce amendment before commencement

of the trial. In case of Asian Hotels (North) Limited (supra), the Hon'ble

Supreme Court has held that if amendment changes the nature of suit, in

that case, the Court would not be justified in allowing the amendment, it

would also result in misjoinder of causes of action. In case of Life Insurance

Corporation of India (supra), the Hon'ble Supreme Court has given

conclusions by holding that the application for amendment can be allowed in

order to determine real question in controversy and to avoid multiplicity of

proceedings, if it does no injustice or prejudice to other side by the

amendment, the party seeking amendment does not seek to withdraw any

clear admission and the amendment does not raise a time barred claim. It is

further held, if the amendment changes the nature of the suit, the prayer for

amendment is malafide.

16. In the instant case, the amendment proposed by the plaintiffs elaborates the

pleadings. Further, (i) the application for amendment merely adds to the

facts already on record; (ii) it does not change the nature of the suit; (iii) the

plaintiffs have stated that there is no requirement to adduce evidence to

prove the pleadings of amendment; (iv) the amendment does not cause

injustice or prejudice to the other side; (v) the amendment does not seek to

withdraw clear admission made by the parties; (vi) the amendment does not

raise a time barred claim; (vii) the amendment is necessary to bring out the

W.P.(227) No. 584 of 2022

real dispute between the parties; (viii) all the defendants witnesses have not

been examined; and (ix) the defendants may be compensated by costs.

17. Consequently, the order dated 03.08.2022 passed by the District Judge,

Rajnandgaon, District Rajnandgaon (C.G.) in Civil Suit No. 9-A/2017 is set

aside and application moved by the petitioners/plaintiffs under Order 6 Rule

17 of CPC is allowed subject to payment of cost of Rs.5,000/- to the

defendants.

18. With the aforesaid observations, this petition is allowed at motion stage. No

order as to cost(s).

Sd/-

(Rakesh Mohan Pandey) Judge

vatti