Gujarat High Court
Bharat Petroleum Corporation Ltd vs Reliance Industries Ltd on 9 May, 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
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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
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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
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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
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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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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
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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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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."
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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
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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-
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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
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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
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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
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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
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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
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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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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
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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
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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
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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
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(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
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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
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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
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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
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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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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
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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
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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
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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
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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
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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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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
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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
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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.
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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
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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
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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.
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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.
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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
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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
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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,
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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
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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
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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
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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
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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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"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."
(emphasis supplied)
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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
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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
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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
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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
