Ajay Tewari and Others vs Kishen Kunwar and Others

Soumen Sen, J.—This revisional application is directed against order No. 25 dated 23rd June, 2014 in TA No. 1 of 2013 by the Additional District Judge at Port Blair rejecting an application filed by the petitioners for amendment of the plaint under Order 6 Rule 17. The ground for rejection of the said application appears to be that by the amendment of the plaint the plaintiffs/petitioners want to introduce the fact that they are governed by the law of Mitakshara whereas in the original plaint it is stated that the petitioners/plaintiffs are governed by the Hindu law only. The learned Judge felt that allowing such application would result in changing the nature and character of the suit. It was held that if the appeal is allowed at the appellate stage the same would result in change of the nature and character of the suit. The Appellate Court accordingly declined to allow the said application for amendment of the plaint.

Ms. Anjili Nag, the learned counsel appearing on behalf of the petitioners submits that although in the proposed amendment the plaintiffs have prayed for addition of paragraphs 25(a) to 25(e) in paragraph 25 of the plaint but she is not insisting for addition of Paragraphs 25(a) to 25(d) since the Trial Court has already adjudicated the issues involved in the said proposed amendment and she would confine her prayer for addition of Paragraph 25(e) only by way of amendment.

Mr. Haradhan Banerjee, the learned counsel appearing on behalf of the opposite parties submits that if the amendment is allowed at the appellate stage the same would change the nature and character of the suit and would give a fresh cause of action. Mr. Banerjee has referred to Paragraph 14 of the plaint and submits that the plaintiffs in the said Paragraph have categorically stated that as per the law of inheritance the plaintiffs and the defendants are the joint owners of the property left behind by Late Bishnath Tiwari and each of the parties to the instant suit has an undivided respective share over the suit property. Mr. Banerjee has referred to Paragraph 11 and Paragraph 14 of the plaint and submits that from the said paragraphs it would be clear that the plaintiffs have acquired their right to the property by way of inheritance and/or intestate succession. It is submitted that in the event the plaintiffs are allowed to amend the plaint at this stage by adding Paragraph 25(e) to the original plaint the same would completely change the nature and character of the suit. It is submitted that if the proposed amendment is allowed it would raise fresh issues to be tried by evidence and result in fresh trial. The appellate court would not allow an amendment which would change the nature and character of the suit and more so when such proposed amendment would result in fresh trial. In support of the aforesaid contention Mr. Banerjee has relied upon the following decisions:--

"(i) Aktar Hossain Vs. Susama Rani Sahoo, (2001) 2 ILR (Cal) 101 ;

(ii) Gulshan Bibi Vs. Hasmat Ali and Others, (2005) 2 CHN 667 : (2005) 1 ILR (Cal) 208 ;

(iii) Arun Chandra Sinha Vs. The Hon''ble Lt. Satyendra Chandra Ghose Moulick, 164 Ind. Cas. 90 ;

(iv) Unreported decision in SA 112 of 2006 (Shri Phanindra Nath Sardar and Ors. V. Budhiswar Poddar) decided on August 30, 2013."

I have carefully considered the original plaint, the proposed amendment and the examination-in-chief of the plaintiffs filed under Order 18 Rule 4 of the Code of Civil Procedure, 1908 as amended. In order to appreciate the argument of the respective parties it is necessary to refer to some of the paragraphs of the original plaint and the Affidavit-of-Evidence filed by the plaintiffs. The relevant paragraphs of the original plaint are:--

"3. That the plaintiff states that the grant father of the plaintiff late Bishnath Tewari was the sole and absolute owner of the land bearing survey Nos. 40/2 and 39/2 measuring an area of 4 kanals and 2 marlas consisting of a double storied wooden building situated at Goalghar, Port Blair Tehsil, Andaman district within the jurisdiction of this Hon''ble Court.

That the plaintiff states that under the provisions of the Hindu Law the plaintiff and the defendants herein became entitled by way of inheritance and/or intestate succession to the property with the wooden building standing thereon.

that the plaintiff states that as per the law of inheritance the plaintiff and the defendants are the joint owners of the property left behind by late Bishnath Tiwari and each of the parties to the instant suit has an undivided, respective share over the suit property. Thus the plaintiff has an undivided half portion of 1/5th share and interest in the said property and nobody including the defendant Nos. 1 to 4 can raise any objection or question regarding such half portion of the undivided 1/5th share of the plaintiff in respect of the suit property."

In the Affidavit-of-Evidence in Paragraphs 12 and 15 the plaintiffs have stated:--

"12. As per the Hindu law myself, plaintiff No. 2 and other defendants are all entitled to the suit property along with the wooden building standing thereon by way of inheritance/or intestate succession.

As per law of inheritance, myself and the defendants are the joint owners of the suit property left behind by my grandfather and each of them has undivided respective share over the suit property."

The principle challenge in the plaint appears to be of a deed of gift executed by the grandfather of the plaintiffs namely late Bishnath Tiwari. The plaintiffs alleged that Bishnath Tiwari during his lifetime did not execute any deed of gift and accordingly the claim by the defendant No. 4 on the basis of the said deed of gift is unsustainable. If the plaintiffs have proceeded on the principle of succession by inheritance which is a concept prevailing in Diabhanga school of Hindu Law then the father of the plaintiffs first would succeed to the said property on the death of their father and thereafter on the death of their father the plaintiffs by inheritance. However, if the Mitakshara Law is applied then both the father of the plaintiffs and the plaintiffs would have acquired an interest in the suit property by birth. It is alleged that the plaintiffs were born prior to the date of execution of the alleged deed of gift. If this fact is established by the plaintiffs then it would certainly have a bearing on the trial of the suit. This is the only factual difference that would result in the event the plaintiffs are allowed to amend the plaint.

Ms. Nag would argue that the law is well settled that the amendments in the pleadings are to be liberally permitted by the Court. However, the Court has to be satisfied that such amendment is necessary for determination of the real question in controversy. Ms. Nag would submit that the said amendment would not change the nature and character of the suit since the plaintiffs have already stated in Paragraph 11 of the plaint that the provisions of Hindu Law would apply in matters relating to succession. Ms. Nag submits that if the parties are governed by the Mitakshara law any statement in the plaint stating that the plaintiffs became entitled to succession by way of inheritance cannot take away the right of the plaintiffs as coparceners since by birth a child in Mitakshara acquires a right in the coparcenary property and the interest in the property vests in him.

The power of appellate court to allow amendment of the plaint has been considered in Nanduri Yogananda Lakshminarasimhachari and Others Vs. Sri Agastheswaraswamivaru, AIR 1960 SC 622 : (1960) 2 SCR 768 and also subsequently in Pandit Ishwardas Vs. State of Madhya Pradesh and Others, AIR 1979 SC 551 : (1979) 4 SCC 163 : (1979) 11 UJ 231 which reads:--

"5. There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate court should observe the well-known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate court permitting an amendment at the appellate stage merely because the necessary material is not already before the court."

The aforesaid observation clearly indicates that one of the circumstances which would be taken into consideration before an amendment is granted is the delay in making an application seeking such amendment and if made at the appellate stage the reason why it was not sought in the trial court.

In Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, (2009) 13 JT 366 : (2009) 10 SCC 84 : (2009) 15 SCR 103 : (2009) 10 UJ 4850 the Hon''ble Supreme Court reiterated the wide discretion the courts have in the matter of amendment of pleadings. On critical examination of both the English and Indian cases the Hon''ble Supreme Court in Paragraph 63 observed:--

"63. On critically analyzing both the English and Indian cases some basis principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

In Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, AIR 2006 SC 1647 : (2006) 3 JT 607 : (2006) 3 SCALE 312 : (2006) 4 SCC 385 : (2006) AIRSCW 1538 : (2006) 3 Supreme 507 the Hon''ble Supreme Court held that court should allow amendment that may be necessary for determining the real question in controversy between the parties provided it did not cause injustice or prejudice to the other side. It was observed that the real controversy test is a basis or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties.

In the instant case if the amendment as proposed is allowed then the Court would be required to consider as to whether the grandfather of the plaintiffs could at all have executed a deed of gift having regard to the fact that prior to the execution of the deed of gift the plaintiffs were born and if the rule of succession is governed by Mitakshara law then the plaintiffs have acquired an interest in the property by birth of which he could not have been divested without consent. However, if the evidence on record shows that contrary to what has been stated in the plaint the parties have adduced evidence before the trial court which would go to show that the parties have accepted that they are governed by Mitakshara law and not by Diabhanga law then there could not be any impediment in allowing amendment and it would be too technical in such a situation to deny the amendment of the plaint at the appellate stage. The amendment would be in that case necessary only to put the record straight. In my view, this aspect of the matter was not considered by the appellate court while considering the said application for rejection of the plaint. There cannot be any doubt that no amendment shall be allowed which would mean a re-trial of the whole issue on a new footing at a late stage and further if it changes the nature and character of the suit as framed since it would involve filing of fresh written statement and a fresh trial. However, whether such amendment should be allowed or not in the instant case has to be considered in the light of the discussion made in this order since in such a situation it may not call for a re-trial at all and could be decided on the basis of the evidence already on record. Accordingly, I set aside the order of the appellate court and direct the appellate court to hear the said amendment application along with the appeal and in the event on consideration of the evidence on record it appears to the appellate court that the parties have proceeded as if they were governed by Mitakshara law the appellate court may allow the amendment. It is made clear that the appellate court shall only consider Paragraph 25(e) of the Schedule of amendment. The revisional application is allowed. The impugned order dated 11th July, 2014 is set aside.