Govinda Shetty vs Durgappa

A.S. Bopanna, J.—The petitioners herein are before this Court assailing the order dated 31.07.2013 passed in O.S. No. 6/1999. By the said order, the Court below has dismissed the application filed under Order V Rule 17 of CPC seeking amendment to the plaint.

The petitioners herein are the plaintiffs in O.S. No. 6/1999. At the first instance, the suit had been disposed of, as against which an appeal was filed before this Court in RFA No. 731/2003 which was clubbed along with other appeals arising out of the companion suits. This Court by its judgment dated 04.02.2013 had set-aside the judgment and decree dated 19.04.2003 passed in O.S. No. 6/1999 as also passed in companion suits and had remitted the matter to the trial Court for fresh disposal by clubbing all the suits and recording common evidence by framing proper issues. Subsequent to the remand, the matter had been posted for evidence of the parties. At that stage, the plaintiffs filed the instant application under Order VI Rule 17 R/w. Section 151 of CPC seeking leave to amend the plaint. The application was opposed by the defendants. The trial Court after taking note of the rival contentions has dismissed the application. It is against the said order, the plaintiffs are before this Court.

Learned counsel for the petitioners while assailing the said order would contend that the Court below was not justified in its conclusion that while remanding, the High Court had not permitted the plaintiffs to amend their pleadings. It is his contention that the remand was open ended and therefore when the trial Court was to reconsider the matter, all issues were required to be considered and appropriate decision was to be taken. It is to aid such decision, the pleading was required to be amended and appropriate issues were to be framed and thereafter parties were to go for trial. Hence, it is contended that the amendment is justified and the same is to be permitted.

Learned counsel for the private respondents apart from seeking to sustain the order passed by the Court below would also contend that as rightly noticed by the Court below, this Court while remitting the suits for reconsideration has not permitted amendment of pleading and therefore, the application in any event was liable to be rejected. Further, the learned counsel submits that the application was filed only at the stage when the matter was set down for evidence and therefore there was delay in availing opportunity, even if the amendment was permissible and as such, the plaintiffs had not shown diligence in filing the said application. In that view, the decisions noticed by the trial Court that amendment is to be rejected when diligence is not shown is proper in the instant case and therefore is sustainable and the same does not call for interference.

In the light of the rival contentions, I have perused the order impugned herein. For better appreciation of the same, it would also be necessary to notice the judgment passed by this Court in RFA No. 731/2003 and connected appeals disposed of on 04.02.2013. It is no doubt true that this Court has not specifically stated that on remand, the plaintiffs would be entitled to amend the plaint. However, what cannot be lost sight is that while arriving at a conclusion that the judgment and decree is to be set aside and the matter is to be remitted for reconsideration, one of the aspects which has been noticed by this Court is also that the issue which has not been pleaded cannot be raised in evidence. This is sufficient indication to the fact that on remand the parties were to put forth appropriate pleadings in the suit and based on which the issues were to be framed and ultimately were to be considered by the Court below in accordance with law. If this aspect is kept in view, certainly on remand, the plaintiffs were entitled to file an application seeking amendment to the pleadings and in such circumstance, no doubt it is open for the trial Court to apply the legal principles enunciated for considering an application for amendment and pass appropriate orders. Hence, the reason that this Court has not directed that the amendment be permitted is of no consequence.

The further aspect no doubt is with regard to the manner in which the said application has been made. Though the trial Court has taken note of the judgment of the Hon''ble Supreme Court to come to a conclusion that the amendment would be permissible after the trial has commenced only if diligence is shown, the contention of the learned counsel for the respondents in that regard no doubt is with substance. Despite the same, having noticed the fact that this Court had remanded the matter to enable the parties to put forth all contentions and thereafter a decision be taken, at this juncture, if the amendment which has been sought is not permitted only on that ground, the decision ultimately by the trial Court would again suffer from the same consequence of being challenged in appeal and the matter being considered in that light with regard to the pleadings being necessary.

Therefore, the interest of the parties would be protected if the amendment is permitted and the multiplicity of the proceedings is avoided. In such circumstance, I am of the opinion that the Court below was not justified in rejecting the application by the order impugned dated 31.07.2013.

Hence, the order dated 31.07.2013 is set aside. Consequent thereto, I.A. No. 12 filed in O.S. No. 6/1999 is allowed. The Court below is directed to permit the plaintiffs to amend the plaint and thereafter frame appropriate issues and proceed further in the matter in accordance with law.

In terms of the above, the petition stands disposed of.