Jayram S/O Kacharmal Mali vs Rajjaq And Others

By this misc. petition under Article 227 of the Constitution, the plaintiff has challenged the order of the trial Court dated 03/07/2018 rejecting the petitioner's application under Order 6 Rule 17 of the CPC for amendment of the plaint.

Learned counsel appearing for the petitioner submits that the amendment was necessitated on account of the subsequent development and that the amendment is necessary for avoiding multiplicity of the proceedings and no prejudice would be caused to the respondents because the respondents/defendants will have an opportunity to amend the written statement and the evidence has not yet commenced in the case.

Learned counsel for the respondent No.5 has submitted that respondent No.5 is only a formal party in the case.

Having heard the learned counsel for the parties, on the perusal of the record, it is noticed that by way of amendment application, the petitioner wants to seek the relief of declaration in respect of the suit property. The trial has not yet commenced and it has been pointed out by counsel for the petitioner that if the amendment is declined, then the same would lead to multiplicity of proceedings. Though the notice of this petition was served upon the defendants (respondents No.1 to 4) but they have not chosen to appear before this Court and oppose the present misc. petition.

The Supreme Court in the matter of M/s. Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and others reported in AIR 2009 SC (Supp.) 2897 has laid down the following broad test which is to be applied while considering the application for amendment:-

"67. On critically analyzing both the English and Indian cases, some basic 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."

In the present case, the aforesaid factors are in favour of the petitioner.

The Division Bench of this Court also in the matter of Jaspreet Kaur and another Vs. Ramkrishna and others reported in 2010 (3) MPLJ 387 has taken note of the earlier judgement while allowing the application for amendment as under:-

It may be seen that the proviso to Rule 17, Civil Procedure Code being inapplicable, the litmus paper test for following amendment is whether the amendment is necessary for complete and correct adjudication of the controversy involved between the parties. We may profitably refer to the Supreme Court decision in the case if Rajesh Kumar Aggarwal vs. K.K. Modi and others 2006 (3) MPLJ (SC) 215 = AIR 2006 SC 1647 for this purpose, wherein it is held:-

"16. 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.

Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit."

In any case, allowing of amendment will not cause prejudice or loss to the defendants. Petitioners would definitely have opportunity to meet out the same on merits. We may refer here to the decision of the Supreme Court of India in the case of Puran Ram vs. Bhaguram and another, 2008 (3) MPLJ (SC) 273 = (2008) 4 SCC 102, wherein it has been observed in para 18 as under:-

"18. We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which, in the discretion of the trial court, was allowed. We are of the view that the High Court ought not to have interfered with the order of the trial court when the order of the trial court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial court was either without jurisdiction or perverse or arbitrary."

We may also successfully refer here the Apex Court decision in the case of Sampath Kumar vs. Ayyakannu and another, (2002) 7 SCC 559, wherein it has been observed:-

"Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment."

Having regard to the aforesaid and also considering the fact that no prejudice will be caused to the respondents/defendants as they can be given opportunity to make consequential amendment in the written statement and can also be awarded appropriate cost by allowing the amendment, the impugned order of the trial Court is set aside, the application for amendment filed by the petitioner is allowed subject to payment of cost of Rs.2,000/- by the petitioner to the respondents No.1 to 4. Trial Court will pass an appropriate order on the next date of hearing for incorporation of the amendment in the plaint and give an opportunity to the respondents to make consequential amendment in the written statement.

C.c. as per rules.