Kalawati vs Bhagwandas and Others

Rohit Arya, J.—By this petition under Article 227 of the Constitution of India, petitioner has questioned the order dated 23/2/2015 passed by trial Court. Respondent/defendant No. 1''s application under Order VI Rule 17 CPC has been allowed.

Facts necessary for disposal of this petition are to the effect that defendant filed an application under Order VI Rule 17 CPC as well as under under Order VIII Rule 1(3) of CPC to bring on record certain relevant facts which have surfaced during the course of examination of witnesses of plaintiff inasmuch as (i) plaintiff has prepared forged death certificate of Mataprasad which does not bear the photograph of Mataprasad but one Mathuraprasad; (ii) a forged Will has been prepared allegedly executed by Late Mataprasad in favour of plaintiff; (iii) in the Voter ID card issued by Election Commission of India and produced during the examination of witnesses, it is revealed that the name of Malhari was scratched to change the name of father of plaintiff Mataprasad; and (iv) manipulated voter list was also prepared.

That apart some more facts of fraud have also been surfaced during examination of plaintiff''s witnesses, therefore, he filed an application for amendment in written statement. The details as mentioned in application Annexure P/5 are self contained and explanatory in nature.

Trial Court by detailed order has held that the amendments sought to be brought on record no way cause any prejudice to the petitioner/plaintiff. Amendments were found to be relevant and deserves to be allowed on cost of Rs. 100/-

The law as regards the principle underlying Order VI Rule 17 are well settled. The power vested with the Court under Order VI Rule 17 CPC is though discretionary but required to be exercised judiciously with circumspection to meet the ends of justice and a duty is cast upon the trial Court to ensure that despite due diligence the party could not have raised the matter before the commencement of trial. Amendment may also be allowed even after trial has commenced as held by Apex Court in the case of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., AIR 2006 SC 2832 : (2006) 7 JT 139 : (2006) 7 SCALE 517 : (2006) 6 SCC 498 : (2006) 4 SCR 259 Supp : (2006) AIRSCW 3956 : (2006) 5 Supreme 943 . Para 8 of the aforesaid order reads as under:-

"8. It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya vs. Maung Mo HnaungAIR 1922 249 (Privy Council) , in which the Privy Council observed:

"All rules of courts are nothing but provisions intended to secure the proper administration of justice, and it is therefore, essential that they should be made to serve and b subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been give no enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."

(emphasis supplied)

In the instant case, the trial Court has found that the amendments sought by defendant are based on certain facts which have been surfaced during the examination of plaintiff''s witnesses, therefore, has allowed the amendment. Hence, in the opinion of this Court, no illegality or jurisdictional error can be said to have been committed by trial Court while passing the impugned order allowing the application under Order VI Rule 17 CPC. Besides, by the same order, trial Court has also dealt with an application under Order VIII Rule 1(3) CPC and allowed the same permitting the defendant to bring on record the documents relevant such as Voter ID card of Mataprasad son of Malhari which has been forged by plaintiff, in support of his assertions made in the application.

Having perused the order impugned, in the opinion of this Court, the power exercised by trial Court was fully justified and in accordance with law, hence, no interference is called for in impugned order in exercise of power under Article 227 of the Constitution of India. Petition being bereft of merits, is hereby dismissed.