Malik Basha and Mohamed Raffi rep. by Power Agent Sultan Ali Khan vs Soukath Ali Khan and Others

M. Jaichandren, J.—This Civil Revision Petition has been filed praying that this Court may be pleased to set aside the fair and decretal

order, dated 21.11.2008, made in I.A. No. 142 of 2007, in O.S. No. 12 of 2005, on the file of the 1st Additional Subordinate Court, Villupuram.

The petitioners in the present Civil Revision Petition are the plaintiffs in the suit, in O.S. No. 12 of 2005. The petitioners had filed the suit, in

O.S. No. 12 of 2005, for partition and for separate possession of 2/3rd share in the suit property. The petitioners had filed an interlocutory

application, in I.A. No. 142 of 2007, in O.S. No. 12 of 2005, praying for an order to permit the petitioners to amend the plaint.

The learned 1st Additional Subordinate Judge, Villupuram, by his order, dated 21.11.2008, had dismissed the application stating that the

amendment sought for by the petitioners would change the character of the suit. The plaintiffs in the suit had claimed in the plaint that the suit

property had been purchased by one Kasimkhan, who is the grandfather of the plaintiffs. However, by the amendment sought to be made in the

plaint, the petitioners were introducing a new case by stating that the suit property had been purchased by Zarina Bee, the mother of Kasimkhan.

The trial Court, while refusing the request made by the petitioners to amend the plaint, had also stated that it has not been made clear as to whether

Kasimkhan was the only legal heir of Zarina Bee.

The learned Counsel appearing on behalf of the petitioners had stated that the application filed by the petitioners for the amendment of the plaint

ought to have been allowed, as it is not, in any way, inconsistent with the earlier pleadings. The Court below ought to have allowed the request for

amendment of the plaint, unless the amendment would introduce a new cause of action and would prejudice to the other parties to the suit.

The learned Counsel appearing on behalf of the petitioners had relied on the following decisions in support of his contentions:

5.1. In Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, , the Supreme Court had held that 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 6 Rule 17 consists 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. The real controversy test is the basic 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. If it is, the amendment will be allowed. If it is not, the amendment will be refused.

5.2. In North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., , the Supreme Court had held that ""the principles

governing the question of granting or disallowing amendments under Order 6 Rule 17 of the Civil Procedure Code, 1908, are well settled. Order 6

Rule 17 of the Code postulates amendment of pleadings at any stage of the proceedings. All amendments ought to be allowed which satisfy the

two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in

controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the

pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs"".

5.3. In Sampath Kumar Vs. Ayyakannu and Another, , the Supreme Court had held that ""the basic structure of the suit would not be altered by the

proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. If it is permissible for the plaintiff to file an

independent suit for the said relief the same relief can be permitted to be incorporated in the pending suit. In the facts and circumstances of the

case, allowing the amendment would curtail multiplicity of legal proceedings. The plaintiff thus permitted to incorporate the plea sought to be raised

by way of amendment in the original plaint foregoing the plea to the extent given up by him before the trial Court. However, in view of the delay in

making the application for amendment, it is directed that the plaintiff shall pay a cost of Rs. 2,000/- (Rs.Two Thousand only) as a condition

precedent to incorporating the amendment in the plaint.

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. If the facts alleged by plaintiff are not correct it is open for the defendant to take such plea in the written statement and if the plaintiff fails in

substantiating the factual averments and/ or the defendant succeeds in substantiating the plea which he would obviously be permitted to raise in his

pleading by way of consequential amendment then the suit shall be liable to be dismissed. The defendant is not prejudiced, more so when the

amendment was sought for before the commencement of the trial.

5.4. In Surender Kumar Sharma Vs. Makhan Singh, , the Supreme Court has held as follows:

As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e.

the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to

see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of

the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a

party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was

filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed

on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be ground to refuse the

amendment.

It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour

of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or

otherwise. (See B.K.N. Narayana Pillai Vs. P. Pillai and Another, . Accordingly, we do not find any reason to hold that only because there was

some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.

The learned Counsel appearing on behalf of the sixth respondent had relied on the decision of the Supreme Court, in Rajkumar Gurawara

(Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, , wherein, it has been held that if an amendment is sought for after the

commencement of the trial in the suit, the question of prejudice to the opposite party may arise. Hence, it is incumbent on the part of the Court to

satisfy the conditions prescribed in the proviso to Order 6 Rule 17 of the Civil Procedure Code, 1908.

In view of the averments made on behalf of the petitioners, as well as the sixth respondent and in view of the submissions made on behalf of the

parties concerned and in view of the decisions cited supra, this Court is of the considered view that by the amendment sought to be made by the

petitioners, neither the character, nor the nature of the suit filed by the petitioners is likely to be altered. No new relief is sought for by the

petitioners. Further, the trial Court had not shown the aspect of delay as a reason for rejecting the request of the plaintiffs, who are the petitioners

herein, for amending the plaint filed, in O.S. No. 12 of 2005, on the 1st Additional Subordinate Court, Villupuram.

As seen from the decisions cited supra, by the learned Counsel appearing for the petitioners, it is clear that if an amendment is sought for under

Order 6 Rule 17 of the Civil Procedure Code, 1908, the Court concerned is to see if such an amendment would cause injustice or prejudice to the

other parties, taking into consideration the real dispute or controversy arising for adjudication. If no such injustice or prejudice would cause to the

other parties to the suit, the amendment may be allowed. Even if it is belated, it can be compensated by costs, or otherwise.

In the present case, the respondents have not been in a position to show that irreparable prejudice would be caused to them, if the amendment

sought for by the petitioners, is allowed. Further, the trial Court has not stated, while rejecting the request for amendment, that there has been a

delay in seeking the relief. Even though the Court below had stated that the petitioners had not stated that there are no other legal heirs for

Kasimkhan''s mother, that cannot be held to be a sufficient ground to reject the prayer of the petitioners for the amendment sought for by them.

In such circumstances, the order of the 1st Additional Subordinate Court, Villupuram, dated 21.11.2008, made in I.A. No. 142 of 2007, in

O.S. No. 12 of 2005, is set aside. Consequently, I.A. No. 142 of 2007 would stand allowed, subject to the petitioners paying an amount of Rs.

2,000/- (Rupees Two thousand only), to the respondents, as costs, within a period of two weeks from the date of receipt of a copy of this order.

The Civil Revision Petition stands ordered accordingly. No costs. Consequently, connected C.M.P. No. 1 of 2009 is closed.