N. Vijaya Lakshmi vs Honnali Lingappa

R.S. Chauhan, J.—Aggrieved by the order dated 16.10.2014 passed by the learned Principal Senior Civil Judge and JMFC, Hospet, whereby the learned Senior Civil Judge has allowed the application under Order 6 Rule 17 of Code of Civil Procedure, the petitioner has approached this Court.

Briefly stated the facts of the case are that the petitioner claims to be the owner of two properties bearing Door No. 152 in Ward No. 18 and an open site bearing No. 154 (Old Door No. 281) within the Hospet City Municipality. He further claims that he had purchased the said properties under registered sale deeds dated 6.11.1963 and 12.11.1963 from Bimawwa and Balajoji Reddy. On the other hand, the respondent claims to have purchased the same set of properties from Kenchappa, son of Bhimawwa and from Parasappa, son of Hanumanthappa on 9.12.1986. According to the petitioner, the respondent has purchased the properties from the children of the petitioner''s vendors. But as they had no title over the properties, they could not have transferred a better title to the respondent. The petitioner further claims that ever since 1963 he is in peaceful possession and enjoyment of the suit properties. However, the respondent started disturbing his peaceful possession. Therefore, the petitioner filed a suit for permanent injunction, namely O.S. No. 335/14 (old O.S. No. 149/2009).

The respondent filed his written statement denying the allegations made in the plaint. And after a lapse of five years from the date of filing of the civil suit and after commencement of the evidence, the respondent filed an application namely I.A. 12 under Order 6 Rule 17 CPC for amending the written statement. The petitioner filed his objection to the said application. By order dated 16.10.2014 the learned Judge allowed the said application. Hence, this petition before this court.

The learned Counsel for the petitioner has raised following contention before this Court:--

"Firstly, that once the trial had commenced, the application for amendment should not have been allowed by the learned trial court. For by allowing this application, the learned trial court has violated the proviso of Order VI Rule 17 CPC.

Secondly, by permitting the respondent to amend the written statement, he has been granted an opportunity to set up an alternative defence to the plaint filed by the petitioner.

Thirdly, by permitting the said amendment, the very nature of the suit is being changed. Thus, the learned Counsel has prayed that the impugned order dated 16.10.2014 should be set aside by this Court."

On the other hand, the learned Counsel for the respondent has vehemently contended that an amendment can be allowed by the trial court provided the trial court is convinced that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. At the time of filing of the written statement, the respondent was unaware of the documents which were available with the Revenue Department. It is only after he contacted the Revenue Department, that he realized that the land bearing Sy. No. 167 was a Government land. The said land was assigned to members of the "Harijan" caste, or to the members of the socially backward community. While assigning the plots there was particular stipulation that the land could not be sold for ten years. Therefore, the very sale of the land to the petitioner was illegal. Since these documents issued by the Revenue Department would permit the respondent/defendant to have an additional defence, since these documents and the proposed amendment do not change the nature of the suit, the learned Judge was certainly justified in allowing the amendment application. Hence, the learned Counsel for respondent has supported the impugned order.

Order VI Rule 17 CPC reads as under:

"17. Amendment of pleadings.--The Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

A bare perusal of the provision clearly reveals that the proviso does not debar the amendment of a plaint or a written statement after the trial has commenced. Instead, it bestows a discretionary power on the court to permit the amendment in case the court concludes that in spite of due diligence the party could not have raised the matter before commencement of the trial. Thus, the only requirement of the proviso is that the discretion must be exercised judiciously by the court. Merely because the amendment application has been filed five years after institution of the civil suit, would not be a valid ground for rejecting the amendment application. What is required to be seen by the learned trial court is, whether the facts newly brought by respondent were within his knowledge when he had filed his written statement or not? According to the respondent, while filing his written statement he did not know, and had no way of knowing at that juncture, that there are certain documents in the possession of the Revenue Department, which would have permitted him an additional defence. It is only after he came to know of these fresh facts that the respondent moved his application for amending the written statement. Therefore, the learned Judge is certainly justified in concluding that these fresh facts could not have been within the knowledge of the respondent-defendant even if he had exercised due diligence. Thus, the first contention raised by the learned Counsel that by permitting the amendment application the learned Judge has violated tenor of the proviso to Rule 17 of Order VI CPC is unacceptable.

A bare perusal of the impugned order clearly reveals that one of the issues framed by the learned trial court is, with regard to the maintainability of the suit. The facts being narrated by respondent by way of wanting to amend his written statement would only throw light on the said issue. Therefore, the learned Counsel for petitioner is unjustified in claiming, that by permitting the amendment in the written statement the very nature of the suit is being changed.

The bottom line of law is that "justice should not only be done, but should appear to be done" to the satisfaction of the litigants. By not permitting the respondent a chance to amend his written statement, by rejecting the evidence that may be in his favour just on the threshold of the trial, without giving the respondent chance to produce the said evidence, would obviously leave the respondent with a feeling that justice has not been done to his cause. Therefore, the learned Judge was justified in permitting an amendment, which would not cause any prejudice to the petitioner. In case the amendment application were not permitted, it may possibly cause prejudice to the case of respondent/defendant.

The learned Counsel for the petitioner further contends that the Government is not a necessary or proper party in the present suit. Even if there is possibility that the land may be government land, even then the dispute about encroachment or disturbance into peaceful possession of the petitioner does not concern the government. Moreover, the petitioner/plaintiff has not sought any relief against the government. Therefore, the learned Judge was not justified in permitting the amendment of the written statement to the extent of making the government party respondent in the civil suit.

The learned Counsel for the respondent has opposed the said contention by claiming, that since the land does belong to the government, the government would be necessary and proper party.

The civil suit happens to be a dispute strictly between the petitioner/plaintiff and respondent/defendant. The plaintiff has not come up with the case that the government is interfering with his peaceful possession. The petitioner has also not claimed any relief against the government. Therefore, obviously the government is neither a necessary, nor a proper party to the suit for injunction. Hence, the learned judge is unjustified in allowing the application for amendment in toto. Therefore, the order dated 16.10.2014 needs to be modified.

Hence, this petition is partly allowed. While this court upholds the part of the impugned order permitting the respondent to amend the written statement, this court sets aside the direction of the trial court in permitting and insisting that the Government should be made party to the civil suit.

To this limited extent the order dated 16.10.2014 stands modified.