Neeta Narang (Smt.) vs Smt. Beena Valicha

Sanjay Yadav, J.

By way of present writ petition under Article 227 of the Constitution of India, the petitioner/defendant calls in question the legality of the order dated 18.1.2010; whereby, the First Additional District Judge, Jabalpur, rejected the application under Order 6 Rule 17 of the CPC 1908 (hereinafter to be referred as CPC), for amendment in the written statement. As also an application under Order 8 Rule 1-A(3) of CPC was dismissed.

The Civil Suit in question is at the instance of respondent/plaintiff for recovery of an amount of Rs.68,000/- said to be the remainder of part payment from Rs. 1,00,000/- said to be borrowed by the husband (since deceased) of the petitioner/defendant during his lifetime.

The case of the respondent/plaintiff is that the late husband of petitioner/defendant borrowed a sum of Rs. 1,00,000/- which was paid to him by Cheque No.268253 dated 4.3.2003. In lieu of security thereof, he had issued post dated cheques in favour of the respondent/plaintiff bearing No.688631 dated 2.7.2003. The said cheque when was put for encashment was returned on 5.11.2003 with an endorsement "deceased account", as the husband of the petitioner/defendant had expired on 5/5/2003. The respondent/plaintiff claiming that the petitioner/defendant having succeeded to the business of her husband for which the said amount was tendered called upon her to settle the claim, whereupon the amount of Rs.50,000/- on 14.3.2004 was paid vide drafts bearing No.547900 and 547901. It is for the remainder amount along with interest that the respondent/plaintiff brought the said suit.

The petitioner/defendant raised the defence, that the matter was amicably settled when an agreement was entered between the petitioner/ defendant and respondent/plaintiff on 15.3.2004. Subsequently, the petitioner/ defendant proposed to amend the written statement vide application under Order 6 Rule 17 CPC for incorporating following additional pleadings:

(i) That as per the fact set-out in the plaint, the plaintiff pleaded that she is dealing with business of money-lending as well as so admitted in her deposition. But she nowhere made averment that she has got herself registered as Money lender as well as failed to produce registration certificate. In absence of such registration, the suit is not maintainable according to law.

(ii) That, the plaintiff is carrying on business of money-lending, but in consonance of legal provision she is neither regularly maintaining account separately of all transaction of each debtor in respect of loan and interest. Her nor furnished legible statement of account under her signature to the defendant or her late husband-as well as to the Sub Divisional Officer concerned, she is therefore not entitled for any sum of interest and cost of the suit, but penal action u/s 11EF of Money Lender Act.

(iii) Though the contents of paras 1 to 7 of the plaint have been collectively denied in para 1 of the written statement, but to make it more specific and clear it is particularly further pleaded that this defendant did not in-heritate any assets and liability under the name of M/s Swayam Cell. Com from her late husband. The plaintiff is called upon to strict proof. The defendant is not required to repay the debt of her husband.

(iv) That, being Hindu widow by religion and just to get the peace to departed soul of her late husband as well as to preserve and maintain his dignity, prestige e and image among the society the answering defendant deemed fit and proper to discharge the outstanding liability of her late husband by entering into an amicably settlement that too not only with plaintiff alone by making payment of 50% but also to other in whose favour, liability exists such as Chhotelal Jain, Kapil Kumar Jain, Smt. Kamala Devi, Fabiyani, Brijesh Agrawal, Naresh Chandra Jain and Alish & sons Jabalpur proprietor Ashok Rohara

The application was opposed by the respondent/defendant on the ground that, The same has been moved after the respondent/plaintiff has led her evidence, the amendment was also opposed on the ground that, the same would lead to reopening of the entire case and is dilatory in nature.

The trial Court while accepting the proposition of law as laid down in P.A. Jayalakshmi Vs. H. Saradha and Others, 525 that the Court should be liberal in allowing application for leave to amend pleadings; however, set on to reject the application on the ground of delay and that the same would cause prejudice to the plaintiff (respondent herein). It observed that all the facts proposed by way of amendment were within the knowledge of defendant from the commencement of case, i.e., the day when she had the copy of plaint and no efforts were made to amend the written statements. It also observed that, allowing the proposed amendment at the stage of evidence would prolong the suit and would be prejudicial to the plaintiff.

It is this order which the petitioner/defendant calls in question. The petitioner questions the order on the ground that, the trial court grossly erred in rejection the proposed amendment as the same was necessary for determining the real question in controversy.

The respondents, however, support the order of rejection.

Having considered the rival submissions, it is to be seen whether the trial court was justified in rejecting the application for amendment.

Rule 17 of Order 6 CPC stipulates:

[17. Amendment of pleadings,- The Court may at any stage of 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, party could not have raised the matter before the commencement of trial].

A close look at the provision indicates that the basic percepts for allowing the application for amendment of pleadings are that such amendment shall be necessary of the purpose of determining the rule in question and the controversy between the parties.

The object of the provision as contained under order 6 Rule 17 was considered by the Privy Counsel in Ma Shwe Mya V Maung Mo Hnaung : AIR 1922 PC 249, wherein it was 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 be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject matter of the suit

In the case of Raj Kumar v. Dipender Kaur Sethi, AIR 2005 SC 1592, it was observed by their Lordships:

8....Reiterating the principle laid down in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, it was held by this Court that all amendments ought to be allowed which satisfy the two conditions: (a) 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. It was further observed:

Amendment 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. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim.

In Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, , it was held that, the 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 p ties provided it does not cause in justice or prejudice to other side. Their Lordships were pleased to observe:

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 for determining the real question in controversy between the parties provided it does not case injustice or prejudice to the other side.

Order 6 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.

As discussed above, 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 not, the amendment will be allowed, if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendments should be exercised in the larger interest of doing full and complete justice to the parties before the Court.

In the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, , their Lord ships were pleased to observe:

It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one....

The trial Court while rejecting the application under Order 6 Rule 17 has placed reliance on the judgment in P.A. Jayalakshmi (supra), wherein, their Lordships were pleased to observe:

There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the CPC (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them In north Eastern Railway Administration Gorakhpur v. Bhagwan Das the law has laid down by this Court in the following terms:

Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the 8 proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that 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 (Also see Gajanan Jalkishan Joshi v. Prabhakar Mohanlal Kawar)

Yet again, in Vidyabai and Others Vs. Padmalatha and Another, , this court upon taking into consideration the effect, of the insertion of proviso to Order VI Rule 17 held as under:

By reason of the CPC (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the code, which reads as under:

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." It is couched in a mandatory form. The court''s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

It is the primal duty of the court to decide to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a 10 condition is fulfilled, the amendment is to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court''s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therin, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.

True it is that proviso to Rule 17 of Order 6 Of CPC stipulates that no application for amendment shall be allowed after the trial has commenced uless the Court comes to the conclusion inspite of due diligence, the parties could not have raised the matter before commencement of the trial.

In the case at hand, the occasion to raise the issue as to respondent/ plaintiff dealing in the business of money lending and the fact that the petitioner/defendant having not inherited the business of her deceased husband accrued only when respondent/plaintiff had amended the plaint. Definitely, the petitioner/defendant could have caused the amendment in considered opinion, deprive the petitioner from seeking the amendment.

The facts adverted to by way of proposed amendment are necessary to decide the real dispute between the petitioner/defendant and the respondent/plaintiff, we are, therefore, of the considered opinion, that trial Court ought to have allowed the application.

Keeping in view the above and the nature of amendment sought in written statement as would lead to "serve proper administration of justice", we are of the opinion that, the amendment as sought for by the petitioner/ defendant deserves to be and is hereby allowed; however, subject to Rs.2,000/ - as cost. The order rejecting the same is quashed. The trial Court to allow the amendment within seven days from the date of communication of this order. The respondent/plaintiff would be at liberty to seek consequential amendment in her suit plaint.

Regarding application under Order 8 Rule 1-A(3) of CPC, where by the petitioner/defendant intends to bring on record the documents, i.e., various contracts entered into with persons who are not party. We do not find and discrepancy in the approach of the trial court in rejecting the same, being filed at a belated stage with no cogent explanation.

In the result the order rejecting application under Order 8 Rule 1-A (3) of CPC is upheld.

The petition is partly allowed to the extent above However, no costs of present petition.