Riyazuddin vs Nisaruddin @ Antim Lala And Others

Subodh Abhyankar, J

01] This petition has been filed by the petitioner/plaintiff under Article 227 of the Constitution of India, against the order dated 17.01.2023, passed by the Civil Judge, Senior Division, Ujjain in RCSA No.28-A/2017 whereby, the application filed by the petitioner under Order 6 Rule 17 of the C.P.C., 1908 for amendment in the plaint, has been rejected.

02] In brief, the facts of the case are that the aforesaid suit was filed on 15.7.2017, by the plaintiff for injunction only. The suit was contested by the respondents/defendants, and after the evidence was recorded, the learned Judge of the trial court has passed the judgment dated 18.7.2019, and dismissed the suit. Against the aforesaid dismissal, the plaintiff preferred an appeal before the District Appellate Court along with an application under Order 41 Rule 27 of the C.P.C. for placing on record the additional documents. The aforesaid application was allowed by the District Appellate Court vide its order dated 23.3.2021, and remanded the matter back to the trial court holding that certain issues have not been framed by the trial court which ought to have been framed, and thus, directing the trial court to decide the matter on further additional four issues, and it was also directed that if the trial court so requires, other issues may also be framed and the matter may be decided in accordance with law. When the matter went back to the trial court, the plaintiff filed an application under Order 6 Rule 17 of the C.P.C. seeking amendment of the plaint in respect of the documents, which were filed by him in the application under Order 41 Rule 27 of the C.P.C., which was already allowed by the District Appellate Court. However, the aforesaid application has been rejected by the learned Judge of trial court by the impugned order dated 17.01.2023, holding that if the aforesaid application is allowed it would change the nature of the suit, and also on the ground that even though the appellate court has allowed the application filed under Or.41 r.27 of CPC, but after the remand, the application for amendment has to be decided on the general rules of amendment applications, and since the plaintiff had the knowledge of the aforesaid documents, he could have carried out the said amendment earlier also, and in such circumstances, it was held that the application being filed after undue delay, cannot be allowed, as the defendants are likely to be prejudiced by the aforesaid amendments.

03] Shri Harish Chandra Tripathi, learned counsel for the petitioner has submitted that the aforesaid documents regarding which the petitioner's application was already allowed by the learned District Appellate Court under Order 41 Rule 27 of the CPC, were required to be pleaded in the plaint itself, otherwise, the application which has been allowed by the Ditrict Appellate Court would not have any meaning at all. It is submitted that the learned Judge of trial court has erred in not taking into account the fact that the District Appellate Court has remanded the matter back with a direction that certain issues may be framed, and certain additional issues may also be framed as the Civil court finds expedient, and the matter was directed to be decided in accordance with law. In such circumstances, it is submitted that the application should have been allowed and should not have been rejected.

04] Learned counsel for the respondent, on the other hand, has opposed the prayer and it is submitted that no case for interference is made out as the learned Judge of the trial court has rightly rejected the application on the principles enshrined under Order 6 Rule 17 of CPC and if the amendment is allowed to be carried out, it would cause serious prejudice to the respondent, and also would change the nature of the suit. Thus, it is submitted that the petition be dismissed.

05] Counsel for the respondent has relied on the decision rendered by this Court in the case of Rajaram vs. Vithabai and others reported as 1990 JLJ 7 to submit that the court to which the case has been remanded back has to comply with the order of remand in its letter and spirit, and acting contrary to the order of remand is contrary to law and in that case, the amendment was not allowed.

06] Heard the counsel for the parties and perused the record.

07] On due consideration of the rival submissions and on perusal of the documents filed on record, it is found that the learned Judge of the District Appellate Court while disposing of the appeal vide its order dated 23.03.2021, and remanding back the matter to the civil court, has made the following observations (relevant para 16,17 and 19):-

08] So far as the order observations made in the aforesaid order which relates to the application filed under Order 41 Rule 27 of the C.P.C. are concerned, para 11 of the same reads as under:-

09] A close scrutiny of the aforesaid order of the District Appellate Court reveals that it has opined that the documents produced by the petitioner/plaintiff in the appeal for the first time under Order 47 Rule 27 of the CPC were not in possession of the petitioner during the trial. In such circumstances, this Court is of the considered opinion that the application filed by the petitioner/plaintiff under Order 6 Rule 17 of the CPC for amendment in the plaint in respect of the aforesaid documents ought to have been allowed. It is also found that the plaintiff has not sought any amendment in the relief clause of the plaint. Thus, it cannot be said that the aforesaid amendment would change the nature of the suit itself.

10] The learned Judge of the trial court has rejected the application on the general principles of deciding application under Order 6 Rule 17 of the CPC, and has held that since the application for amendment has been filed after undue delay, the same cannot be allowed, which finding runs contrary to the order passed by the district appellate court as aforesaid, in which, the Court has recorded the finding that the aforesaid documents were not in possession of the petitioner/plaintiff during the trial. In such circumstances, the decision relied upon by the respondents in the case of Rajaram (supra) would not be of any avail to them. On the contrary, it supports the petitioner’s case. The relevant part of para 5 of the aforesaid decision in the case of Rajaram (supra), reads as under:-

“5 ……...It is also settled that the Court, to which the case is remanded back, has to comply with the order of remand and any action not in compliance with the order of remand or acting contrary to the order of remand, is contrary to law. After remand, the jurisdiction of the lower Court depends upon the terms of the order of remand. Even the Court has no jurisdiction to entertain an application for allowing an amendment in the plaint if it is not directed in the order of remand. See Rameshwar Dayal Khandelwal v. Dr. Bhagwandas[4], Shambhulal v. Union of India and another [5] and Rukhmanand v. Dinbandhu and others [6]...............”

(emphasis supplied)

11] In the aforesaid case also, this Court has held that after remand, the jurisdiction of the lower Court depends upon the terms of the order of remand, and this Court has directed the trial court to frame additional issues, if any, necessary and to decide the same in accordance with law, thus, merely if the Appellate Court has not specifically directed to the trial court to entertain an application for amendment, it cannot be inferred that the Appellate Court had restricted the same. As already observed, it has been held by the appellate court that the documents which have been filed by the petitioner/plaintiff under Order 41 Rule 27 of the C.P.C., were not available with the petitioner/plaintiff during the trial. In such circumstances, if the petitioner/plaintiff is not allowed to incorporate the aforesaid documents in the body of the plaint, the order on the application under Order 41 Rule 27 of the CPC, which was allowed by the district appellate court would become otiose, and that cannot be the intention of the District Appellate Court.

12] In view of the same, the petition deserves to be and is hereby allowed and the impugned order dated 17.01.2023(Annexure P/1) is hereby set aside. Resultantly, the application filed by the petitioner under Order 6 Rule 17 of the CPC is allowed and learned Judge of the trial court is requested to allow the petitioner/plaintiff to carry out the amendments and proceed further, in accordance with law.