Sanjay Paul vs Rakesh Chandra Das

This writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 13.06.2018 passed in Title Appeal Case No.11 of 2014 by the District Judge-IX, Jamshedpur as contained in Annexure-4 whereby and whereunder a petition dated 02.04.2018 filed under Order VI Rule 17 of the Code of Civil Procedure, has been rejected on the ground that the petitioner has failed to satisfy the trial court that as to why the amendment sought for has not brought on record at the time of filing of the plaint.

The brief facts of the case of the petitioner is that the Title Suit has been preferred being Title Suit No.11 of 2008 with a prayer for a decree for declaring the right, title and interest of the plaintiff/petitioner of party with respect to Stall No.31-C/1 measuring 8' x 10' tin-shed stall premises situated at Muri Line, Sakchi, P.S. Sakchi, Town Jamshedpur, District Singhbhum East, he having lost in the suit and as such he has preferred an appeal being registered as Title Suit No.11 of 2014.

The petitioner at the stage of appeal, has filed a petition on 02.04.2018 under the provision of Order VI Rule 17 of the Code of Civil Procedure seeking therein the following amendments sought to be made which reads hereunder as:

i) Before the name and address of the existing Defendant the digit '1' be added.

ii) After the name and address of the existing Defendant "Tata Steel Ltd., A Company incorporated under the Indian Companies Act, 1956 having its registered office at 24 Homi Modi Street Fort, Bombay and its works at Jamshedpur, District East Singhbhum" be added as Proforma Defendant No.2 in this suit.

iii) After the name and address of the Defendant No.2 "The State of Jharkhand, represented by the Deputy Commissioner, East Singhbhum at Jamshedpur, Bistupur, Town Jamshedpur, District east Singhbhum, Jharkhand added as Proforma Defendant No.3.

iv) In the relief number after the words 'title and interest' and before the words 'of the plaintiff' the following words be added "of the State of Jharkhand and Tata Steel limited as lessee under the State of Jharkhand and the tenancy interest" be added."

The said amendment having been rejected hence, the present writ petition has been filed.

Learned counsel appearing for the petitioner has submitted that as per the provision made under Order VI Rule 17 of C.P.C., the amendment is to be allowed at any stage to the suit it is for the reason that there may not be any miscarriage of justice and since the present amendment petition has been filed at the appellate stage and the appeal is in continuation of the suit, therefore, the trial court ought to have been taken into consideration this aspect of the matter but without appreciating the aforesaid fact, the petition filed under Order VI Rule 17 of the C.P.C., has been rejected hence the same is not sustainable in the eye of law.

Mr. Vineet Prakash, learned A.C. to S.C. (L&C)-I appearing for the State of Jharkhand, has vehemently opposed the ground agitated by the petitioner by submitting that it is not in dispute that an amendment is required to be allowed under the provision of Order VI Rule 17 of the C.P.C., at any stage of the suit but the plaintiff or the defendant, as the case may be, is required to be shown the due diligence as the what preventing the party in not coming with the said factual aspects/documents at the time of bringing the same at the time of filing of the plaint of the suit, as the case may be, and therefore, the appellate court after taking the position of law into consideration, has rejected the same and while doing so that the illegality can be said to be committed.

Having heard the learned counsel for the parties and after appreciating their rival submissions this Court is of the view that by going through the object and intent of the provision of Order VI Rule 17 of the C.P.C., that although the amendment sought to be incorporated by taking recourse of Order VI Rule 17 of the C.P.C., can be allowed at any stage of the suit and further the appeal being in continuation of the proceeding, the trial court even at the stage of appeal the amendment can be allowed but subject to the condition as has been incorporated under the provision of Order VI Rule 17 of the C.P.C., after the amendment having been brought in the Court of Civil Procedure w.e.f. 01.07.2002 wherein a provision has been inserted while seeking the amendment either by the plaintiff or by the defendant the due diligence is to be shown by such party showing the reason that what prevented in coming out with the said document or the statement which is being sought to be incorporated, this Court thinks it proper to first deal with the scope of Order VI Rule 17 of the CPC which is being referred which reads hereunder as:-

[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, the party could not have raised the matter before the commencement of trial.]

It is evident from the provisions as contained under Order VI Rule 17 CPC that conditions for allowing the amendment is (1) when the nature of the Suit is not changed, (2) without the amendment would result in introducing new cause of action and intends to prejudice other party (3) when the law of limitation, if fresh suit, an amendment in plaint would be defeated, barred that as a general rule it would be rejected but to avoid multiciplicity it can be allowed, reference in this regard may be made to judgment rendered in the case of Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., reported in (2008) 14 SCC 364, in the case of Revajeetu Builder and Developers vs. Narayanaswamy and Sons and Ors., reported in (2009) 10 SCC 84.

The scope of allowing the amendment under the aforesaid provision has been changed after the amendment brought in the Code of Civil Procedure w.e.f. 01.07.2002 wherein it has been enacted by adding provision namely no application for amendment of the pleading shall be allowed after the trial has been commenced unless the Court comes to conclusion that in spite of due diligence the party could not have raised the matter, reference in this regard be made judgment rendered by the Hon'ble Supreme Court in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand reported in (2008) 5 SCC 117, in the case of Sumesh Singh Vs. Phoolan Devi & Ors. reported in (2009) 12 SCC 689 and in the case of Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors. reported in (2012) 11 SCC 341.

It is settled position of law that when amendment introduces a claim on a new cause of action, the amendment shall be effected from the date of amendment and it will relates back to the date of institution of the original suit, this has been considered by the Hon'ble Apex Court in the case of Siddalingamma and Anr. vs. Mamtha Shenoy, reported in (2001) 8 SCC 561.

It is also settled proposition of law that if any amendment is to be dissolute if afresh suit on the amended claims would be barred by limitation on the date of application, reference in this regard may be made to the judgment rendered in the case of L.J.Leach and Co. Ltd., & Anr. Vs. Messrs. Jairdine Skinner and Co Respondents. reported in (1957) SCR 438, in the case of T.N. Alloy Foundary Co. Ltd. Vs. T.N. Electricity Board & Ors. reported in (2004) 3 SCC 392, Ashutosh Chaturvedi Vs. Prano Devi Alias Parani Devi & Ors. reported in (2008) 15 SCC 610, and in the case of Ravajeetu Builders and Developers Vs. Narayanaswamy and Sons & Ors. reported in (2009) 10 SCC 84.

So far as the facts of the case in hand is concerned, admittedly the plaintiff after having lost in the suit, has preferred an appeal and at the stage of appeal, petition has been filed under Order VI Rule 17 of the C.P.C., on 02.04.2018. The trial court after giving with the condition inserted in the Code of Civil Procedure and after its amendment having been effected w.e.f., 01.07.2002 the condition about showing the due diligence by the party showing the sufficient cause and it is only in such circumstances the trial court while taking into consideration by passing the order by allowing the amendment sought for but as would appear from the impugned order has also been filed under Order VI Rule 17 of the C.P.C. as contained under Arnnexure-2 to the writ petition that no such reason has been assigned showing the due diligence of the plaintiff as to what prevented him in not coming with the said statement at the time of filing of the plaint and considering the aforesaid position of law the trial court has rejected the petition filed under Order VI Rule 17 of the C.P.C., therefore, the same cannot be said to suffer from any infirmity warranting interference by this Court under its revisional power conferred under Article 227 of the Constitution of India.

In view thereof, the writ petition stands dismissed.

Interlocutory application being I.A. No.10294 of 2018 stands disposed of.