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Judgment
Lok Pal Singh, J
By means of present writ petition, petitioner has sought a writ in the nature of certiorari quashing/setting aside the order dated 17.05.2013 and 29.07.2013 (contained as annexure no.8 and 10 to this writ petition) respectively passed by Consolidation Officer, Kashipur and District Director of Consolidation/Collector, Udham Singh Nagar.
Factual matrix of the case are that on 12.12.1995 the respondent Sachchidannand filed objections under Section 9A(2) of the U.P. Consolidation of Holding Act, 1953, before the court of Consolidation Officer Kichha, Udham Singh Nagar, stating therein that the land belongs to Kabir Math Kalyandehra Tehsil Sikandarpur, District Baliya. Sahdeo Bahgat Chela Mahesh Bhagat was the Mahant. He took active part in the freedom movement in the year 1942 and as such in 1959 aforesaid land was allotted to him. One freedom fighter Faiku Gupt was also allotted a land nearby the aforesaid land. Sahdeo Bhagat and Faiku Gupt became neighbours. In May 1698, Mahant Sehdeo Bhagat died, whereafter, his successor Chela Vasudeo Bhagat became the Mahant and the aforesaid property was inherited by him. Mahant Vasudeo Bhagat was given the assurance by Faiku Gupt that he would get enter the name of Mahant Vasudeo Bhagat in the revenue records but fraudulently he got entered the name of his nephew Sriram Gupta in the record though in fact Sriram Gupt was not the successor of Sri Sahdeo Bhagat. On the basis of registered will, after the death of Mahant Sahdeo Bhagat, respondent Sachchidanand Bhagat became the successor of the Mahant Sahdeo Bhagat. In the year 1992, when some dispute arose, he inquired the revenue records and came to know that the name of petitioner no.1 was mutated vide order dated 07.10.1968. Thereafter, the mutation order was challenged but during the pendency of proceedings, consolidation proceedings started in the village.
The respondent instituted the case being case no.101 under Section under Section 9A(2) of the U.P. Consolidation of Holding Act, 1953, (hereinafter to be referred as the Act) in the court of Consolidation Officer Kichha, Udham Singh Nagar, seeking declaration of his rights over the suit property. The statement of the respondent was recorded. Thereafter, respondent felt that some amendment is required in the objection filed u/s 9A(2) of the Act. Therefore, on 08.04.2013, he moved an application, seeking following amendments in the objections:-
मूल आपत्ति / वाद पत्र के पैरा 4 की प्रथम पंक्ति में शब्द पंजीकृत वसीयतनामा के बाद "दिनांक 29.09.1970" लिखने की आज्ञा।
इसी पैरा की दूसरी पकि्ंत में शब्द पर के बाद मठ कल्याण डेहरा बालिया व उसकी सम्पत्ति तथा विवादित भूमि बागवाला तहसील किच्छा प्रार्थी को लिखने की आज्ञा दी जाय।
इसी पैरा के लाइन नम्बर 3 में शब्द करता रहा के बाद "लेकिन किसी गलत फेहमी से श्री बासुदेव भगत ने उक्त बसीयत को दिनांक 21.03.1972 को निरस्त कर दिया तदउपरान्त अपना समाधान कर पुनः एक बसीयत दिनांक 16.02.1983 को लिखी जिसके माघ्यम से बसीयत दिनांक 29.09.1970 को यथावत रखा" लिखने की आज्ञा दी जाय।
मूल आपत्ति/ वाद पत्र के पैरा नम्बर 5 के अन्त कें "न्यायालय पर परगनामजिस्ट्र वांस डीह जिला बलिया में चले मुकदमें में उक्त बसीयत दिनांक 29.09.1970 पेश की थी जो मानी गई और आपत्तिकर्ता जीता" लिखने की आज्ञा दी जाय।
The petitioner filed objections to the amendment application stating therein that the amendment sought would change the nature of case, which is not permissible in law; respondent was aware of the facts sought to be incorporated in his objection since the time of filing objection dated 12.12.1995; will dated 16.02.1983 is forged and fabricated; and by way of amendment, the respondent is taking a new plea.
After hearing the learned counsel for the parties and upon perusal of entire material available on record, the Consolidation Officer, Kashipur, District Udham Singh Nagar, by order dated 17.05.2013, allowed the amendment application. While doing so, the Consolidation Officer recorded a finding that the respondent has sought amendment, which is like a typing error, and the amendment is necessary for proper adjudication of the case. Feeling aggrieved, petitioners preferred revision being revision no.52 of 2010 before Deputy Director of Consolidation/District Magistrate, Udham Singh Nagar under Section 48 of U.P. Consolidation of Holdings Act, which also stood dismissed, vide judgment and order dated 29.07.2013.
Learned senior counsel appearing for the petitioner submits that the Consolidation Officer as well as the Deputy Director of Consolidation has erred in law in allowing the amendment application, which was filed after a lapse of almost 18 years, after commencement of the trial. He would further submit that by way of amendment the respondent has set up a new story and is withdrawing the admission, which is against the settled law. To buttress his submissions, learned senior counsel would place reliance on the following judgments:-
i) Ram Niranjan Kajaria vs. Sheo Prakash Kajaria and others (2016) 132 RD 176 SC
ii) Mashyak Grihnirman Sahakari Sanstha Maryadit vs. Uman Habib Dhuka and others (2013) 9 SCC 485
iii) Revajeetu Builders and Developers vs. Narayanaswamy and sons and others (2009) 10 SCC 84
iv) Writ Petition (M/S) No.679 of 2013 Yashpal Singh and others v. Hukam Singh and others
Per contra, learned counsel appearing for the respondent would submit that the amendment sought is only clarificatory and explanatory in nature; it neither withdraws the admission nor seeks time barred claim. He would further submit that the proviso to Order VI Rule 17 of CPC was made effective w.e.f. 01.07.2002 after the amendment in CPC, which has prospective effect and would not apply on the amendment application filed in pending cases prior to 2002. To buttress his submissions, he would place reliance on the following judgments:-
i) State Bank of Hyderabad vs. Town Municipal Council (2007) 68 ALR 332 (S.C.)
ii) B.K. Narayana Pillai v. Parameswaran Pillai and Another 2000 (1) SCC 711
I have heard learned counsel for the parties and perused the entire record.
Before any discussion, it would be apt to reproduce Order VI Rule 17 of The Code of Civil Procedure, 1908 (hereinafter to be referred as the Code), which is as follows:-
"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."
A perusal of above provision makes it clear that the Court is conferred with the power to allow the amendment of the pleadings at any stage of the proceedings, if the Court is of the view that such amendment is necessary for the purpose of determine the real questions in controversy between the parties and to do the substantial justice. However, proviso appended to Rule 17 puts an embargo that no application for amendment shall be allowed after the trial has commenced, however, it has been left upon the Court to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial.
In my opinion, the amendment sought is necessary for the purpose of determining the real controversy between the parties though filed at a belated stage. A reading of the objections and the proposed amendment would go to show that no new or inconsistent plea has been taken by the respondents.
The amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in a larger interest to do the substantial justice to the parties before the Court. The law on this point is no more res integra having been settled in a catena of decision. Thus, this Court thinks it just and proper to consider the proposed amendment in the light of dictum of Hon'ble Apex Court.
In Rajesh Kumar Aggarwal v. K.K. Modi AIR 2006 Supreme Court 164, Hon'ble Supreme Court has held as under:-
"16. 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 VI 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, 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 amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.
As regards the delay in filing the amendment application, Hon'ble Supreme Court in the case of Andhra Bank v. ABN Amro Bank AIR 2007 Supreme Court 2511, while observing that the delay is no ground for not allowing the prayer for amendment, has held as under:-
... After going through the written statement and the application for amendment of the written statement, we are of the view that the amendment sought to be introduced by the appellant must be allowed. From a perusal of the impugned order of the Special Court we find basically that two grounds have been taken by the Special Court for rejecting the prayer for amendment of the written statement. The first ground is that considerable delay has been caused by the appellant in filing the application for amendment of the written statement. It is well settled that delay is no ground for refusal of prayer for amendment. Mr. Ganesh, appearing for ABN Amro Bank submits before us that by filing of such an application for amendment of the written statement which has been filed with long delay, the appellant sought to stall the hearing of the suit which has been fixed on 13th July, 2007. In response to this Mr. Kapadia, learned counsel for the appellant, submits that in the event the prayer for amendment is allowed by us his client undertakes to file the amended written statement by day after tomorrow, i.e., 12th July, 2007 before the Special Court. Since, we are of the view that delay is no ground for not allowing the prayer for amendment of the written statement and in view of the submissions made by Mr. Kapadia, we do not think that delay in filing the application for amendment of the written statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable."
Let me now consider the judgments cited by learned senior counsel appearing for the petitioner :-
(i) In Ram Niranjan Kajaria (supra), an amendment application was filed after 15 years of the filing of the original written statement, seeking to resile from admission regarding relinquishment of their right in suit property. The Supreme Court, thus, held that a party cannot be permitted to wholly withdraw the admission in the pleadings by way of an amendment.
This judgment is distinguishable on facts. In the instant case, there is no such withdrawal of admission by the respondent. By way the amendment application, the respondents are clarifying the averments made in the objections filed under Section 9A(2) of The Act.
(ii) In Mashyak Grihnirman Sahakari Sanstha Maryadi (supra), the facts which the plaintiff wanted to incorporate in plaint were within his knowledge prior to filing of suit but they failed to incorporate the same in suit. In such circumstances, Hon'ble Supreme Court held that the amendment application is not only a belated one but was clearly an afterthought for the obvious purpose to avert the inevitable consequence.
Again, the facts of the judgments are different from the present case. Here, the respondent is not incorporating any new fact but the proposed amendment is an elaboration of what was stated in the objections.
In Revajeetu Builders (supra), Hon'ble Supreme Court has laid down certain basic principles to be taken into consideration while allowing or rejecting the application for amendment. In para-63, it was held as under:-
"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bonafide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
This judgment does not help to the petitioner; rather it strengthens the case of the respondent. The ratio of judgment is that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and where the amendment sought is imperative for proper and effective adjudication of the case it should be allowed. The instant case is one such case wherein the amendment sought is imperative for effective adjudication of the case.
In Writ Petition (M/S) No.679 of 2013 Yashpal Singh and others v. Hukam Singh and others, a Coordinate Bench of this Court held that although the provisions of the Code are not applicable in the consolidation proceedings, as its application is only for limited purpose, yet the broad principles can always be applied. The Bench also observed that the court should adopt a procedural fairness. On the ground that no reasonable explanation was provided by the respondents to show why the documents could not be placed earlier, the order passed by the revisional authority permitting the respondents to place the documents as additional evidence, was set aside by the Court. The facts of the judgment are different from the facts of the present case and are therefore no help to the petitioner.
Let me now consider the judgments relied on by the learned counsel for the respondent.
(i) In State Bank of Hyderabad (supra), the question before the Hon'ble Supreme Court was as to whether the proviso appended to Order VI Rule 17 of the Code is applicable in the instant case. The Hon'ble Supreme Court held that the proviso appended to Order VI Rule 17 CPC was added by the Code of Civil Porcedure (Amendment) Act, 2002 which came into force w.e.f. 01.07.2002 and thus it is not applicable to the suit filed in the year 1998. It was further held that the High Court has failed to invoke Rule 17 as it then stood and committed illegality in relying upon the said proviso.
(ii) In B.K. Narayana Pillai (supra), Hon'ble Supreme Court has held that while deciding the prayer for amendment, the Court should not adopt a hyper technical approach for the simple reason that the technicalities of law should not be permitted to hamper the administration of justice between the parties. An effort should be made to avoid uncalled for multiplicity of litigation. The Court should also consider as to whether the amendment is necessary to adjudicate the dispute between the parties.
The controversy involved in the present case is almost similar to the case of State Bank of Hyderabad. Here also, the objections were filed in the year 1995. Thus, in view of said judgment, the proviso appended to Order VI Rule 17 shall not apply in the present case also. Only the Rule 17 will be applicable which says that 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.
In the case at hand, a perusal of the amendment application would reveal that by way of amendment the respondent seeks to clarify the claim in regard to 1970 will which was revoked on 21.03.1972 and again was made effective by will dated 16.02.1983. The respondent has taken a ground that due to inadvertence and typing error, amendments sought were left to be incorporated in the objections earlier. The said will dated 16.02.1983, on the basis of which the respondent sought the amendment, was filed in original before the Consolidation Officer, thus, it is not the case here that the respondent, by the proposed amendment, is taking a new plea. From the above, it is ample clear that the amendment sought by the respondent is explanatory in nature and is imperative for proper and effective adjudication of the case. Though the plea to amend the pleadings in the objections has been filed belatedly, after the commencement of trial, but it can be entertained in view of the fact that wide powers and unfettered discretion have been conferred on the Court under Order VI Rule 17 of the Code to allow amendment of the pleadings, if it is found that it is necessary for deciding the real controversy between the parties. Therefore, in my view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.
In Raj Kumar Bhatia vs. Subhash Chander Bhatia, (2018) 2 SC 87, the Hon'ble Apex Court has held that where trial court in the considered exercise of its jurisdiction under Order VI Rule 17 CPC has allowed amendment of written statement, interference with that order by High Court under Article 227 entering upon merits of the case sought to be set up by appellant-defendant in amendment, is impermissible. Paragraphs 7 and 12 of the said judgment are relevant, which are reproduced as under:-
"7. The High Court has held that the amendment sought in the written statement was not bona fide and was not necessary for determining the real question in controversy between the parties. The suit was instituted in 2001 and the written statement was filed in 2003. The High Court held that based on the facts which were known to the appellant in 2003, a belated attempt was made thirteen years later in 2016 to amend the written statement to introduce an averment on the existence of coparacenary/Hindu undivided property. On merits, the High Court held that it is a settled principle that after the enactment of the Hindu Succession Act, 1956, property which devolves on an individual from a paternal ancestor does not become HUF property but the inheritance is in the nature of self-acquired property unless an HUF exists at the time of the devolution. This view was based on the judgments of this Court in CWT v. Chander Sen and Yudhister v. Ashok Kumar. In the view of the High Court, the averments sought to be introduced by the appellant do not lead to a conclusion of the existence of coparcenary property. While accepting that in the course of considering an application for amendment, its merits and demerits should not be evaluated, the High Court nevertheless held that the amendment in the present case was untenable on merits.
This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company (2003) 3 SCC 524 , this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21-9-2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff."
Now, coming to the jurisdiction of this Court under Article 227 of The Constitution of India. The jurisdiction under Article 227 of Constitution of India is merely a superintendence jurisdiction unless there is miscarriage of justice or violation of law. Ordinarily, the Court should not interfere under Article 227 of the Constitution of India. In Radhey Shyam and another vs. Chhabi Nath and other, (2015) 5 SCC 423, Hon'ble Apex Court has held as under:-
"... Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution of India are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
In view of the foregoing discussion, this Court is of the view that the courts below have not committed any illegality or jurisdictional error in allowing the amendment application. No interference is, therefore, called for. Writ petition lacks merit and the same is hereby dismissed.
No order as to costs.