Upendra Singh & Anr. vs Prem Kishore & Ors

Earlier also, no one appeared for the respondents on 30/07/2018 and looking to the fact that proceedings in the suit have been stayed by order dated

14/09/2012, the matter was listed for hearing on 02/08/2018. Even on that date, none appeared for the respondents. Today, when the matter was taken

up, no one appeared for the respondents.

Looking to the fact that the interim order continues since 14/09/2012 and trial has been held up, the matter is heard finally.

In this petition under Article 227 of the Constitution of India, petitioners/defendants have called in question the order dated 22/08/2012 (Annexure P-1)

passed in Civil Suit No.50A/2009 by the First Civil Judge, Class-II, Gohad, District Bhind, whereby the application under Order VI Rule 17 of Code of

Civil Procedure seeking amendment in the written statement has been rejected.

The brief facts necessary for disposal of the present case are that the land survey No. 462 area 2.20 hectares, survey No. 490 area 0.50 hectares,

total area 2.72 hectares is situated in village Moja Rai Ki Pali in which plaintiff is having 1/4 share, similarly survey No. 492 area 1.40 hectares, survey

No. 561 area 0.40 hectares and survey No. 690 area 0.43 hectares, total area 2.223 hectares is also situated in village Moja Rai Ki Pali Tehsil Gohad

District Bhind in which plaintiff is having 1/16 share of the land. The disputed land was belonging to Late Imarti Bai wife of Late Bachchulal, mother

of the plaintiff. After the death of Imarti Bai, plaintiff being daughter became the owner of the land. The defendant No.1 - Dhanto Bai (Respondent

No.2 herein) is the wife of Late Shri Ramgopal, who was plaintiff's brother. After the death of the Imarti Bai, plaintiff became the owner into two

Khata having share 1/4 and 1/16 and defendant No.1 - Dhanto Bai became the owner of 1/4 and 1/16 share respectively.

The defendant No.1 - Dhanto Bai executed a registered sale deed dated 29/05/2009 in favour of the defendants No.2 and 3 Upendra Singh and

Ravindra respectively showing 1/2 share in first Khata and 1/8 share in second Khata, therefore, the plaintiff was constrained to file this suit.

The petitioners/defendants filed written statement stating that in survey No.462 and 490 total area 3.70 hectares, Dhanto Bai is having 1/2 share and in

survey Nos.492, 561 and 690 total area 2.23, Dhanto Bai is having 1/8 share, therefore, defendant No.1/respondent No. 2 Dhanto Bai has rightly

executed registered sale deed dated 29/05/2009 in favour of the plaintiffs/defendants. As per the sale deed, petitioners are cultivating the land and

plaintiff has no right and title in the land purchased by the petitioners/defendants.

During the pendency of the suit and after filing of written statement, information was taken from the revenue records and came to know that the

property, i.e., disputed land was recorded in the name of Ramgopal as Pakka Krishak at the time of Jamindari abolition in Samvat 2008 having share

1/2 and 1/8 respectively. Moreover, old survey numbers were changed and substituted by the new numbers. Due to this, the petitioner moved an

amendment application under Order VI Rule 17 CPC for incorporating new survey numbers so that disputed land in question can be corrected from

old survey numbers and that Imarti Bai has never been recorded in the revenue records and, therefore, respondent/plaintiff No.1 has no right and title

in the disputed land. Reply was filed to the said amendment application. Learned trial Court, while rejecting the said application, held that the

amendment is not based on subsequent event and the plaintiff's evidence has been closed and amendment is not necessary for just and proper decision

of the case. Petitioners also filed chart stating new survey numbers and old numbers for the convenience of the trial Court, which was not considered

by the trial Court. Being aggrieved by this, the petitioners had no alternative but to approach this Court by filing of this writ petition.

Learned counsel for the petitioners submitted that the proposed amendment in the written statement is necessary for just and proper decision of the

case. The trial Court ought to have adopted a liberal approach and while rejecting the application, it had committed error of law. The evidence of the

defendants has not yet been started. The said amendment is in the interest of the defendants and if the amendment is allowed, the new survey

numbers would be incorporated.

The respondents had contested the application by filing the reply before the trial Court, in which it is stated that the present amendment is afterthought.

In fact, the petitioners/defendants had knowledge at the time of filing of the written statement. Nothing new has been mentioned in the amendment

application.

Heard the learned counsel for the parties.

The Apex Court in the case of Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others reported in (2007) 5 SCC 602, has held as

under:-

“From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the

proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real

question in controversy between the parties. 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.

A prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that

amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim applies to amendments to

plaint. It has no counterpart in the principles relating to amendment of the written statement. In a case of amendment of a written statement the

Courts would be more liberal in allowing the application than that of a plaint as the question of prejudice would be far less in the former than in the

latter. Moreover, in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to

hamper the Courts in the administration of justice between the parties. Hence, addition of a new ground of defence or substituting or altering a

defence or taking inconsistent pleas in the written statement can be allowed as long as the amended pleadings do not result in causing grave and

irretrievable prejudice to the plaintiff or displacing him completely. Nor by seeking amendment to the written statement would it be open to a party to

wriggle out of an admission as admission is a material piece of evidence which would be in favour of a person who would be entitled to take

advantage of that admission. However, the admission can be explained and it would be permissible to add a rider and/or proviso thereto while keeping

the admission intact.â€​

The Apex Court in the case of Revajeetu Builders and Developers Vs. Narayanswamy and Sons and others reported in (2009) 10 SCC 84, after

examining the entire previous case laws and subject has culled out the following principles in Para 63 of the judgment, which reads 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 bona fide 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.â€​

These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only

illustrative and not exhaustive.

The aforesaid principles have been followed by the Apex Court in the case of Chakreshwari Construction Pvt. Ltd. Vs. Manohar Lal reported in 2017

(3) MPLJ 717, in para 14 also, which is 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 bona fide 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.â€​

These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only

illustrative and not exhaustive.

On critical analysis of the aforesaid principles of law laid down by the Apex Court and looking to the facts and circumstances of the case at hand

where amendment in the written statement is sought, I am of the considered opinion that the amendment proposed by the appellant deserves to be

allowed firstly for the reason; the amendment proposed would not change the nature of the case originally set up by the plaintiff in the suit; secondly,

the amendment would not introduce any fresh cause of action; thirdly, the amendment would be in the interest of both the parties as correct new

survey numbers could be mentioned while deciding the suit and; fourthly, the facts proposed in the amendment not being in the personal knowledge of

the petitioners/defendants as the certified copy of the same was obtained recently after filing of the written statement. The impugned order dated

22/08/2012 (Annexure P/1) is set aside. The writ petition stands allowed. As a consequence, interim order granted by this Court on 14/09/2012 stands

vacated. The application under Order VI Rule 17 is allowed. Necessary amendment be incorporated in the written statement within the period

prescribed by the trial Court.

It is made clear that looking to the fact that the suit is of the year 2009, learned trial Court is directed to conclude the proceedings in accordance with

law as expeditiously as possible.

Let a copy of this order be sent to the trial Court for necessary action.