Vansraj and Others vs Subhagi and Others

Sudhir Agarwal and Anjani Kumar Mishra, JJ.—Heard Sri H.D. Verma, learned Counsel for the appellants and perused the record. This appeal under section 19 of Family Court Act, 1984 has arisen from the judgment and decree dated 24.3.2015/31.3.2015 passed by Principal Judge, Family Court, Basti rejecting amendment application filed by defendants-appellants.

It is evident from record that suit is pending since 1992. Evidence was already over and it is at the stage of hearing. Moreover, from the amendment application filed by defendants- appellants, it appears that, they are endeavoring to withdraw their admission. Such amendment, at this stage, ought not to have been allowed and has rightly been rejected by Court below.

Even otherwise, we find that amendment sought to be made at this stage does not satisfy the requirement wherein such amendment ought to have been allowed.

Time and again, Apex Court has given a very wide scope of amendment of pleadings but there has been an intervention of Legislature with an object for preventing dilatory tactics to delay disposal of cases and in that view of the matter, first intervention came by virtue of Amendment Act, 1999 whereby in Order VI, Rules 17 and 18 were omitted. However, this complete omission did not found favour with the litigating people and realizing great hardship, Legislature again intervened vide Amendment Act, 2002 whereby Rule 17 was incorporated but a restriction in the shape of a proviso was added therein. Order VI, Rule 17 came to be inserted by Amendment Act, 2002 reads as under:

"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 bare perusal of above Rule 17 would show that an amendment is permissible by the Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining real question in controversy between the parties. It gives very wide power to the Court for allowing amendment but the proviso added therein restricts such wide power simultaneously by observing that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite due diligence, party could not have raised the matter before the commencement of trial. Now there is an embargo on an application for amendment to be allowed once the trial has commenced. The embargo is complete. The only scope, thereafter is that the Court comes to the conclusion that despite due diligence such matter could not have been raised by the parties concerned before the commencement of trial. Therefore, the party seeking amendment, after commencement of trial, is bound to first plead and then prove that the amendment it has sought could not have been pleaded by it before commencement of trial despite its due diligence. After the trial has commenced, an amendment cannot be sought and allowed as a matter of course unless conditions of due diligence is found to have existed therein since it is prohibited by proviso to Order VI, Rule 17, C.P.C.

The Apex Court in Kailash Vs. Nanhku and Others, AIR 2005 SC 2441 : (2005) 3 CTC 355 : (2005) 4 JT 204 : (2005) 141 PLR 558 : (2005) 4 SCC 480 : (2005) 3 SCR 289 , has held that a trial is deemed to have commenced when the issue are settled and the case is set down for recording of evidence. This view has been followed in Baldev Singh and Others, etc. Vs. Manohar Singh and Another, etc., (2006) 6 SCC 498 , and Ajendraprasadji N. Pande and Another Vs. Swami Keshavprakeshdasji N. and Others, AIR 2007 SC 806 : (2007) 1 JT 579 : (2006) 13 SCALE 525 : (2006) 10 SCR 477 Supp . The Apex Court has also held in Ajendraprasadji N. Pande (supra) that Order VI, Rule 17, C.P.C. as amended by Amendment Act, 2002 does not permit an amendment once the Trial has commenced unless despite due diligence, matter could not be raised before the commencement of trial. The Court held that provision is mandatory and precludes a party to seek amendment of his pleadings once the trial has commenced unless the requirement of proviso itself is satisfied. In taking this view, the Apex Court also referred to and relied on its earlier decision in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), AIR 2005 SC 3353 : (2005) 3 ARBLR 81 : (2005) 6 JT 486 : (2005) 6 SCC 344 : (2005) 1 SCR 929 Supp : (2005) AIRSCW 3827 : (2005) 5 Supreme 236 .

To the same extent, is the view taken by this Court in Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, AIR 2008 SC 2303 : (2008) 5 CTC 253 : (2008) 7 SCALE 471 : (2008) 14 SCC 364 : (2008) AIRSCW 4007 : (2008) 4 Supreme 435 and Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, (2009) 13 JT 366 : (2009) 10 SCC 84 : (2009) 15 SCR 103 : (2009) 10 UJ 4850 This Court has also followed the above exposition of law by referring to Revajeetu Builders and Developers (supra) in Sri Krishan Mittal v. Upper District Judge C.N. 10 Bijnor and others. Writ A No. 46709 of 2012, decided on 13.9.2012.

Revajeetu Builders and Developers (supra) is a decision in which various authorities on the question of amendment have been considered by Apex Court and in para 67 it has laid down certain illustrative factors which may be necessary to be examined while allowing or rejecting application for amendment. It would be useful to reproduce para 67 of the judgment as under:

"67. On critically analysing 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."

It is true that these factors, as enumerated above, are not exhaustive but illustrative yet it cannot be lost sight that a decision on an application seeking amendment is serious judicial exercise and it should not be undertaken in a casual manner.

Before this Court, learned Counsel for the appellant could not point out any illegality or material irregularity in the impugned order so as to warrant interference of this Court. The appeal lacks merit. Dismissed.