Insofar as the principles which govern the question of
granting or disallowing amendments under Order 6 Rule 17
C.P.C. (as it stood at the relevant time) are concerned,
these are also well settled. Order 6 Rule 17 C.P.C.
postulates amendment of pleadings at any stage of the
proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda
Shidgonda Patil & Ors. which still holds the field, it was held
that all amendments ought to be allowed which satisfy two
conditions: (a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the
real questions in controversy between the parties.
Amendments should be refused only where the other party
cannot be placed in the same position as if the pleading had
been originally correct, but the amendment would cause
him an injury which could not be compensated in costs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL APPLICATION NO.11751 OF 2013 IN
FIRST APPEAL NO.734 OF 2012
Kopargaon Sahakari Sakhar
Karkhana Limited,
Versus
7 Star Distilleries, Murtizapur Road,
CORAM : K.U. CHANDIWAL, J.
DATE : 10th January 2014
Citation;2014(5) ALLMR 342 Bom
Read original judgment here;click here
2. By this application, the appellant has urged for permitting
amendment to the plaint being R.C.S.No.3/2004 in terms of schedule of
amendment annexed as Annexure “C” and expected further consequential
order. The appellant has also sought leave to produce Deed of Assignment
dated 31.12.2012 including annexures thereto as additional evidence.
3. The appellant, as a plaintiff has questioned judgment and order
dated 28.3.2012 of the learned District Judge, Kopargaon dismissing
R.C.S.No.3/2004 filed by the appellant for infringement of copy right in its
label “Bhingari Santra”. The appellant approached this Court by Civil
Application No. 4450 of 2012 in First Appeal No.734 of 2012 and by order
dated 10.5.2013, this Court (Coram : S.V.Gangapurwala, J.) rejected the
request of the appellant for temporary injunction, however, the first appeal
was to be heard finally in the week commencing from 29.7.2013. In
between, feeling aggrieved by the aforesaid order rejecting the injunction,
the appellant approached Honourable Supreme Court and by its order
dated 26.8.2013 in Special Leave to Appeal (Civil) 25879/2013, Honourable
Supreme Court requested High Court to decide the appeal within a period
of six weeks from its order i.e. 26.8.2013, without granting any further
adjournment to any of the parties.
4. The nature of amendment, to which reference is given by learned
Senior Counsel appearing for appellant/plaintiff, will not change the
scenario or primarily will not cause prejudice to the contesting
respondents/defendants. The amendment sought by the appellant/plaintiff
is to bring the subsequent development on record, as the Deed of
Assignment has taken place on 31.12.2012, while the judgment and order
of the learned District Judge is dated 28.3.2012 and the appeal before this
Court is lodged on 25.4.2012. It appears, the Deed of Assignment dated
31.12.2012 could not be pointed to this Court when the matter was argued
on 10.5.2013, though its copy was annexed by the
respondents/defendants.
5. The Honourable Supreme Court in the three judges judgment, in
Pasupuleti Venkateswarlu Vs. The Motor & General Traders,
reported in (1975) 1 Supreme Court Cases 770, while dealing with
the aspect of amendment, particularly in Rent Control legislation, observed
in para 4 as under :
“4. We feel the submissions devoid of substance. First
about the jurisdiction and propriety vis-a-vis circumstances
which come into being subsequent to the commencement of
the proceedings. It is basic to our processual jurisprudence
that the right to relief must be judged to exist as on the date
a suitor institutes the legal proceeding. Equally clear is the
principle that procedure is the handmaid and not the
mistress of the judicial process. If a fact, arising after the lis
has come to court and has a fundamental impact on the
right to relief or the manner of moulding it, is brought
diligently to the notice of the tribunal, it cannot blink at it or
be blind to events which stultify or render inept the decretal
remedy. Equity justifies bending the rules of procedure,
where no specific provision or fairplay is violated, with a
view to promote substantial justice – subject, of course, to
the absence of other disentitling factors or just
circumstances. Nor can we contemplate any limitation on
this power to take note of updated facts to confine it to the
trial Court. If the litigation pends, the power exists, absent
other special circumstances repelling resort to that course in
law or justice. Rulings on this point are legion, even as
situations for applications of this equitable rule are myriad.
We affirm the proposition that for making the right or
remedy claimed by the party just and meaningful as also
legally and factually in accord with the current realities, the
Court can, and in many cases must, take cautious
cognisance of events and developments subsequent to the
institution of the proceeding provided the rules of fairness to
both sides are scrupulously obeyed. On both occasions the
High Court, in revision, correctly looked this view. The later
recovery of another accommodation by the landlord, during
the pendency of the case, has as the High Court twice
pointed out, a material bearing on the right to evict, in view
of the inhibition written into Section 10(3) (iii) itself. We are
not disposed to disturb this approach in law or finding of
fact.”
6. The Honourble Supreme Court in the five judges judgment in Civil
Appeal No.219 of 1953 (L.J.Leach and Co.Ltd., and another Vs.
Messrs. Jairdine Skinner and Co.) decided on 22.1.1957, reported in
AIR 1957 SC 358, in para 16 dealt with the legal position flowing from
Order VI Rule 17 and effect of Section 151 of the Code of Civil Procedure.
The Apex Court directed, what are the parameters to be applied while
entertaining the application for amendment.
7. The learned Senior Counsel for the appellant pointed that by virtue
of amendment, new cause of action is not asserted. No suit, if
contemplated would be barred; the amendment would not change the
nature of suit. What is sought to be brought on record is a continuity in
the transaction of the appellant with Shri Vishwanath Kale, who has
expired on 8.11.2006.
8. Mr Dixit, learned Senior Counsel read the text in Deed of Assignment
and says, it has retrospective effect from 1986-1987 or 1998, which would
eclipse or defeat rights of the defendants.
9. In reality, Deed of Assignment will have to be considered by Court, if
the amendment is allowed. It would be open for Court to observe to its
legal effect and enforceablity of such document. The defendants, in such
situation have a right to file additional written statement and raise
available defences including challenging assignment deed.
10. It cannot be said, at this stage, that the appellant desires to wipe
out effect of decree, as the decree itself is dismissal of appellant’s suit
which is questioned before this Court. If the order seeking amendment is
made, it will not cause any prejudice to the defendants, as indicated herein
above.
11. The legal position was again explained by the Honourable Supreme
Court in North Estern Railway Administration, Gorakhpur V.
Bhagwan Das (D) by L.Rs., reported in AIR 2008 SUPREME COURT
2139 (1). Paragraphs 12, 14, 15 thereof read as under :
12. Though the general rule is that ordinarily the
appellate court should not travel outside the record of the
lower court and additional evidence, whether oral or
documentary is not admitted but Section 107 C.P.C., which
carves out an exception to the general rule, enables an
appellate court to take additional evidence or to require
such evidence to be taken subject to such conditions and
limitations as may be prescribed. These conditions are
prescribed under Order 41 Rule 27 C.P.C. Nevertheless, the
additional evidence can be admitted only when the
circumstances as stipulated in the said rule are found to
exist. The circumstances under which additional evidence
can be adduced are :
(i) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, (clause (a) of sub rule (1)) or
(ii) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within the knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, (clause aa, inserted by Act 104 of 1976) or
(iii) the appellate court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause.
(clause (b) of sub rule (1)).
14. Again in K. Venkataramiah Vs. A. Seetharama Reddy
& Ors. a Constitution Bench of this Court while reiterating
the afore-noted observations in Parsotim's case (supra),
pointed out that the appellate court has the power to allow
additional evidence not only if it requires such evidence 'to
enable it to pronounce judgment' but also for 'any other
substantial cause'. There may well be cases where even
though the court finds that it is able to pronounce judgment
on the state of the record as it is, and so, it cannot strictly
say that it requires additional evidence 'to enable it to
pronounce judgment', it still considers that in the interest of
justice something which remains obscure should be filled up
so that it can pronounce its judgment in a more satisfactory
manner. Thus, the question whether looking into the
documents, sought to be filed as additional evidence, would
be necessary to pronounce judgment in a more satisfactory
manner, has to be considered by the Court at the time of
hearing of the appeal on merits.
15. Insofar as the principles which govern the question of
granting or disallowing amendments under Order 6 Rule 17
C.P.C. (as it stood at the relevant time) are concerned,
these are also well settled. Order 6 Rule 17 C.P.C.
postulates amendment of pleadings at any stage of the
proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda
Shidgonda Patil & Ors. which still holds the field, it was held
that all amendments ought to be allowed which satisfy two
conditions: (a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the
real questions in controversy between the parties.
Amendments should be refused only where the other party
cannot be placed in the same position as if the pleading had
been originally correct, but the amendment would cause
him an injury which could not be compensated in costs.
12. Taking conspectus of above situation, amendment to the plaint, as
sought by the appellant is allowed. The appellant to pay costs of Rs.
50,000/- (Rs.Fifty thousand) each to respondent Nos.1 and 2 within
fourteen days and necessary amendment to the plaint be carried within
fourteen days. Amendment can be effected in this Court, as the entire
record is before this Court. Its copy be served upon the respondents or
their Advocates. Defendants are at liberty to file additional written
statement.
13. Application allowed accordingly to the extent, as above.
( K.U. CHANDIWAL, J.)
Print Page
granting or disallowing amendments under Order 6 Rule 17
C.P.C. (as it stood at the relevant time) are concerned,
these are also well settled. Order 6 Rule 17 C.P.C.
postulates amendment of pleadings at any stage of the
proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda
Shidgonda Patil & Ors. which still holds the field, it was held
that all amendments ought to be allowed which satisfy two
conditions: (a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the
real questions in controversy between the parties.
Amendments should be refused only where the other party
cannot be placed in the same position as if the pleading had
been originally correct, but the amendment would cause
him an injury which could not be compensated in costs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL APPLICATION NO.11751 OF 2013 IN
FIRST APPEAL NO.734 OF 2012
Kopargaon Sahakari Sakhar
Karkhana Limited,
Versus
7 Star Distilleries, Murtizapur Road,
CORAM : K.U. CHANDIWAL, J.
DATE : 10th January 2014
Citation;2014(5) ALLMR 342 Bom
Read original judgment here;click here
2. By this application, the appellant has urged for permitting
amendment to the plaint being R.C.S.No.3/2004 in terms of schedule of
amendment annexed as Annexure “C” and expected further consequential
order. The appellant has also sought leave to produce Deed of Assignment
dated 31.12.2012 including annexures thereto as additional evidence.
3. The appellant, as a plaintiff has questioned judgment and order
dated 28.3.2012 of the learned District Judge, Kopargaon dismissing
R.C.S.No.3/2004 filed by the appellant for infringement of copy right in its
label “Bhingari Santra”. The appellant approached this Court by Civil
Application No. 4450 of 2012 in First Appeal No.734 of 2012 and by order
dated 10.5.2013, this Court (Coram : S.V.Gangapurwala, J.) rejected the
request of the appellant for temporary injunction, however, the first appeal
was to be heard finally in the week commencing from 29.7.2013. In
between, feeling aggrieved by the aforesaid order rejecting the injunction,
the appellant approached Honourable Supreme Court and by its order
dated 26.8.2013 in Special Leave to Appeal (Civil) 25879/2013, Honourable
Supreme Court requested High Court to decide the appeal within a period
of six weeks from its order i.e. 26.8.2013, without granting any further
adjournment to any of the parties.
4. The nature of amendment, to which reference is given by learned
Senior Counsel appearing for appellant/plaintiff, will not change the
scenario or primarily will not cause prejudice to the contesting
respondents/defendants. The amendment sought by the appellant/plaintiff
is to bring the subsequent development on record, as the Deed of
Assignment has taken place on 31.12.2012, while the judgment and order
of the learned District Judge is dated 28.3.2012 and the appeal before this
Court is lodged on 25.4.2012. It appears, the Deed of Assignment dated
31.12.2012 could not be pointed to this Court when the matter was argued
on 10.5.2013, though its copy was annexed by the
respondents/defendants.
5. The Honourable Supreme Court in the three judges judgment, in
Pasupuleti Venkateswarlu Vs. The Motor & General Traders,
reported in (1975) 1 Supreme Court Cases 770, while dealing with
the aspect of amendment, particularly in Rent Control legislation, observed
in para 4 as under :
“4. We feel the submissions devoid of substance. First
about the jurisdiction and propriety vis-a-vis circumstances
which come into being subsequent to the commencement of
the proceedings. It is basic to our processual jurisprudence
that the right to relief must be judged to exist as on the date
a suitor institutes the legal proceeding. Equally clear is the
principle that procedure is the handmaid and not the
mistress of the judicial process. If a fact, arising after the lis
has come to court and has a fundamental impact on the
right to relief or the manner of moulding it, is brought
diligently to the notice of the tribunal, it cannot blink at it or
be blind to events which stultify or render inept the decretal
remedy. Equity justifies bending the rules of procedure,
where no specific provision or fairplay is violated, with a
view to promote substantial justice – subject, of course, to
the absence of other disentitling factors or just
circumstances. Nor can we contemplate any limitation on
this power to take note of updated facts to confine it to the
trial Court. If the litigation pends, the power exists, absent
other special circumstances repelling resort to that course in
law or justice. Rulings on this point are legion, even as
situations for applications of this equitable rule are myriad.
We affirm the proposition that for making the right or
remedy claimed by the party just and meaningful as also
legally and factually in accord with the current realities, the
Court can, and in many cases must, take cautious
cognisance of events and developments subsequent to the
institution of the proceeding provided the rules of fairness to
both sides are scrupulously obeyed. On both occasions the
High Court, in revision, correctly looked this view. The later
recovery of another accommodation by the landlord, during
the pendency of the case, has as the High Court twice
pointed out, a material bearing on the right to evict, in view
of the inhibition written into Section 10(3) (iii) itself. We are
not disposed to disturb this approach in law or finding of
fact.”
6. The Honourble Supreme Court in the five judges judgment in Civil
Appeal No.219 of 1953 (L.J.Leach and Co.Ltd., and another Vs.
Messrs. Jairdine Skinner and Co.) decided on 22.1.1957, reported in
AIR 1957 SC 358, in para 16 dealt with the legal position flowing from
Order VI Rule 17 and effect of Section 151 of the Code of Civil Procedure.
The Apex Court directed, what are the parameters to be applied while
entertaining the application for amendment.
7. The learned Senior Counsel for the appellant pointed that by virtue
of amendment, new cause of action is not asserted. No suit, if
contemplated would be barred; the amendment would not change the
nature of suit. What is sought to be brought on record is a continuity in
the transaction of the appellant with Shri Vishwanath Kale, who has
expired on 8.11.2006.
8. Mr Dixit, learned Senior Counsel read the text in Deed of Assignment
and says, it has retrospective effect from 1986-1987 or 1998, which would
eclipse or defeat rights of the defendants.
9. In reality, Deed of Assignment will have to be considered by Court, if
the amendment is allowed. It would be open for Court to observe to its
legal effect and enforceablity of such document. The defendants, in such
situation have a right to file additional written statement and raise
available defences including challenging assignment deed.
10. It cannot be said, at this stage, that the appellant desires to wipe
out effect of decree, as the decree itself is dismissal of appellant’s suit
which is questioned before this Court. If the order seeking amendment is
made, it will not cause any prejudice to the defendants, as indicated herein
above.
11. The legal position was again explained by the Honourable Supreme
Court in North Estern Railway Administration, Gorakhpur V.
Bhagwan Das (D) by L.Rs., reported in AIR 2008 SUPREME COURT
2139 (1). Paragraphs 12, 14, 15 thereof read as under :
12. Though the general rule is that ordinarily the
appellate court should not travel outside the record of the
lower court and additional evidence, whether oral or
documentary is not admitted but Section 107 C.P.C., which
carves out an exception to the general rule, enables an
appellate court to take additional evidence or to require
such evidence to be taken subject to such conditions and
limitations as may be prescribed. These conditions are
prescribed under Order 41 Rule 27 C.P.C. Nevertheless, the
additional evidence can be admitted only when the
circumstances as stipulated in the said rule are found to
exist. The circumstances under which additional evidence
can be adduced are :
(i) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, (clause (a) of sub rule (1)) or
(ii) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within the knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, (clause aa, inserted by Act 104 of 1976) or
(iii) the appellate court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause.
(clause (b) of sub rule (1)).
14. Again in K. Venkataramiah Vs. A. Seetharama Reddy
& Ors. a Constitution Bench of this Court while reiterating
the afore-noted observations in Parsotim's case (supra),
pointed out that the appellate court has the power to allow
additional evidence not only if it requires such evidence 'to
enable it to pronounce judgment' but also for 'any other
substantial cause'. There may well be cases where even
though the court finds that it is able to pronounce judgment
on the state of the record as it is, and so, it cannot strictly
say that it requires additional evidence 'to enable it to
pronounce judgment', it still considers that in the interest of
justice something which remains obscure should be filled up
so that it can pronounce its judgment in a more satisfactory
manner. Thus, the question whether looking into the
documents, sought to be filed as additional evidence, would
be necessary to pronounce judgment in a more satisfactory
manner, has to be considered by the Court at the time of
hearing of the appeal on merits.
15. Insofar as the principles which govern the question of
granting or disallowing amendments under Order 6 Rule 17
C.P.C. (as it stood at the relevant time) are concerned,
these are also well settled. Order 6 Rule 17 C.P.C.
postulates amendment of pleadings at any stage of the
proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda
Shidgonda Patil & Ors. which still holds the field, it was held
that all amendments ought to be allowed which satisfy two
conditions: (a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the
real questions in controversy between the parties.
Amendments should be refused only where the other party
cannot be placed in the same position as if the pleading had
been originally correct, but the amendment would cause
him an injury which could not be compensated in costs.
12. Taking conspectus of above situation, amendment to the plaint, as
sought by the appellant is allowed. The appellant to pay costs of Rs.
50,000/- (Rs.Fifty thousand) each to respondent Nos.1 and 2 within
fourteen days and necessary amendment to the plaint be carried within
fourteen days. Amendment can be effected in this Court, as the entire
record is before this Court. Its copy be served upon the respondents or
their Advocates. Defendants are at liberty to file additional written
statement.
13. Application allowed accordingly to the extent, as above.
( K.U. CHANDIWAL, J.)
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