It cannot be disputed that ordinarily all
amendments ought to be allowed, which are essential for to
determine the real controversy in the suit. The precaution
for the Court must be to see that the proposed amendment
should not materially alter/vary/annul the substantive relief
claimed in the plaint and in other words, it should not be a
substitute for the original cause of action on which the
original suit has been filed. By means of proposed
amendment, a Court is to see whether any prejudice is likely
to be caused to the other side which cannot be compensated
by means of costs. It is to be borne in mind by the trial Court
that no litigant should suffer either on account of mistake
committed by a Court of Law on account of technicalities or
hypertechnicalities
of law. To put it in brief, an amendment
sought for by a litigant either as plaintiff or defendant ought
to be allowed by the Court to reduce/ minimize the litigation
between the parties to avoid multiplicity of proceedings.
Furthermore, an error or mistake, which if not fraudulent,
should not be the ground for rejecting the Application for
amendment of pleadings. If the amendment/amendments
sought for in the amendment application goes to the very
root of the matter or it concerns with the real issues in
controversy between the respective parties, the said
application/amendment, in the considered opinion of this
Court, ought to be allowed, notwithstanding the fact there
may be a negligence, omission, on the part of a particular
party applying for amendment in regard to the inordinate or
long delay that has occurred relating to the proposed
amendment. It is no doubt the discretion of the Court before
which the application comes for hearing when it deals with
an amendment application seeking amendment of plaint.
Order VI, Rule 17 of Civil Procedure Code gave wide
discretion to permit amendment even by condoning laches
or delay, to impose costs and permit amendment for just and
proper final decision in the suit. While allowing an
amendment application in respect of pleadings, a Court
cannot be expected to go into the merits and demerits of the
amendment. It must be borne in mind that, the rules of
procedure are only handmaid of Justice. A party/parties
should not be denied/refused the just relief, because of some
inadvertence, mistake or negligence or even the infraction of
rules of procedure committed by the parties to the litigation.
The substantive justice is to determine the real controversy
between the parties finally by a conclusive judgment and
order. It may be noted that the relief is based on the same
facts previously pleaded. The relief prayed in the suit in
substance appears to be based on the title claimed by the
plaintiffs and for possession and injunction. The delay to
prefer amendment or negligence may be penalized by
imposing reasonable cost, but not by the complete or blanket
refusal to amend the plaint because the real controversy in
the suit is required to be decided finally by the trial Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.291 OF 2012
Kamlesh s/o. Jagannath Suryavanshi,
// VERSUS //
Kalyan s/o. Shirshir Kumar Dutta,
Date of pronouncing the Judgment : 4.7.2013.
CORAM : A.P.BHANGALE, J.
Citation;2013(6) MHLJ193
Read original judgment here;click here
1. Rule returnable forthwith. Heard finally by the
consent of the learned Counsel for the respective parties.
2. The petitioners had instituted Regular Civil Suit
No.742 of 1996 in the Court of Civil Judge (Jr.Dn.),
Nagpur for the relief of declaration and permanent
mandatory injunction against the respondents in respect of
the suit property bearing plot no. 51, Khasra No.25/1,
26/2, 27/1 and 27/4, Mauza Gadga, Gokulpeth, Nagpur
during pendency of the suit. During pendency of the suit,
respondent nos. 1 to 3 sold the property to respondent no.4
without permission from the trial Court. Respondent no.4
was also impleaded as a necessary party in the proceedings
as the petitioner is interested in claiming the same reliefs
against the added defendant in the pending suit as title of
the defendants under the alleged Sale deed dated
28.03.1939 to the suit property is under challenge as
forged, illegal and bogus. Thereby the added defendant, as
a transferee pendente
lite, has no valid and legal title to
the suit property. The grievance of the petitioner is that the
trial Court had rejected the application for amendment in
the plaint by the order impugned dated 13.10.2011. The
trial Court erred to believe that the petitioners are claiming
any new relief against the added defendant.
3. Learned Counsel for the respondent in terms of
the law laid down by the Apex Court in the case of Shiv
Gopal Sah Alias Shiv Gopal Sahu reported in (2007) 14
SCC 120 submitted that unless satisfactory explanation is
given by the plaintiff, the amendment could not be allowed.
The learned counsel has drawn my attention to Para 12 of
the said Judgment, which is reproduced hereinunder :"
12. It is quite true that this Court in a number of
decisions, has allowed by way of an amendment even
the claims which were barred by time. However, for that
there had to be a valid basis made out in the
application and first of all there had to be bona fides on
the part of the plaintiffs and a reasonable explanation
for the delay. It is also true that the amendments can be
introduced at any stage of the suit, however, when by
that amendment an apparently time barred claim is
being introduced for the first time, there would have to
be some explanation and secondly, the plaintiff would
have to show his bona fides, particularly because such
claims by way of an amendment would have the effect
of defeating the rights created in the defendant by the
lapse of time. When we see the present facts, it is clear
that no such attempt is made by the plaintiffs anywhere
more particularly in the amendment application".
4. Learned Counsel for the petitioner relied upon
the observations in Pankaja and another vs. Yellappa
(Dead) by L.Rs. and Others, 2004 (4) Mah. L J . 488(SC).
The Apex Court observed thus :
“13. But the question for our consideration is
whether in cases where the delay has extinguished
the right of the party by virtue of expiry of the period
of the period of limitation prescribed in law, can the
court in the exercise of its discretion take away the
right accrued to another party by allowing such
belated amendments ?
14. The law in this regard is also quite clear and
consistent that there is no absolute rule that in every
case where a relief is barred because of limitation an
amendment should not be allowed. Discretion in
such cases depends on the facts and circumstances of
the case. The jurisdiction to allow or not allow an
amendment being discretionary the same will have
to be exercised in a judicious evaluation of the facts
and circumstances in which the amendment is
sought. If the granting of an amendment really
subserves the ultimate cause of justice and avoids
further litigation the same should be allowed. There
can be no straight jacket formula for allowing or
disallowing an amendment of pleadings. Each case
depends on the factual background of that case.”
5. It cannot be disputed that ordinarily all
amendments ought to be allowed, which are essential for to
determine the real controversy in the suit. The precaution
for the Court must be to see that the proposed amendment
should not materially alter/vary/annul the substantive relief
claimed in the plaint and in other words, it should not be a
substitute for the original cause of action on which the
original suit has been filed. By means of proposed
amendment, a Court is to see whether any prejudice is likely
to be caused to the other side which cannot be compensated
by means of costs. It is to be borne in mind by the trial Court
that no litigant should suffer either on account of mistake
committed by a Court of Law on account of technicalities or
hypertechnicalities
of law. To put it in brief, an amendment
sought for by a litigant either as plaintiff or defendant ought
to be allowed by the Court to reduce/ minimize the litigation
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Bombay High Court
7 wp291.12.odt
between the parties to avoid multiplicity of proceedings.
Furthermore, an error or mistake, which if not fraudulent,
should not be the ground for rejecting the Application for
amendment of pleadings. If the amendment/amendments
sought for in the amendment application goes to the very
root of the matter or it concerns with the real issues in
controversy between the respective parties, the said
application/amendment, in the considered opinion of this
Court, ought to be allowed, notwithstanding the fact there
may be a negligence, omission, on the part of a particular
party applying for amendment in regard to the inordinate or
long delay that has occurred relating to the proposed
amendment. It is no doubt the discretion of the Court before
which the application comes for hearing when it deals with
an amendment application seeking amendment of plaint.
Order VI, Rule 17 of Civil Procedure Code gave wide
discretion to permit amendment even by condoning laches
or delay, to impose costs and permit amendment for just and
proper final decision in the suit. While allowing an
amendment application in respect of pleadings, a Court
cannot be expected to go into the merits and demerits of the
amendment. It must be borne in mind that, the rules of
procedure are only handmaid of Justice. A party/parties
should not be denied/refused the just relief, because of some
inadvertence, mistake or negligence or even the infraction of
rules of procedure committed by the parties to the litigation.
The substantive justice is to determine the real controversy
between the parties finally by a conclusive judgment and
order. It may be noted that the relief is based on the same
facts previously pleaded. The relief prayed in the suit in
substance appears to be based on the title claimed by the
plaintiffs and for possession and injunction. The delay to
prefer amendment or negligence may be penalized by
imposing reasonable cost, but not by the complete or blanket
refusal to amend the plaint because the real controversy in
the suit is required to be decided finally by the trial Court.
6. In sequel to the above discussion, therefore, the
impugned order passed by the trial Court refusing the
amendment in the plaint is found to be harsh to the plaintiffs
and unsustainable in law. It is quashed and set aside. Upon
payment of Cost of Rs 1000/by
the petitionersPlaintiffs
payable to the respondentsdefendants,
the trial Court is
directed to permit the petitioners/plaintiffs to amend the
plaint within a period of two weeks from the date of receipt
of copy of this order. It is also open to the trial Court to grant
time to the respondents/defendants to file subsequent
pleadings under Order VIII, Rule 9 of the Civil Procedure
Code (Additional Written Statement, if they so
desire/advised) within a period of one week next. The trial
Court shall permit the parties to lead oral and documentary
evidence subsequent to amendment of pleadings and filing of
the additional Written Statement. Taking note of the fact that
the suit is of the year 1996, the trial Court, after providing
due opportunities to both parties, is directed to dispose of the
main suit bearing Regular Civil Suit No.742 of 1996 within a
period of six months from the date of receipt of copy of this
order and to report compliance to this Court without fail.
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Bombay High Court
10 wp291.12.odt
The parties are directed to extend their assistance and
cooperation
for the early completion of the main suit
proceedings in expeditious manner.
The rule is made absolute accordingly.
JUDGE
jaiswal
::: Downloaded on - 17/10/2014 13:42:24 :::
amendments ought to be allowed, which are essential for to
determine the real controversy in the suit. The precaution
for the Court must be to see that the proposed amendment
should not materially alter/vary/annul the substantive relief
claimed in the plaint and in other words, it should not be a
substitute for the original cause of action on which the
original suit has been filed. By means of proposed
amendment, a Court is to see whether any prejudice is likely
to be caused to the other side which cannot be compensated
by means of costs. It is to be borne in mind by the trial Court
that no litigant should suffer either on account of mistake
committed by a Court of Law on account of technicalities or
hypertechnicalities
of law. To put it in brief, an amendment
sought for by a litigant either as plaintiff or defendant ought
to be allowed by the Court to reduce/ minimize the litigation
between the parties to avoid multiplicity of proceedings.
Furthermore, an error or mistake, which if not fraudulent,
should not be the ground for rejecting the Application for
amendment of pleadings. If the amendment/amendments
sought for in the amendment application goes to the very
root of the matter or it concerns with the real issues in
controversy between the respective parties, the said
application/amendment, in the considered opinion of this
Court, ought to be allowed, notwithstanding the fact there
may be a negligence, omission, on the part of a particular
party applying for amendment in regard to the inordinate or
long delay that has occurred relating to the proposed
amendment. It is no doubt the discretion of the Court before
which the application comes for hearing when it deals with
an amendment application seeking amendment of plaint.
Order VI, Rule 17 of Civil Procedure Code gave wide
discretion to permit amendment even by condoning laches
or delay, to impose costs and permit amendment for just and
proper final decision in the suit. While allowing an
amendment application in respect of pleadings, a Court
cannot be expected to go into the merits and demerits of the
amendment. It must be borne in mind that, the rules of
procedure are only handmaid of Justice. A party/parties
should not be denied/refused the just relief, because of some
inadvertence, mistake or negligence or even the infraction of
rules of procedure committed by the parties to the litigation.
The substantive justice is to determine the real controversy
between the parties finally by a conclusive judgment and
order. It may be noted that the relief is based on the same
facts previously pleaded. The relief prayed in the suit in
substance appears to be based on the title claimed by the
plaintiffs and for possession and injunction. The delay to
prefer amendment or negligence may be penalized by
imposing reasonable cost, but not by the complete or blanket
refusal to amend the plaint because the real controversy in
the suit is required to be decided finally by the trial Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.291 OF 2012
Kamlesh s/o. Jagannath Suryavanshi,
// VERSUS //
Kalyan s/o. Shirshir Kumar Dutta,
Date of pronouncing the Judgment : 4.7.2013.
CORAM : A.P.BHANGALE, J.
Citation;2013(6) MHLJ193
Read original judgment here;click here
1. Rule returnable forthwith. Heard finally by the
consent of the learned Counsel for the respective parties.
2. The petitioners had instituted Regular Civil Suit
No.742 of 1996 in the Court of Civil Judge (Jr.Dn.),
Nagpur for the relief of declaration and permanent
mandatory injunction against the respondents in respect of
the suit property bearing plot no. 51, Khasra No.25/1,
26/2, 27/1 and 27/4, Mauza Gadga, Gokulpeth, Nagpur
during pendency of the suit. During pendency of the suit,
respondent nos. 1 to 3 sold the property to respondent no.4
without permission from the trial Court. Respondent no.4
was also impleaded as a necessary party in the proceedings
as the petitioner is interested in claiming the same reliefs
against the added defendant in the pending suit as title of
the defendants under the alleged Sale deed dated
28.03.1939 to the suit property is under challenge as
forged, illegal and bogus. Thereby the added defendant, as
a transferee pendente
lite, has no valid and legal title to
the suit property. The grievance of the petitioner is that the
trial Court had rejected the application for amendment in
the plaint by the order impugned dated 13.10.2011. The
trial Court erred to believe that the petitioners are claiming
any new relief against the added defendant.
3. Learned Counsel for the respondent in terms of
the law laid down by the Apex Court in the case of Shiv
Gopal Sah Alias Shiv Gopal Sahu reported in (2007) 14
SCC 120 submitted that unless satisfactory explanation is
given by the plaintiff, the amendment could not be allowed.
The learned counsel has drawn my attention to Para 12 of
the said Judgment, which is reproduced hereinunder :"
12. It is quite true that this Court in a number of
decisions, has allowed by way of an amendment even
the claims which were barred by time. However, for that
there had to be a valid basis made out in the
application and first of all there had to be bona fides on
the part of the plaintiffs and a reasonable explanation
for the delay. It is also true that the amendments can be
introduced at any stage of the suit, however, when by
that amendment an apparently time barred claim is
being introduced for the first time, there would have to
be some explanation and secondly, the plaintiff would
have to show his bona fides, particularly because such
claims by way of an amendment would have the effect
of defeating the rights created in the defendant by the
lapse of time. When we see the present facts, it is clear
that no such attempt is made by the plaintiffs anywhere
more particularly in the amendment application".
4. Learned Counsel for the petitioner relied upon
the observations in Pankaja and another vs. Yellappa
(Dead) by L.Rs. and Others, 2004 (4) Mah. L J . 488(SC).
The Apex Court observed thus :
“13. But the question for our consideration is
whether in cases where the delay has extinguished
the right of the party by virtue of expiry of the period
of the period of limitation prescribed in law, can the
court in the exercise of its discretion take away the
right accrued to another party by allowing such
belated amendments ?
14. The law in this regard is also quite clear and
consistent that there is no absolute rule that in every
case where a relief is barred because of limitation an
amendment should not be allowed. Discretion in
such cases depends on the facts and circumstances of
the case. The jurisdiction to allow or not allow an
amendment being discretionary the same will have
to be exercised in a judicious evaluation of the facts
and circumstances in which the amendment is
sought. If the granting of an amendment really
subserves the ultimate cause of justice and avoids
further litigation the same should be allowed. There
can be no straight jacket formula for allowing or
disallowing an amendment of pleadings. Each case
depends on the factual background of that case.”
5. It cannot be disputed that ordinarily all
amendments ought to be allowed, which are essential for to
determine the real controversy in the suit. The precaution
for the Court must be to see that the proposed amendment
should not materially alter/vary/annul the substantive relief
claimed in the plaint and in other words, it should not be a
substitute for the original cause of action on which the
original suit has been filed. By means of proposed
amendment, a Court is to see whether any prejudice is likely
to be caused to the other side which cannot be compensated
by means of costs. It is to be borne in mind by the trial Court
that no litigant should suffer either on account of mistake
committed by a Court of Law on account of technicalities or
hypertechnicalities
of law. To put it in brief, an amendment
sought for by a litigant either as plaintiff or defendant ought
to be allowed by the Court to reduce/ minimize the litigation
::: Downloaded on - 17/10/2014 13:42:24 :::
Bombay High Court
7 wp291.12.odt
between the parties to avoid multiplicity of proceedings.
Furthermore, an error or mistake, which if not fraudulent,
should not be the ground for rejecting the Application for
amendment of pleadings. If the amendment/amendments
sought for in the amendment application goes to the very
root of the matter or it concerns with the real issues in
controversy between the respective parties, the said
application/amendment, in the considered opinion of this
Court, ought to be allowed, notwithstanding the fact there
may be a negligence, omission, on the part of a particular
party applying for amendment in regard to the inordinate or
long delay that has occurred relating to the proposed
amendment. It is no doubt the discretion of the Court before
which the application comes for hearing when it deals with
an amendment application seeking amendment of plaint.
Order VI, Rule 17 of Civil Procedure Code gave wide
discretion to permit amendment even by condoning laches
or delay, to impose costs and permit amendment for just and
proper final decision in the suit. While allowing an
amendment application in respect of pleadings, a Court
cannot be expected to go into the merits and demerits of the
amendment. It must be borne in mind that, the rules of
procedure are only handmaid of Justice. A party/parties
should not be denied/refused the just relief, because of some
inadvertence, mistake or negligence or even the infraction of
rules of procedure committed by the parties to the litigation.
The substantive justice is to determine the real controversy
between the parties finally by a conclusive judgment and
order. It may be noted that the relief is based on the same
facts previously pleaded. The relief prayed in the suit in
substance appears to be based on the title claimed by the
plaintiffs and for possession and injunction. The delay to
prefer amendment or negligence may be penalized by
imposing reasonable cost, but not by the complete or blanket
refusal to amend the plaint because the real controversy in
the suit is required to be decided finally by the trial Court.
6. In sequel to the above discussion, therefore, the
impugned order passed by the trial Court refusing the
amendment in the plaint is found to be harsh to the plaintiffs
and unsustainable in law. It is quashed and set aside. Upon
payment of Cost of Rs 1000/by
the petitionersPlaintiffs
payable to the respondentsdefendants,
the trial Court is
directed to permit the petitioners/plaintiffs to amend the
plaint within a period of two weeks from the date of receipt
of copy of this order. It is also open to the trial Court to grant
time to the respondents/defendants to file subsequent
pleadings under Order VIII, Rule 9 of the Civil Procedure
Code (Additional Written Statement, if they so
desire/advised) within a period of one week next. The trial
Court shall permit the parties to lead oral and documentary
evidence subsequent to amendment of pleadings and filing of
the additional Written Statement. Taking note of the fact that
the suit is of the year 1996, the trial Court, after providing
due opportunities to both parties, is directed to dispose of the
main suit bearing Regular Civil Suit No.742 of 1996 within a
period of six months from the date of receipt of copy of this
order and to report compliance to this Court without fail.
::: Downloaded on - 17/10/2014 13:42:24 :::
Bombay High Court
10 wp291.12.odt
The parties are directed to extend their assistance and
cooperation
for the early completion of the main suit
proceedings in expeditious manner.
The rule is made absolute accordingly.
JUDGE
jaiswal
::: Downloaded on - 17/10/2014 13:42:24 :::
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