Once it is not in dispute that the facts which are sought to be introduced by way of amendment to the pleadings are relating to the events which have occurred after initiation of the proceedings and those facts are in relation to the subject matter of the dispute between the parties, and necessary to decide the real question in controversy, merely because there is delay in filing the application, the same cannot be a justification to refuse the party to amend the pleadings, unless allowing such amendment would result in taking away of any right which might have already accrued to the opposite party.
IN THE HIGH COURT OF BOMBAY
Civil Revision Appln. No. 668 of 2002
Decided On: 06.06.2002
Krishnaji Shankar Moghe Vs. Sitaram Gangadhar Shende
Hon'ble Judges/Coram:
R.M.S. Khandeparkar, J.
Citation: MANU/MH/0591/2002,2002(4) ALLMR 393.
2. The petitioner challenges the order dated 31st January, 2002 passed by the III Additional District Judge, Pune in Civil Appeal No. 412 of 2001. By the impugned order, the lower Appellate Court has dismissed the application filed by the petitioner for amendment of his original application for eviction of the respondent from the suit premises. The dismissal has been on the ground that by the proposed amendment, the petitioner is trying to produce further evidence which was not brought on record by the petitioner when he had opportunity to produce the same.
3. The learned Advocate for the petitioner while assailing the impugned order submitted that the petitioner by an application under Order 6, Rule 17 of the Civil Procedure Code has proposed to amend the original application for eviction by bringing on record certain events which had occurred subsequent to the filing of the proceedings as they are material for the just decision in the matter in relation to the dispute between the parties. On the other hand, the learned Advocate for the respondent submitted that there is inordinate delay in filing the application for amendment of the pleadings and in spite of the fact that at the time of examination of his son before the trial Court, the petitioner had ample opportunity to bring the said facts on record, yet the same are sought to be Civil Revision Appln. No. 668 of 2002 decided on 6-6-2002. (Bombay) brought on record only after disposal of the proceedings by the trial Court and when the matter is pending before the lower Appellate Court and being so, no fault can be found with the impugned order dismissing the application for amendment filed by the petitioner.
4. Bare reading of the application for amendment discloses that the petitioner seeks to bring on record certain facts which have occurred subsequent to the filing of the proceedings. It should not be forgotten that when subsequent events of fact or law which have a material bearing upon the entitlement to the relief to the parties or on the aspect of need for moulding of the relief, the Court is not precluded from taking a cautious cognizance of such subsequent changes of fact and law and to mould relief, as has been ruled by the Apex Court in Ramesh Kumar v. Keshav Rao reported in MANU/SC/0133/1992 : AIR1992SC700 .
5. In Lekh Raj v. Muni Lal reported in AIR 2001 SC 996 it was held that in case subsequent event having bearing on the issues or relief to be granted in the suit, and any party seek to bring the same on record, the Court could not shut its door.
6. The facts which are sought to be brought on record by way of amendment of the pleadings are in relation to the claim for the personal occupation of the premises by the Petitioner and his family. Certainly, the dispute between the parties relates to claim of the petitioner regarding the necessity of the premises for the personal occupation of the petitioner and his family members. In other words, the proposed amendment is in relation to the subject matter of the litigation between the parties and the facts sought to introduce by way of amendment have occurred subsequent to the institution of the proceedings. It is well settled that a party to the Civil Proceedings if desirous of taking advantage of the events which have occurred subsequent to the filing of the proceedings, then the party is not forbidden from doing so, provided that the party has to bring on record those facts by way of amendment of the pleadings and thereafter establish the same by leading necessary evidence in support of such pleadings. But, in the absence of such facts being incorporated in the pleadings, the party cannot derive any benefit from such facts nor any evidence in that regard can be produced on record or looked into. This position in law is well settled in view of the decision by the Apex Court in Om Prakash Gupta v. Rambir B. Goyal reported in AIR 2002 SCW 278. It has been held that the party relying on the subsequent event, which consists of facts beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6, Rule 17 of the Civil Procedure Code. Apex Court has referred to two earlier decisions relevant to point in issue one being in Trojan and Co. v. R.M.N.N. Nagappa Chettiar reported in MANU/SC/0005/1953 : [1953]4SCR789 . It was held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings, the Court would not be entitled to modify or alter the relief. The second one is in the matter of Smt. Mahant Govind Rao v. Sita Ram Kesho and Ors. reported in (1898) 25 Indian App 195 wherein it was held that as a rule, relief not founded on the pleadings should not be granted.
7. Merely because a party to the proceedings will have to lead evidence consequent to the amendment of the pleadings, that cannot be a justification for refusal of the application for amendment of the pleadings. Once it is not in dispute that the facts which are sought to be introduced by way of amendment to the pleadings are relating to the events which have occurred after initiation of the proceedings and those facts are in relation to the subject matter of the dispute between the parties, and necessary to decide the real question in controversy, merely because there is delay in filing the application, the same cannot be a justification to refuse the party to amend the pleadings, unless allowing such amendment would result in taking away of any right which might have already accrued to the opposite party. Perusal of the proposed amendment nowhere discloses that allowing the petitioner to amend the pleadings as prayed for would in any manner result in taking away of any right of the Respondents. In fact the proposed amendment is necessary to decide real question in controversy.
8. The petitioner is also justified in placing reliance upon the decision of learned single Judge of Aurangabad Bench of this High Court in Gangaram Motiram Vyas v. Kashinath Onkar Mandore reported in 2000 Bom. R.C. 54 The observations therein squarely apply to the case in hand.
9. In the result, therefore, the petition succeeds. The impugned order is hereby set aside and the application filed by the petitioner for amendment of the pleadings is allowed. The amendment to be carried out by the petitioner within 15 days from the receipt of the writ of this Court by the lower Appellate Court. Needless to say that pursuant to the amendment to the original application, the respondent would be entitled to file additional written statement in respect of the amended pleadings and the parties would be entitled to lead evidence in relation to the facts introduced by way of amendment. The lower Appellate Court to pass an appropriate order in that regard. Rule made absolute in above terms with no order as to costs.
Parties to act on a copy duly authenticated by Sheristedar of this Court.
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