HIGH COURT OF MADHYA PRADESH : JABALPUR W.P. No.4461/2012 [ENTITY] -Versus- [ENTITY] and others CORAM : Hon'ble Shri Justice [ENTITY] Shri [ENTITY], Senior Advocate along with Shri [ENTITY], Advocate for the petitioner. None for the respondent No.1, though served. Shri [ENTITY], Advocate for the respondents No.2 & 3. ORDER
(27.04.2017) In this writ petition preferred under [SECTION] of the [ACT], the petitioner has challenged the legal propriety of the order dated 7-02-2012 passed in [CASE NUMBER] by the learned District Judge, Jabalpur whereby an application filed by the petitioner under [SECTION] read with [SECTION] of the [ACT] [for brevity `the [ACT]'] seeking amendment has been rejected.
2. The factual assertions as would unveil, are that the petitioner filed a [CASE NUMBER] on 01-6-2009 against the respondent No.1 for declaration that the respondent No.1 should not dispossess the petitioner from the disputed property and also for permanent injunction that the respondent No.1 should not transfer the disputed property to anyone-else nor damage the property in any way. The respondent No.1 also filed a [CASE NUMBER] on 25-6-2009 for permanent injunction and mesne profit against the petitioner. Both the suits were ordered to be consolidated for analogous hearing.
3. The petitioner-plaintiff has pleaded that he is the brother of the respondent No.1 and was residing peacefully along with his family over a part of the disputed property - bearing House No.1411 (new)/796(old), Napier Town, Dayanand Saraswati Ward, Dr. Barad Road, Jabalpur admeasuring 3043.2 sq.ft. since 1966. As the respondent No.1 is not having her own family, therefore, she was living with the petitioner's family in the disputed property and the petitioner being the real brother was taking care of the respondent No.1. It is stated that the respondent No.1 had expressed her desire that since she is not having any family of her own, therefore, she proposed to transfer the disputed property to the petitioner and in the remaining portion she will make a Trust in the memory of her father from the consideration of the disputed property agreed to be sold to the petitioner.
It is pleaded in the plaint that after some time the respondent No.1 started creating troubles and endeavoured to dispossess the petitioner from the disputed property with the help of antisocial elements, who tried to dispossess the petitioner from the disputed property and had damaged the property for which the petitioner had lodged a police report for providing security to him and his family. In this factual backdrop the petitioner filed a civil suit for declaration and grant of injunction, as have been stated in the preceding paras.
4. During the pendency of the civil suit the respondent No.1 has sold the suit property through a registered sale-deed, dated 3-09-2010 to the respondents No.2 and 3 which was registered on 04-10-2010. It is pertinent to mention here that initially the petitioner had prayed for a relief of declaration and thereafter for grant of injunction by way of an amendment which was allowed on 04-10-2010 that the respondent No.1 had no title to sell the disputed property and, therefore, she should be restrained from transferring the property in question. The same was added by subsequent amendment which was allowed on 4-10-2010. After execution of the sale-deed another application was filed seeking declaration that the sale-deed, dated 30-9-2010 registered on 04-10-2010 be declared null and void and not binding on the petitioner. It was further pleaded that the sale-deed would not confer any right in favour of the defendants/respondents No.2 and 3 and permanent injunction against them. After filing of the suit on 25-06-2009 the petitioner had already filed two applications for amendment which were considered and allowed.
5. Thereafter, the petitioner filed present application for amendment seeking an amendment in respect of the relief for specific performance, for amendment as paras 7 and 9 in the pleadings and in the title regarding valuation of the appeal for specific performance of the contract and also seeking relief that the defendant No.1 be directed to execute the sale deed regarding the suit property in favour of the petitioner and to get it registered in the office of the Sub-Registrar, Jabalpur. However, by the impugned order the trial Court rejected the application.
6. Shri [ENTITY], learned senior counsel appearing for the petitioner submits that the impugned order rejecting the application for amendment is illegal and contrary to the law governing the field of consideration of amendment in the pleadings. It is submitted that by the impugned order, the trial Court allowed the I.A. No.11 for taking documents on record, subject to payment of cost of Rs.150/-, but dismissed the application - I.A. No.10 for amendment in the suit. It is canvassed that once documents have been taken on record, the Court below ought to have allowed the application for amendment in the pleadings, as the document without pleading would be inane and feckless. He further submitted that the trial Court erred in dismissing the application for amendment on the ground of delay and failed to consider that the rejection of the application would result into multiplicity of litigation as the proposed amendment was based on subsequent developments.
7. It is also urged that the status of the present petitioner in the suit property is of a licensee which is undisputed and in that capacity with the consent of the respondent No.1 he had carried out the construction work of a permanent nature and has incurred expenses in the execution of the said work and, therefore, he is entitled for protection under [SECTION] of the [ACT] hence, the trial Court ought to have allowed the application for amendment.
8. To buttress his submission the learned senior counsel referred the judgments rendered by the Apex Court in the cases of [PRECEDENT]; [ENTITY] vs. Ayyakannu and another, (2002) 7 SCC 559;
[PRECEDENT] ; [ENTITY], HUF vs. Sahara India and others, 2008 (4) MPLJ 459 (SC).
9. Per contra, learned counsel appearing for the respondents submitted that there is no illegality or perversity of approach by the learned trial Court in the impugned order, rejecting the application for amendment. He further submitted that the petitioner had earlier filed three amendment applications prior to the present one and there was no whisper of specific relief in pleading and relief for specific performance of contract. On previous occasion, the relief for injunction against respondent No.1 from alienation and thereafter challenge to sale-deed executed by the respondent No.1 in their favour was incorporated but there is no explanation why the petitioner could not seek amendment in regard to specific performance of contract. He further submitted that there is no concluded contract in the matter. The document, dated 4-01- 2006, which is a letter written by the respondent No.1 was mere a conditional offer by the respondent No.1 and there is no pleading either in the plaint or in the application for proposed amendment that the conditions enumerated in the letter/offer were ever complied with within the time stipulated in the said letter/offer. Thus, even otherwise, no case for specific performance would be made out in absence of pleadings. It is further submitted by him that the application seeking amendment has rightly been rejected in view of the amended provision of [SECTION] of the [ACT], especially the proviso which provides that no application for amendment shall be allowed after commencement of the trial, unless the Court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before the commencement of the trial. It is asseverated by the learned counsel for the respondents that in the application for amendment there is no pleading about due diligence exercised by the plaintiff for not raising the said issue before commencement of the trial. He submits that there was no interim order passed by this Court and the trial is at the evidence stage. In order to substantiate his contention, learned counsel for the respondents has placed reliance on the judgment of the Apex Court rendered in [PRECEDENT] that the trial commences at the stage when issues are framed and affidavits are filed by the witnesses and the same having not been done, the application seeking amendment by the petitioner has been rightly rejected. There is no illegality or perversity of approach in the order impugned warranting interference by this Court under [SECTION] of the [ACT].
10. Having heard the learned counsel for the parties before adverting to the rivalised contentions raised at the bar, it is condign to refer the provisions of [SECTION] of the [ACT] which were substituted by [ACT] (w.e.f. 01-7-2002). It is extracted hereunder:
"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."
11. In view of the obtaining factual matrix, it is apt to survey the legal authorities governing consideration of an application under [SECTION] of the [ACT]. The Apex Court in the case of [PRECEDENT], has held that all amendments ought to be allowed which specify the two conditions : (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real question in controversy between the parties. The amendment should be refused only where other party cannot be placed in the same position as if the pleading had been originally created but the amendment would cause him an injury which could not be compensated with cost. The said view was followed in the case of Gajanan Jaikishan vs. Prabhakar Mohanlal, (1990) 1 SCC
166. Besides, the same was also followed in [PRECEDENT] wherein it was held that an application for amendment is not liable to be rejected merely on the ground of delay, if Court finds that by allowing the application the real controversy between the parties may be resolved and if the nature and character of the suit will not change, the same can be allowed by directing the applicant to pay cost to the opposite party. However, it is limpid that the Court has to be satisfied that by allowing the application for amendment the nature and character of the suit should not be changed.
12. Counsel for the petitioner further submitted that the proviso would not apply in the present case because the trial of the suit has not commenced and the suit is only at the stage of evidence where examination-in-chief in the form of an affidavit has been filed.
13. Combating the aforesaid submissions counsel for the respondents submitted that the trial has already commenced, as the same is at the stage of evidence after framing of the issues. He further submitted that the proposed amendment would completely change the nature and basic structure of the plaint and the same is barred by limitation, as limitation is prescribed for filing of a suit for specific performance, is three years. He submits that the alleged letter was written by the respondent No.1 on 4-01-2006 and thereafter two applications for amendment were allowed, however there was no pleading regarding the fulfilment of requirement for obtaining a decree for specific performance of the contract.
14. It is further submitted that from the pleadings of the plaint, it cannot be said that there is any foundation for concluded contract and, therefore, the proposed amendment would completely destroy the nature of the plaint. It is also submitted that there is no pleading regarding the aspect of due diligence, as required under proviso of [SECTION] of the [ACT]. He further submits that the respondents No.2 and 3 are bonafide purchasers of the respondent No.1 and allowing the application for specific performance would be highly prejudicial to their interest, as the suit for specific performance is barred by limitation.
15. The proviso of [SECTION] of the [ACT] came into consideration in the case of [PRECEDENT]. In [PRECEDENT] it was held that trial of the suit would commence with the statement of the issues and as such the prayer for amendment was made after commencement of the trial and, therefore, the trial Court had rightly rejected the prayer.
16. The said judgment was taken into consideration by the Apex Court in the case of [PRECEDENT] wherein it was held that the provision of [SECTION] is couched in a mandatory form, unless the jurisdictional fact, as envisaged in the proviso to [SECTION] is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. The Court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor should satisfy viz. it must come to the conclusion that in spite of due diligence the parties should not have raised the matter before commencement of the trial. It was further held that the date on which the issue framed is the date of first hearing. The provision of the [ACT] envisage taking of various steps on different stages of the proceedings. Filing of an affidavit in lieu of examination-in- chief of the witness, in our opinion would amount to "commencement of proceedings".
In the present case, there was no stay of the proceedings of suit. The case has already travelled to the advanced stage of evidence. This Court is of the considered view that at this stage, the proposed amendment cannot be allowed which would change the nature and character of the suit.
17. In respect of the contention of the counsel for the petitioner that the amendment was based on subsequent events, in this regard the Apex Court in the case of [PRECEDENT] held that the provisions of [SECTION] are in two parts, i.e. directory and mandatory, and the Court should allow all amendments that may be necessary for determining the real question in controversy between the parties provided, that it does not cause injustice or prejudice to the other side. Only in the cases where the amendment on the basis of subsequent events would be necessary for the purpose of determining the real controversy, the application would be allowed. But, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed if it is not the amendment will be refused. In the said judgment the Apex Court has also taken into consideration that by the proposed amendment the basic structure/nature of the suit should not change. In [ENTITY], HUF (supra), the Apex Court held that it is always open by way of an amendment to amalgamate to relief in one suit but again caveat was put that by allowing the amendment of the plaint the nature of the suit should not change.
In the light of the above discussion and taking into consideration the facts of the present case, it cannot be held that in the present case, the proposed amendment is based on subsequent events
18. The submission of the learned senior counsel for the petitioner that the trial Court ought to have not dismissed the application for amendment on the ground of delay, has to be examined on the anvil of the facts of the present case. In the present case, the application for amendment has not been rejected on the ground of delay, but it has been rejected on the ground that the cause of action, as advanced by way of proposed amendment was time- barred and the petitioner could not show diligence as required under proviso or [SECTION] of the [ACT]. There was no pleading in that regard and the petitioner could not show any reason why the same could not form the subject-matter of amendment in the previous amendment applications when he was well aware of the letter written by the defendant, dated 4-01-2006 and the suit was filed in the year 2009 and thereafter two amendment applications were allowed.
19. To appreciate the submissions regarding delay in filing the application for amendment, it is apposite to refer the judgments where the proposed amendment is barred by limitation. In [PRECEDENT] the Apex Court held that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings.
20. In the facts of the present case the judgements referred by the learned counsel for the petitioner would not extend any aid to his submissions as by the proposed amendment on the facts of the case the nature and basic structure of the suit are changed, as firstly it was a suit for declaration and permanent injunction and thereafter, the sale deed was also sought to be challenged executed by the defendant No.1 in favour of the defendants No.2 and 3 and thereafter, by way of 3rd amendment application the petitioner sought two amendments the pleadings and relief for specific performance of the contract. Thus, this Court does not find any illegality in the impugned order rejecting the amendment at this stage of the suit.
21. Learned senior counsel for the petitioner further submitted that the proposed amendment would be necessary to bring real question in controversy between the parties and, therefore, the lower Court ought to have allowed the application by imposing some cost and, therefore, the application ought not to have been dismissed only on the ground of delay. He relied on the judgment of the Apex Court in the case of [PRECEDENT] (supra), but from the facts of the said case it is manifest that the proposed amendment sought was only for correction of the description of the suit premises in the plaint, in a suit between the landlord and the tenant, and it was further found that the plaintiff was diligent in promptly seeking the amendment in the trial of the suit. Thus, in view of the aforesaid facts the ratio laid down in the case of [PRECEDENT] (supra) would not be of any aid to the contention of the learned counsel for the petitioner.
22. In the case of [PRECEDENT] (supra) it was held in the said case that delay in making the application for amendment of the pleading itself is not a ground for rejection of the application, unless serious prejudice would be caused to other party and accrued rights are taken away by allowing such an application. In the present case, the proposed amendment would change the nature and structure of the suit by aiding a relief for specific performance and would cause serious prejudice to the defendant who is a bonafide purchaser.
23. Learned counsel for the petitioner also referred to the judgement of the Apex Court rendered in the case of [ENTITY] (supra) to submit that the trial Court ought to have allowed the application for amendment in order to avoid multiplicity of suit. He further submitted that the delay by itself is not a ground for rejecting the application. In the case of [ENTITY] (supra) on the facts of the case, the Apex Court found that the nature of amendment being sought in relief was not changing the basic nature and structure of the suit and the same remained unchanged, and therefore, the application for amendment was allowed. Hence, the same would also not apply in the facts of the present case.
24. In [PRECEDENT] it is held that amendment in the plaint would relate back to the date of institution of the suit. The same view has been reiterated in [ENTITY], [PRECEDENT] that the amendment would necessarily relate to the date of filing of the suit and issue with regard to limitation has to be taken into consideration. The same view has been followed in [PRECEDENT].
25. The Apex Court in a recent judgement rendered in the case of [PRECEDENT], has further elaborated the doctrine of relation back i.e., relating back amendment to the date when the suit was originally filed. The principles governing the same have been summarized in the case of [PRECEDENT] while laying down some basic principles for considering the amendment. The Court held that as a general rule the Court should decline amendment if a fresh suit on the amended cause of action would be barred by limitation on the date of the application. Thus, in view of the aforesaid discussion, the trial Court has rightly rejected the application for amendment as the relief for specific performance in view of the date of cause of action would be barred by limitation. Thus, the contention of the counsel for the petitioner that the trial Court ought to have not dismissed the application on the ground of delay cannot be accepted.
26. Further, there is no merit in the contention of the learned counsel for the petitioner that since the Court below has allowed the application for taking additional documents on record, therefore, an application for amendment ought to have been allowed. Consideration of an application for amendment is governed by the provisions of [SECTION] of the [ACT] whereas taking additional documents on record is under the different provisions viz. [SECTION]; or [SECTION] of the [ACT] at the appellate stage. An application for amendment has to be considered by the Court in view of the enunciation of law as discussed in the preceding paragraphs. The contention can be otherwise if the pleading in a suit is allowed then the document may be necessary in support of proof of pleading, but the said position cannot be vice-versa. This view of this Court is fortified by the judgment of the Apex Court rendered in the case of [PRECEDENT] (supra) wherein it was held that for consideration of an application for amendment the pre- condition is that the Court should satisfy that in spite of due diligence, party could not introduce amendment before commencement of the trial. In the absence of such jurisdictional fact Courts have no jurisdiction to allow amendment of the plaint.
27. This Court does not find any illegality in the impugned order rejecting the application for amendment with a reference to the proviso to [SECTION] of the [ACT] and the law laid down by the Apex Court in [PRECEDENT] (supra), [PRECEDENT] (supra), and [PRECEDENT] (supra).
28. Even otherwise, it is settled law that jurisdiction under [SECTION] of the [ACT] cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice. [See[PRECEDENT] and [PRECEDENT]].
29. Further, a Co-ordinate Bench of this Court in the case of [PRECEDENT] held that supervisory jurisdiction under [SECTION] of the [ACT] is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or gross failure of justice has occasioned thereby.
30. Thus, in view of the aforesaid enunciation of law discussed in preceding paragraphs, I do not find any illegality and perversity of approach in the impugned order warranting interference of this Court in exercise of jurisdiction under [SECTION] of the [ACT] and the arguments advanced by the counsel for the petitioner cannot be countenanced.
31. Ex-consequenti, the writ petition being devoid of merit, is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
([ENTITY]) Judge ac.