IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 473 of 2009 Date of Decision : October 6, 2009 Sh. Subhash Sharma Petitioner Versus Sh. Tula Ram Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Sh. Bimal Gupta, Advocate, for the petitioner. For the respondent : Nemo, though served. Sanjay Karol, J. (Oral) The plaintiff has filed the present petition assailing the order dated 8.7.2009 passed by the Civil Judge (Senior Division) Rajgarh, District Sirmarur in CMA No. 53/6 of 2009 in civil suit No. 18/1 of 2008, titled as Sh. Subhash Sharma versus Sh. Tula Ram whereby the plaintiff’s application under order 6 Rule 17 C.P.C. stands dismissed. Application has been dismissed on the ground that the plaintiff has not been able to show any diligence or satisfactory reason for not incorporating the plea and prayer sought to be added by virtue of the amendment and also that the defendant having 1 Whether reports of Local Papers may be allowed to see the judgment? 2 disclosed his defence allowing the application would result in prejudicing its case. The plaintiff filed Civil Suit No. No. 18/1 of 2008, titled as Sh. Subhash Sharma versus Sh. Tula Ram before the Civil Judge (Senior Division) Rajgarh, District Sirmaur, H.P. The plaint contained an averment that on 1.5.2007 the defendant had entered into an oral agreement with the plaintiff for sale of land and advance money in terms thereof was paid vide cheque. The plaintiff repeatedly requested the defendant to execute the sale deed but however since the requests were not heeded to a suit was filed praying for the following relief: “It is therefore prayed that a money decree for the recovery of Rs.1,30,000/- (one lakh thirty thousand) along with interest at the Rs. of 12% per annum may kindly be passed in favor of plaintiff and against the defendant.” The trial Court framed the issues and after the examination of the plaintiff’s witnesses the matter was fixed for recording of defendant’s evidence. Before the defendant could lead its evidence the plaintiff filed an application under Order 6 Rule 17 CPC incorporating the following amendment: “A. In the head note the purposed amendment is as under:- Civil Suit for Specific performance of oral agreement dated 01-05-07 and in alternative recovery suit for the recovery of Rs. 1,30,000/-. 3 B. That after Para no. 4 of the plaint the applicant/plaintiff wants to add Para 4-A by way of purposed amendment to the plaint as under:- 4-A, that the plaintiff also has been ready and willing to perform his part of contract and he is still ready and willing to perform his part of the oral sale agreement dated 01-05-07. The plaintiff is ready and willing to pay the balance consideration amount of Rs. 45,000/- to the defendant and also willing to get the sale deed of 5 biswa of land, executed in his favour as per to oral agreement dated 01-05-07. C. That the purposed amendment in the prayer clause is as under:- It is therefore prayed that a decree for specific performance of oral sale agreement dated 01-05-07 may kindly be passed in favour of plaintiff, directing the defendant to execute sale deed of 0.5 biswa of land from his share in the land comprised in khata-khatoni no. 89/191 to 193 kita 12 measuring 2458.71 sq. meters situated at revenue village Rajgarh Distt. Sirmour (H.P.) and in case the defendant refused to do so, that Naib Nazir of this hon’ble court may kindly be directed to execute the sale deed on behalf of defendant in favour of plaintiff. And in the alternative, if this hon’ble court comes to the conclusion that the plaintiff is not entitled to the relief of specific performance, than the plaintiff prays that the money decree for the recovery of Rs. 1,30,000/- may kindly be passed in favour of plaintiff and against the defendant along with interest at the rate of 12% per annum w.e.f. 01.05.07 till it’s 4 realization with cost. Any other relief which this hon’ble court deems fit may kindly be granted to the plaintiff.” The amendment was opposed by the defendant inter alia on the ground that the application had been filed malafidely with the sole purpose of delaying the proceedings. The trial Court dismissed the plaintiff’s application by holding as under: “Taking the case in hand, only reasons for not including the plea of specific performance of the agreement earlier is given by the plaintiffs being due to inadvertence. It is also settled that persons can not be given benefit of his own wrong. When plaintiffs himself has not been vigilant he can not be held to be diligent in filing the suit for recovery. Therefore, the ingredients of due diligence on the part of the plaintiffs has not been proved, neither, any satisfactory reasons has been given as to why the plaintiffs did not raise this plea of specific performance of agreement before the commencement of trial. Now the plaintiffs has closed his evidence & defendants has filed his written statements and has been cross examined by the plaintiff and his witness. Thus he has disclosed his defence and allowing the application shall result in prejudice to the defendants. Accordingly, as the plaintiff has failed to prove due diligence on his part therefore, the present application is here by dis allowed. The application is accordingly disposed of and now the case be listed for DWs on taking steps within 15 days. Be listed for 4.8.2009.” 5 The defendant was served in the present petition but however there was no representation on his behalf. Hence the present petition is being heard and decided in his absence. Record reveals that the plaint was filed in April, 2008 and the issues were framed on 15.11.2008 after the defendant filed the written statement on 8.8.2008. The plaintiff examined himself on the first date fixed for evidence and after the examination of the plaintiff was complete the matter was fixed for recording the defendant’s evidence when on 9.4.2009 the plaintiff filed an application for amendment of the plaint. In the application the plaintiff has simply pleaded that due to inadvertence he could not file a suit for specific performance of the oral agreement. The principle for allowing the amendments are now well settled and all amendments ought to be allowed which satisfy the 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 when the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. The object of Order 6 Rule 17 is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the 6 real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. The Apex Court in Usha Devi versus Rijwan Ahamd and others, (2008) 3 SCC 717 has held as under: “As to the submission made on behalf of the respondents that the amendment will render the suit non-maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the respondent-defendants to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement.” 7 The Apex Court in Vidyabai and others versus Padmalatha and another, (2009) 2 SCC 409, in almost identical circumstances rejected the application for amendment by holding that after the commencement of the trial, no amendment is to be allowed unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter. The Court considered its earlier decisions rendered in Salem Advocate Bar Association versus Union of India (2005) 6 SCC 344; Ajendraprasadji N. Pandey versus Swami Keshavprakeshdasji N. (2006) 12 SCC 1 and Kailash versus Nanhku (2005) 4 SCC 480 and held as under: “We have carefully considered the submissions made by the respective Senior Counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders passed by the courts below, the High Court and of this Court. In the counter-affidavit filed by Respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings. It is to be noted that the provision of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no 8 application of pleadings shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief.” Now in the present case the application for amendment was moved after commencement of the trial and except for a bald assertion that due to inadvertence the relief for specific performance could not be included there is no explanation showing due diligence carried out on the part of the plaintiff. It is not the plaintiff’s case that the mistake is that of the learned counsel or that he had acted on an improper legal advice. There is no explainable reason for not 9 filing a suit for specific performance initially. The amendment sought to be made is an after thought. For the aforesaid reasons I find no illegality and perversity in the impugned order except for the observation made by the trial Court that the amendment could not be allowed as the defendant would be prejudiced, having disclosed his defence while cross examining the plaintiff. How and in what manner the defendant would be prejudiced has neither been elaborated by the Court nor discussed. It is also not explainable from record. Importantly this was also not the defence taken by the defendant while opposing the application. I find no reasons to interfere save and except as discussed hereinabove. The petition is disposed of with the aforesaid observations. Records be sent back immediately. (Sanjay Karol), Judge. October 6, 2009 (PK)