IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19285 of 2011 Bharatjee Prasad & Anr Versus Yogendra Pandit & Ors ---------------------------------- O R D E R 03. 30.11.2011. 1. I have heard learned senior counsel, Mr. S. S. Dwivedi on behalf of the petitioner and the learned senior counsel, Mr. T.N. Maitin on behalf of the respondent. 2. By the impugned order dated 16.09.2011 passed by 5th Subordinate Judge, Gopalganj in Title Suit No.29 of 2009 the amendment of written statement has been allowed. The plaintiffs have challenged this order. 3. The learned senior counsel, Mr. Dwivedi, on behalf of the petitioner submitted that in view of Proviso added to Order 6 Rule 17 C.P.C., the learned Court below could not have allowed the amendment in the written statement after the examination of 26 witnesses on behalf of the plaintiffs. According to the learned counsel, the defendants have not assigned any reason for not making the amendment earlier. Unless the defendants satisfy the requirement of law, the Court has no jurisdiction to allow amendment. The Proviso introduced by Amendment Act 22, 2002 is mandatory. 4. On the other hand, the learned senior counsel, Mr. Matin appearing on behalf of the respondent submitted that the amendment sought for by the defendants are formal in nature and - 2 - finding the same, the learned Court below held that the amendment is necessary for the decision of real controversy between the parties and allowed the same. The Proviso added to Order 6 Rule 17 is no doubt couched in the language of mandatory form but in fact it is not mandatory and the Court has the jurisdiction to allow the amendment if it is essential for doing justice. 5. The learned counsel relied upon an order dated 18.08.2011 passed in C.W.J.C. No.5709 of 2011 and submitted that in that case also at the time of argument of the case in title suit No.34 of 2004, the amendment was allowed and this Court refused to interfere in exercise of supervisory jurisdiction. 6. From perusal of the amendment application, it appears that the defendant No.1 filed amendment application seeking amendment in paragraph 19 of the written statement. In paragraph 19 of written statement, the defendant No.1 claimed himself to be the landlord and denied to have requested the plaintiff to let out the room in rent. By way of amendment, the defendant now has explained elaborately which would be evident from the amendment application alleging that how the defendant No.1 was realising rent from plaintiff No.1 and on denial, he has filed eviction suit No.2 of 2008 against plaintiff and the defendant 2nd and 3rd set. 7. It is well settled that by amendment, the plea taken earlier may be explained or clarified offering full description. As stated above in the present case at paragraph 19 of the written statement, the defendant No.1 claimed himself to be landlord. By amendment, he is elaborately explaining the same and also giving - 3 - the fact. In my opinion, therefore, the amendment sough for will never change the nature of suit as the parties are claiming title over the suit property. So far Proviso added to Order 6 Rule 17 is concerned, it only restricts the power of Court to allow amendment which prejudices the party. 8. In 2006 (6) S.C.C. 498 Baldev Singh Vs. Manohar Singh, the Apex Court has held that Courts should be extremely liberal in granting the prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. Commencement of trial as used in proviso to Order 6 Rule 17 C.P.C. must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. In the present case admittedly the parties are yet to adduce documentary evidences and more over the evidence of plaintiff has not been closed. 9. In 2011 (4) BBCJ 107 Mahadev Govind Gharge Vs. the Special Land Acquisition Officer, the Apex Court has held that the Code of Civil Procedure is a law relating to procedure and procedural law is always intended to facilitate the process of achieving the ends of justice. The Court would normally favour the interpretation which will achieve the said object. 10. In 2003 (3) S.C.C. 272, Sardar Amarjeet Singh Kalra Vr. Pramod Gupta, the Apex Court has held that law of procedure are meant to regulate effectively assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merit of substantial rights of citizen under personal - 4 - property and other law. 11. In 2009 (1) P.L.J.R. 286 Supreme Court Shambha Ji Vs. Ganga Bai also the Apex Court has held that any interpretation which eludes or frustrates recipient of justice is not to be followed. Merely, because a provision of law is couched in a negative language implying mandatory character, same is not without exception. The procedural law should not ordinarily be construed as mandatory. Procedural law is always subservient to and is in aid of justice. No doubt, in both the above decisions, different provisions of C.P.C. were considered but then the law laid down is regarding procedural law. 12. From perusal of the impugned order, it appears that the learned Court below has noticed the Proviso added to Order 6 Rule 17 by amendment Act and, thereafter, has allowed the amendment and, therefore, in my opinion, the learned Court below has rightly exercised a judicial discretion in favour of allowing the amendment. The plaintiff is at liberty to rebut the amendment allowed in written statement. 13. Considering the above facts and circumstances of the case, I find no reason to interfere with the impugned order. Accordingly, this writ application is dismissed. Patna High Court, Patna The 30thday of November 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)