IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 92 of 2008. Judgment reserved on: 18.6.2008. Date of Decision: 20th June, 2008. ________________________________________________________________ Tarawati … Petitioner Versus Shyam Lal Panatu and another … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr. G.C.Gupta, Senior Advocate with Ms.Beenu Thakur, Advocate For the Respondents : Mr. Suneet Goel, counsel for respondent No.1. ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition under Article 227 of the Constitution of India is directed against the order dated 17.3.2008 passed by the learned Civil Judge (Junior Division), Court No.3, Shimla whereby he has rejected the application filed by the plaintiff under Order 6 rule 17 CPC. This case has a long and chequered history. The suit was filed as far back as on 27.2.1992. The plaintiff Tarawati is the daughter of Pampli from the loins of Sh.Nanku. Nanku died in the year 1957. At the time of his death the plaintiff was a minor. She also had one brother. According to the 2 plaintiff her mother Pampli had after the death of her husband married one Chet Ram defendant No.3 and therefore she had in view of the provisions of Section 2 of the Hindu Widows Re-marriage Act ceased to have any right in the property of Nanku. The plaintiff, therefore, prayed that the transfer of property made by defendant No.2 in favour of defendant No.3 as well as sale deed executed by defendants 2&3 in favour of defendant No.1 are illegal and are not binding upon the plaintiff as she was the sole heir of late Nanku. Later this suit was amended by her and she claimed in the alternative that she would have at least 1/3rd share in the land of Sh.Nanku and that the mutation of inheritance attested in favour of Ram Krishan her brother and Pampli on 8.5.1957 is illegal, void and inoperative. After the defendants were served and written statements were filed, issues were framed in the case on 14.1.1994. Thereafter, the amendment of the plaint was allowed and fresh issues were framed on 7.6.1995. Record shows that the matter was adjourned time and again and finally the evidence of three PWs was recorded on 25.11.1997. On that date defendants 2&3 did not appear and were proceeded against ex-parte. The case was then listed for defendants’ evidence. 3 Thereafter, on 9.10.1998 the defendant No.1 filed an application for placing on record certain documents. The learned trial Court took almost one year to decide this simple application and the application was decided on 7.10.1999. Thereafter, the matter was adjourned for defendants’ evidence time and again. Another application for amendment of the written statement was filed on 2.8.2000. The trial Judge took three years to decide this application and the application was finally disposed of on 4.12.2003. It is indeed shocking that the trial Judge took one year in deciding one application and took three years in deciding the second application. Thereafter, the order allowing amendment was challenged in this Court and proceedings in the suit were stayed. This stay order remained effective till May, 2005 when the petition was dismissed. In the meantime one of the defendant died and the suit had become defective. By order dated 16.9.2006 name of defendant No.2 Pampli Devi was deleted from the array of defendants. Then on 20.10.2006 additional issues arising out of the freshly filed written statement were framed. Though the defendants took opportunity to lead evidence, no oral evidence was led by the parties. When the matter was listed for arguments on 19.4.2007 the plaintiff filed 4 another application under Order 6 Rule 17 CPC alongwith the proposed amended plaint. This application has been disposed of by the impugned order dated 17.3.2008 after one year. A perusal of the case file shows that even after pleadings in the application were complete in July, 2007 it took the learned trial Judge almost 9 months to decide this application. The learned trial Judge has dismissed this application on the following grounds: “From the perusal of the case file it transpires that the plaintiff has filed this case in the year 1991 and the issues have been framed on 14.1.1994. Both the parties have led their evidence. The defendants have closed their evidence on 9.3.2007 and thereafter the case was listed for arguments. From the perusal of the Order 6 Rule 17 CPC 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 the trial. The Hon’ble Apex Court has also held that the amendment shall not be allowed after the trial has commenced unless the court found that in spite of due diligence, the court could not have raised the matter before the commencement of the trial. The plaintiff in her application in Para 6 herself stated that she came to know about the facts only on 11.4.2007. Therefore, the plaintiff having slept over the matter ever since 1992 and she has failed to give any reason for not seeking amendment earlier. Therefore, the proposed amendment is not necessary to decide the real controversy between the parties. Hence, the application under Order 6 Rule 17 of CPC fails and is hereby dismissed. It be tagged with the main case file after due completion.” 5 The trial Court has been greatly influenced by the fact that the suit is pending since the year 1991 and also relied upon the proviso to Order 6 Rule 17 CPC and held that no application for amendment could be allowed after the trial has commenced. I shall first take up the question as to whether the proviso of Order 6 Rule 17 as introduced by the Code of Civil procedure (Amendment) Act, 2002 is applicable to the present case or not. Order 6 rule 17 as amended reads as follows: “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.” There is no change by the amendment to the main provision of the Rule. However, by means of amendment brought in by the Amendment Act of 2002, a proviso has been incorporated which provides that no Court shall allow an amendment unless it comes to the conclusion that despite due diligence a party could not have raised the matter before commencement of trial. 6 Admittedly, this proviso was incorporated w.e.f. 1.7.2002. In the present case the suit was filed before the said date. This question is no longer res integra. The Apex Court in State Bank of Hyderabad vs. Town Municipal Council, (2007) 1 SCC 765 has clearly held that the amended provisions of Order 6 rule 17 CPC will not apply to those cases where the pleadings were filed before 1.7.2002. The order of learned District Judge in so far as it holds that the application is hit by the proviso is not legally correct. By way of amendment, what the plaintiff wants to now allege is that the disputed land was originally owned by her father Nanku and his brother Nanda in equal shares. Nanku died in the year 1957 and his estate was mutated in favour of his widow Pampli and one son Ram Krishan in equal shares to the exclusion of the plaintiff. This mutation order she has already challenged by amendment to the original plaint. Now by fresh amendment the plaintiff wants to bring on record the fact that her Uncle Nanda also expired in the year 1967 without leaving behind any widow or children. Therefore, according to the plaintiff his property was to be inherited by the plaintiff being the daughter of Nanku brother of Nanda. At that time the plaintiff was of about 14 years of age and according to the plaintiff the estate of 7 Nanda was also got mutated in the name of the plaintiff, her brother Ram Krishan and Pampli Devi in equal shares. The plaintiff alleges that neither Ram Krishan nor Pampli had any right to inherit the property of Nanda. It is also alleged that Ram Krishan died later on and his property would have also been inherited by the plaintiff alone. According to the plaintiff she was unaware of all these facts since she was a minor and further she came to know about these facts only when at the time of arguments certified copies of the documents were applied for and obtained. If the amendment is allowed the plaintiff will be challenging the entitlement of Pampli Devi to the property of both Nanku and Nanda. She had originally filed the suit claiming herself to be the owner of the property and had clearly alleged that her mother Pampli Devi had forfeited her right in the property after her re-marriage to Chet Ram. This is the crux of the case which will still remain the same. Therefore, the nature of the suit does not in any manner change. The basic question which is to be decided is whether Pampli Devi had forfeited the right to retain the property of her husband and had also no right to inherit the property of the brother of her husband in view of the fact that she had got re-married. The learned trial Court, 8 therefore, in my opinion erred in holding that the proposed amendment is not necessary to decide the real controversy between the parties. It has been strenuously urged by Shri Suneet Goel that the application under Order 13 Rule 10 CPC was filed in the year 1999 and the plaintiff had slept over the matter for 9 years and cannot be permitted to amend the suit at this stage. The Apex Court in Rajesh Kumar Aggarwal and others vs. K.K. Mod and others, (2006) 4 SCC 385, has held that the Court must allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The Apex Court held that 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. The law with regard to the amendment has been crystallized in the latest judgment of the Apex court in Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others, (2007) 5 SCC 602, wherein the apex Court held as follows: “17. From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow 9 alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced. 18. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung [AIR 1922 P.C. 249] may be taken note of. The Privy Council observed: "All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit." (Underlining is ours)” The law therefore is well settled that Court should be liberal in granting amendments. It is however true that the plaintiff has been remiss and has moved this application at a highly belated stage. However, when all the documents are gone through and the record seen it is clear that the fault for the entire delay does not lie on the shoulder of the plaintiff alone. The Court itself has taken years to decide simple applications and therefore, in my opinion, this application could not have been rejected only on the ground that it is belated. In the peculiar facts of the case I am of the opinion 10 that the defendants could be compensated with costs for the delay. In view of the aforesaid discussion the petition is allowed, the order of the learned Civil Judge dated 10.4.2008 is set-aside and the plaintiff is permitted to amend the plaint. This is however subject to payment of Rs.10,000/- as costs. Out of the costs Rs.5000/- shall be paid to the defendant and Rs.5000/- to the District Bar Association, Shimla. The District Bar Association, Shimla shall utilize the costs only for the purpose of purchase of books. The costs shall be paid/deposited on or before the next date. Keeping in view the fact that the suit is a very old one, the parties are directed to appear before the learned trial Court on 9th July, 2008, on or before which date the costs must be paid/deposited. In case the costs are not paid then this petition shall be deemed to be dismissed and the learned trial Court shall hear the arguments in the case. In case costs are paid the defendants may file their written statements to the proposed amended plaint on the same date i.e. on 9th July, 2008. Replication, if any, shall be filed within one week thereafter and the learned trial Court shall frame additional issues, if any, arising out of the pleadings on or before 31st July, 2008. Sh.G.C. Gupta, learned senior 11 counsel has made a statement at the Bar that in support of the amended plaint only the plaintiff is to be examined. Therefore, I direct that the plaintiff shall be examined on any date prior to 14th August, 2008. Thereafter, the defendants shall be given not more than two opportunities to lead their evidence, if any. The defendants may take dasti notices for service of the witnesses, if any, to be examined but shall be responsible for the service of the same. In case witnesses are served but not present the Court shall take coercive steps to ensure the presence of the witnesses. The evidence of the defendants shall be recorded on or before 30th September, 2008. Thereafter, the learned trial Court shall hear the matter and decide the same by 31st October, 2008. June 20, 2008. ( Deepak Gupta ),J. PV