IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13546 of 2011 Anup Kumar & Anr Versus Narain Prasad & Ors ------------------- O R D E R 05. 27/09/2011 1. I have heard learned senior counsel Mr. Raghib Ahasan on behalf of the petitioners and Mr. S.S. Dvivedi, learned senior counsel on behalf of the respondents in admission matter. 2. This writ application is disposed of at the admission stage itself. 3. The plaintiffs petitioners have filed this application under Article 227 of the Constitution of India challenging the order dated 11.5.2011 as contained in Annexure-1 passed by Sub Judge-4th Gopalganj in Title Suit No. 494 of 2006 whereby the learned court below rejected the amendment of the plaint. 4. The plaintiffs filed Title Suit No. 494 of 2006 claiming for partition of half share in the suit property. The defendants, 2nd set filed contesting written statement alleging that the suit is not maintainable and the plaintiffs and defendant 1st set never remained in possession of the suit property since the year 1911. These defendants perfected their title and they have made construction over the same. 2 5. During the pendency of the suit the plaintiffs filed amendment application seeking amendment in the plaint alleging that they have been dispossessed by the defendants from the suit land. The said amendment was allowed by the court below. It further appears that thereafter this present amendment application was filed for amendment in the prayer portion seeking relief for recovery of possession against the defendants after declaration of title on the ground that the defendants challenged the title of the plaintiffs also. By the impugned order, the learned court below rejected the said prayer on the ground of proviso to Order 6 Rule 17 of the Code of Civil Procedure stating that the nature of the suit will change and the defendants will be prejudiced if the amendment is allowed. 6. Admittedly, in the present case only issues have been framed and the parties have not adduced evidence. 7. The learned senior counsel for the petitioners Mr. Raghiv Ahasan submitted that the learned court below has failed to exercise jurisdiction vested in it by law. The learned court below also did not consider the fact that the plaintiffs prayed for amendment which is pre-trial amendment and only issues have been framed. No evidence has yet been started and the prayer is made because of the stand taken by the 3 defendants in their written statement. The learned counsel further submitted that this original suit was for partition which includes impliedly title also and, therefore, if amendment is made the nature will never change. The learned court below allowed the amendment regarding the statement made by the plaintiffs that during the pendency of the suit the defendants dispossessed the plaintiffs but refused to allow the amendment in the prayer portion. If the amendment will be refused now the plaintiffs have no alternative but to file a fresh suit. Considering this fact the learned court below should have allowed the amendment to avoid further multiplicity of proceedings. 8. On the other hand, the learned senior counsel Mr. S.S. Dvivedi appearing on behalf of the defendants respondents submitted that after the insertion of proviso to Order 6 Rule 17 C.P.C. the Court has no jurisdiction to allow amendment if the hearing of the suit has commenced and the hearing of the suit commenced as soon as issues are framed. In the present case, admittedly issues have been framed and, therefore, the learned court below has rightly rejected the amendment application. The learned counsel further submitted that the defendants are claiming independent title to the suit and the plaintiffs had filed simplicitor partition suit. Now therefore, if the 4 amendment is allowed the nature of the suit will be changed from partition suit to suit for declaration of title and recovery of possession which cannot be allowed. According to the learned counsel the claim of the plaintiffs is also time barred and it is well settled that the time barred amendment cannot be allowed and moreover, a valuable right has accrued in favour of the defendants which cannot be taken away by way of amendment. 9. The learned counsel for the petitioners and the respondents relied upon various decisions in support of their contentions. 10. In (2001) 2 SCC 472 Ragu Thilak D. John Vs. S. Rayappan and others the Apex Court at paragraphs 5 and 6 has held as follows : “5. After referring to the judgments in Charan Das v. Amir Khan, L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., Ganga Bai v. Vijay Kumar, Ganesh Trading Co. v. Moji Ram and various other authorities, this Court in B.K. Narayana Pillai v. Parameswaran Pillai held: (SCC p. 715, para 3) “3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid 5 down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation.” 6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.” 11. In (2002) 7 SCC 559 Sampath Kumar Ayyakannu and another the Apex Court at 6 paragraph 9 has held as follows : “9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” 12. It appears that in the aforesaid decision 7 Sampath Kumar (Supra) the trial court rejected the amendment on the ground that the plaintiff can file separate suit. It further appears that the amendment was prayed for after almost 11 years. In that case also during the pendency of the suit the plaintiff was dispossessed and the plaintiff by way of amendment sought for a relief for recovery of possession. 13. In (2009) 10 SCC 84 Revajeetu Builders and Developers Vs. Narayanaswami and sons and others the Apex Court has held that the courts have very wide discretion in the matter of amendment of pleadings but courts’ powers must be exercised judiciously and with great care. While deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts’ discretion in grant or refusal of the amendment. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. 8 Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. In the said decision at paragraph 63 the Apex Court has enumerated some guidelines which is quoted hereinbelow. “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the claims would be barred by limitation on the date of application.” 14. In (2006) 6 SCC 498 (Pr. 17) Baldev Singh and others Vs. Manohar Singh and others 9 the Apex Court has held that the commencement of trial as used in proviso to Order 6 Rule 17 C.P.C. must be understood in limited sense as meaning the final hearing of the suit, examination of witness, filing of documents and addressing of arguments vide paragraph 17. Admittedly, in the present case only issues have been framed. 15. In view of the above settled principles of law it is clear that Order 6 Rule 17 C.P.C. confers wide jurisdiction on the court to allow either party to alter or amend pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally then those which are sought to be made after the commencement of the trial. 16. The learned counsel for the respondents relied upon AIR 2009 SC 1433 Vidyabai and others Vs. Padmalatha and another and submitted that the trial commenced on the date of issues are framed. Admittedly, in the present case, issues have been framed. It appears that in that case at paragraph 8 the Apex Court decided the question as to whether the trial had commenced or not. The Apex Court held that the trial commenced because the date on which the issues are framed is the date of first hearing. The provisions 10 of the Code of Civil Procedure envisaged taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witnesses, would amount to commencement of proceeding. Therefore, according to the Apex Court when the issue is framed it is the date of first hearing. In that case after framing of issue the affidavits in lieu of examination-in-chef were filed and, therefore, the Apex Court held that the trial commenced. In the present case, it is admitted that no evidence or witness in lieu of examination-in-chief has been filed by the parties. 17. The learned counsel for the respondents next relied upon AIR 2007 SC 806 Ajendraprasadji N. Pande & Anr. Vs. Swami Keshavprakeshdasji N. & Ors. on the question that trial commenced as soon as issue is framed. In that case, amendment of written statement was sought for. In the present case at our hand, the amendment regarding dispossession by the defendants during the pendency of the suit has been allowed by the court below. On the basis of this fact now the plaintiffs filed the amendment application for seeking recovery of possession. Therefore, this amendment sought for by the plaintiffs arose during the pendency of the suit. The defendants themselves claimed title in the written statement. In such circumstances particularly, when the foundation of the 11 relief has already been pleaded in the plaint, in my opinion, the relief portion could not have been refused to be introduced by way of amendment. So far the submission of the respondents that the nature of the suit will change is concerned, in my opinion, that is also not acceptable because it will only lead to multiplicity of proceeding. The plaintiffs will be compelled to file another suit. If the suit will be maintainable then why not the said relief can be granted in the present case by way of allowing amendment. So far this submission that the claim is barred by limitation is concerned, in my opinion, also it is a question of fact and the said issue can very well be gone into at the time of trial only. If the amendment is not allowed then plaintiffs shall suffer serious loss and will be compelled to file another suit. On the contrary, the defendants are claiming title independently and also adverse possession. In such circumstances, the plaintiffs prayed for amendment claiming title and recovery of possession. 18. In view of the above settled principles of law laid down by the Apex Court quoted hereinabove on the ground that the partition suit will be now changed to title suit amendment could not have been refused. It is not the case of the defendants that the amendment sought for is not bona fide and it does not appear to be the real controversy between the parties and is not 12 essential for just decision in the case. On the contrary, in view of pleadings of the parties, in my opinion, it appears that the amendment sought for is bona fide, is necessary for just decision on the question involved between the parties. In my opinion, it does not defeat the law of limitation. 19. The learned counsel next relied upon 2001 (1) PLJR 416 Ram Dhyan Rai and others Vs. Mostt. Peyaro Kuer and others. So far this case is concerned, it relates to amendment in the written statement and there is no dispute about the law laid down in the said decision. 20. The next case relied upon by the respondents is AIR 1998 SC 618 Heeralal Vs. Kalyan Mal and othes. This decision of the Apex Court also relates to the amendment of the written statement where the defendant by way of amendment seeking to withdraw the admission made in the original written statement. Therefore, these are not applicable in the present facts and circumstances. 21. In view of my above discussion, it appears that the plaintiffs filed the amendment application because of the defence taken by the defendants in the written statement. As has been held above by the Hon’ble Apex Court that the pre-trial amendments are to be allowed liberally than those which are sought to be made after commencement of the trial. No doubt, 13 the proviso added to Order 6 Rule 17 is couched in language of mandatory form but since the rule regarding amendment including the proviso is procedural provision relating to amendment of pleadings and the limitations in respect thereof the same should be interpreted to advance justice and not to defeat justice. The Court should not adopt too technical approach on one way or the other. The discretion should be exercised judiciously considering the facts of each case. No straight jacket formula can be framed. The Hon’ble Supreme Court as quoted above has given some guidelines but those guidelines are not exhaustive but are illustrative only. The discretion is left open on the Court which is to be decided in considering facts and circumstances in each case. The court should not apply such beneficent provision in a pedantic manner. 22. Considering the above facts and circumstances of the case, I find that the learned court below has not exercised the jurisdiction vested in it by law and rejected the application for amendment without considering the well settled principles of law. Therefore, the impugned order is liable to be set aside. However, since the amendment has been sought for at a belated stage the plaintiffs are liable to pay cost of Rs.2000/- to the defendants respondents within two weeks from the receipt of a copy of this order in the 14 court below. 23. In the result, this writ application is allowed and the impugned order as contained in Annexure-1 is set aside. The plaintiffs’ amendment application is allowed on payment of cost of Rs.2000/- as stated above. The plaintiffs shall carry on the amendment sought for in the plaint within 14 days from the date of receipt of a copy of this order in the court below. S.S. A.F.R. (Mungeshwar Sahoo, J.)