IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 99 of 2010. Decided on: 13th December, 2010. Ishwari Devi. …Petitioner. -Versus- Bhupinder Singh and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Deepak Bhasin, Advocate. For the respondents. : Mr. Suneet Goel, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): This Revision Petition is directed against the order dated 25.06.2010, passed by the learned Civil Judge (Junior Division), Court No. 2, Rohru, District Shimla in C.M.A. No. 117/6 of 2010 in Civil Suit No. 77/1 of 2010. 2. Material facts necessary for adjudication of this petition are that the petitioner-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had instituted a suit for declaration and also for permanent prohibitory injunction, restraining the respondents-defendants (hereinafter referred to as “the defendants” for brevity sake) from alienating, creating charge and changing the nature of the land being the joint property. 3. The defendants filed written statement to the plaint. Plaintiff preferred an application under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of the plaint. 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - 4. The defendants contested the same by filing a common reply. No rejoinder was filed by the plaintiff to the same. The learned Civil Judge (Jr. Division), Court No. 2, Rohru, District Shimla, H.P. dismissed the application on 25.06.2010. This Revision Petition has been preferred against the order dated 25.06.2010. 5. Mr. Deepak Bhasin, learned counsel for the petitioner has strenuously argued that the learned Civil Judge (Junior Division), Court No. 2, Rohru, Shimla has failed to exercise the jurisdiction vested in him by not allowing the application preferred under Order 6 Rule 17 of the Code of Civil Procedure. According to him, the amendment of the plaint was necessary to determine the real question in controversy between the parties. 6. Mr. Suneet Goel, learned counsel for the respondents has supported the order dated 25.06.2010. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. The case, as set out by the plaintiff initially, was that one Gokal Ram died leaving behind Sham Singh, Najjar Mal, Kathi and Sunder Mani, as legal representatives. Shri Najjar Mal also died leaving behind the plaintiff –Ishwari Devi and Kathi (mother), as legal representatives. Smt. Kathi has also expired. According to the plaintiff, Sham Singh, Najjar Mal, Kathi and Sunder Mani were entitled to 1/4th share each of estate of Gokal Ram. After the death of Najar Mal, plaintiff and Kathi were also entitled to ½ share each, i.e., 1/4x1/2=1/8 in the joint property. Kathi was mother of Najjar Mal and the - 3 - plaintiff is widow of Najjar Mal. The mutation No. 67 in Chak Khabbal and mutation No. 151 in Chak Tikkari pertain to the suit land. According to her, the mutations were attested in contravention of the provisions of Hindu Succession Act. According to her, the suit land was recorded in the joint ownership and possession of the legal representatives and the status of the family was joint, however, the parties were living separately by way of family arrangement. She has also assailed the execution of Will No. 47/07, dated 01.08.2007 executed by late Kathi in favour of defendant No. 1. 9. The defendants had contested the suit. On merits, it was averred that Shri Najjar Mal was unmarried and he died issue-less and the plaintiff was not his legal heir. It was denied that the plaintiff as well as Smt. Kathi were both entitled to succeed to the estate of Shri Najjar Mal. According to them, the Will dated 01.08.2007 has been voluntarily executed by Kathi. 10. The plaintiff sought amendment of plaint, on the ground that she being illiterate lady, could not narrate certain facts to his advocate regarding her joint marriage with S/Shri Najjar Mal and Sham Singh. This most important fact has not been mentioned at all in the plaint filed by the plaintiff. It cannot be presumed that she did not know about the status of her marriage. The provisions of Order 6 Rule 17 of the Code of Civil Procedure are to be construed liberally in order to determine the real question of controversy between the parties. However, it is equally true that the Courts must ensure that the proposed amendment does not change the nature of the suit land and does not take away the rights which had vested in favour of the - 4 - opposite party. The factum of joint marriage of the plaintiff with S/Shri Najjar Mal and Sham Singh was altogether a new plea raised for the first time in an application preferred under Order 6 Rule 17 of the Code of Civil Procedure. 11. Their Lordships of the Hon’ble Supreme Court in Revajeetu Builders and Developers versus Narayanaswamy and sons and others, (2009) 10 SCC 84 have laid down the following tests, which govern the discretionary power while granting or refusing the amendment: “58. 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. 59. 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 other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care. 61. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following - 5 - parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive. (i) At what stage the amendment was sought? (ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage; (iii)The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly. (iv) The imposition of costs should not be symbolic but realistic; (v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs. (vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs. All these aspects must be carefully taken into consideration while awarding the costs. 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 - (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that 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.” 12. Their Lordships of the Hon’ble Supreme Court have discussed the scope of Order 6 Rule 17 of the Code of Civil Procedure in Rajkumar Gurawara (Dead) through LRs versus S.K. Sarwagi and Company Private Limited and another, (2008) 14 SCC 364 as under: “18. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the - 7 - law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge.” 13. The application preferred by the plaintiff has rightly been dismissed by the learned Civil Judge (Junior Division), Court No. 2, Rohru by passing a speaking/detailed order. There is neither any illegality nor procedural irregularity in the order passed by the learned trial Court. 14. Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge December 13, 2010. (bhupender) - 8 -