IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 531/2002 and RSA No. 536/2002 Reserved on:12.9.2008 Decided on:25.9.2008 RSA No. 531/2002: Joginder Kumar and others. …Appellants. Versus Karam Singh and others. …Respondents RSA No. 536/2002: Joginder Kumar and others. …Appellants. Versus Karam Singh and others. …Respond Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the Appellants : Mr. Bhupender Gupta, Senior Advocate with (in both the appeals) Mr. Neeraj Gupta, Advocate. For the Respondents : Mr. K.D. Sood, Advocate and Mr. Rajnish K. Lal (in both the appeals) Advocate for respondents No. 2 and 5. Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate for respondent No.4. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 Rajiv Sharma, J. Both these appeals have arisen out of common judgment and decree dated 22.10.2002 passed by the learned District Judge, Solan in civil appeal No. 50-S/13 of 1989. Since common questions of law and facts are involved in these appeals, these were heard together and are being decided by a common judgment. The brief facts necessary for the adjudication of these appeals are that the predecessor-in-interest of the present appellants had filed two civil suits bearing No. 265/1 of 1984 and 33/1 of 1985 for declaration and injunction against the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake). The learned trial court framed the following issues on 18.6.1987 in civil suit No. 265/1 of 1984: 1. Whether the owner Shri Shibia inducted plaintiff as non- occupancy tenant at Theka of Rs. 150/- P.A.? OPP 2. Whether Shri Shibia executed agreement dated 17.6.76 with the plaintiff and agreed to sell the land for Rs. 6000/-? OPP 3. Whether the plaintiff has no locus standi to sue? OPD 4. Whether the suit is barred u/s 10 CPC as alleged? OPD 5. Whether the suit is barred by resjudicata? OPD 6. Whether the suit is barred by time? OPD 7. Whether the suit is properly valued for court fee and jurisdiction? OPD 8. Whether the suit is barred by mis-joinder of the parties? 9. Whether the suit is not maintainable? OPD 10. Relief. The learned trial court on the same day framed the following issues in civil suit No.33/1 of 1985: 1. Whether plaintiff was tenant of the suit land and has now become owner and possessing the land? OPP 3 2. Whether the suit is not maintainable in view of decision in case No. 32/1 of 79? OPD 3. Whether the suit is barred by time? OPD 4. Whether the plaintiff is estopped to sue by conduct? OPD 5. Relief. Civil suit No. 33/1 of 1985 was clubbed with the civil suit No. 265/1 of 1984 vide order dated 15.7.1987. The learned trial court dismissed the civil suits on 12.10.1988. The predecessor-in-interests of the appellants was not found tenant and document Ex.PW-2/A dated 17.6.1976 was not found validly executed. The predecessor in interest of the plaintiffs filed two civil appeals, as noticed above, in the court of learned District Judge, Solan, Himachal Pradesh. During the pendency of these appeals, the plaintiffs filed two applications under order 6 rule 17 of the Code of Civil Procedure, which were registered as CMA No. 288/6 of 2002 and 290/6 of 2002. In application No. 288/6 of 2002, the plaintiffs intended to substitute the existing para 10 of the plaint with the proposed amendment, which reads as under: “That the appeal after remand from the Hon’ble Court of Himachal Pradesh was pending before the learned District Judge Solan. It is submitted that since this appeal was with regard to an entirely different grounds and against Shri Laxmi Singh only that had become infructuous. It is submitted that although in the said case titled as Sukh Dev Versus Laxmi Singh the agreement dated 17.6.1976 was pleaded yet it is important to state that the findings on merits given by the learned Senior Sub Judge, Solan in above stated Civil suit No. 32/1 of 79 have no effect upon the said agreement. It is submitted that the said suit was for specific performance against Shri Laxmi Singh, whose title was later on set aside by the Hon’ble civil Court in Civil Suit No. 247/1 of 81 decided on 14.3.83. Therefore, 4 this suit No. 32/1 of 79 was against wrong person who was not having title to the property of Shri Shibia, therefore, any finding in the said suit that was allowed to be withdrawn as submitted above has no effect on merits of the agreement dated 17.6.76 in any manner whatsoever. It is also simultaneously stated that the agreement dated 17.6.76 may kindly be considered fresh ignoring the finding in Civil Suit No. 32/1 of 79.” The plaintiffs also wanted to insert para 10-A on the basis of application No. 290/6 of 2002 to bring the subsequent events by adding the same para as para 3-A in the plaint, which reads as under: “That one partition proceedings titled as petition No.16/9 of 93 and 15/3 of 93 are pending among the present respondents before the learned A.C. 1st Grade Solan. The learned A.C. Ist Grade as per the para 14.13 of the H.P. Land Records Manual ordered for the preparation of Furd Kabja. A.C. Ist Grade had ordered for the preparation of the Furd Kabja of the land including that of suit land. The revenue authorities visited the spot on 28.4.2002 and found the possession of the applicants on the spot whereupon house of applicant also exists on khasra No.8min as shown in accompanying map as well as photographs. It is further submitted that on 5.7.2002 the some of the respondents raised objection of the Furd Kabja dated 28.4.2002. The Ld. A.C. Ist Grade again ordered for the preparation of Furd Kabja. The field Kanungo after summoning the parties again visited the spot on 3.8.2002 and prepared the Furd Kabja. This time again the previous list of possession Furd Kabja was confirmed. Therefore, the cultivating possession and possession in the shape of the house of the plaintiff on the spot is clearly established.” These two applications were contested on the ground that these would change the nature of the suits and the cause of action. The 5 plaintiffs had filed amended plaints with these applications. The plaintiffs had also moved two applications under order 41 rule 27 of the Code of Civil Procedure contended therein that in a partition proceedings Fard Kubja was ordered to be prepared by the AC-Ist Grade which also included the suit land. The learned District Judge dismissed the applications filed under order 6 rule 27 of the Code of Civil Procedure as well as the applications preferred under order 41 rule 27 of the Code of Civil Procedure. These applications were decided in the main judgment. The learned District Judge dismissed the appeals on merits on 22.10.2002. These two appeals have been preferred against the common judgment dated 22.10.2002. These Regular Second Appeals were admitted on the following substantial questions of law: 1. Whether both the courts below have acted in illegal and perverse manner by putting undue reliance on the revenue record, presumption of truth to which was duly rebutted by various documents placed on the record, particularly Exhibit PW-4/A in refusing to grant decree for injunction to the plaintiffs-appellants? 2. Whether both the courts below have illegally exercised the jurisdiction by not appreciating the true import of the judgments and decrees in the previous proceedings Exhibit E-1 to Exhibit D-9 and further ignoring the admissions made by the defendants and their predecessor in interest? 3. Whether the trial court has acted with material illegality and irregularity in taking erroneous view of law that Exhibit PW-2/A the document of tenancy required registration? Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable in the eyes of law. He also contended that the learned District and Sessions Judge has erred in law while dismissing the applications 6 under order 6 rule 17 and under order 41 rule 27 of the Code of Civil Procedure. Mr. G.D. Verma, Senior Advocate and Mr. K.D. Sood, Advocate appearing on behalf of the respondents have supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-connected, therefore, the same can be conveniently discussed together to avoid repetition of discussion of the evidence. Mr. Bhupender Gupta has confined his submission primarily to two aspects of the matter, namely, the learned District Judge ought to have allowed the applications preferred under order 6 rule 17 of the Code of Civil Procedure as well as the application preferred under order 41 rule 27 of the Code of Civil Procedure. He has contended that the learned District Judge has wrongly relied upon the proviso inserted to order 6 rule 17 of the Code of Civil Procedure by way of amendment Act No.22 of 2002. He further argued that the amendment carried out by way of Act No. 22 of 2002 is prospective in nature. All the pleadings which were already filed and pending before the courts of law would not have been governed by the proviso added to order 6 rule 17 of the Code of Civil Procedure. The contention raised by Mr. Bhupender Gupta is no longer res intergra in view of the definitive pronouncements of law by their Lordships of the Hon’ble Supreme Court in State Bank of Hyderabad versus Town Municipal Council, (2007) 1 SCC 765. Their Lordships have held as under: “The short question which arises for consideration is as to whether the proviso appended to Order VI, Rule 17 of the Code is applicable in the instant case. 7 Order VI, Rule 17 of the Code reads, thus: "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." Proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 1.07.2002. It reads as under: "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." Section 16(2) of the Amending Act of 2002 reads as under: "16(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub- section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 _ (a) *** *** (b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;" In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order VI, Rule 17 of the Code shall not apply. 8 The High Court relied upon the said proviso and opined that having regard thereto the plaintiff was obligated to establish that in spite of due diligence it could not have raised the matter before commencement of the trial of the suit. The High Court evidently committed an illegality in relying upon the said provision. The learned counsel appearing on behalf of the respondent, however, would submit that the application for amendment being belated, the same should not have been entertained. It is one thing to say that the application for amendment suffers from delay or laches but it is another thing to say that thereby the defendant was prejudiced. It is also not a case of the respondent that by reason of such an amendment, the relief which could not be granted having regard to the law of limitation has become available. The court even in such a case is not powerless although the question as to whether the relief sought for would be otherwise barred by limitation is a relevant factor to determine the issue.” In the present case the learned District Judge has relied upon the proviso added to order 6 rule 17 of the Code of Civil Procedure by way of amendment Act No. 22 of 2002. I am of the considered view that the learned District Judge has erred in law by invoking the proviso added to order 6 rule 17 of the Code. In the case in hand, the civil suits were filed in the year 1984 and 1985 respectively and accordingly the proviso to order 6 rule 17 of the Code could not be made applicable. Their Lordships of the Hon’ble Supreme Court in Rajesh Kumar Aggarwal and others versus K.K. Modi and others, (2006) 4 SCC 385 have held that court should allow all the amendments that may be necessary to determine the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 9 The 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 court is precluded from going into the correctness or falsity of the case in the amendment and the court should not record a finding on the merits of the amendment. The court should take notice of subsequent events. Their Lordships have held as under: “The object of the rule is that 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 real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. As discussed above, the 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. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the 10 learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that 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. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” Their Lordships of the Hon’ble Supreme Court in Andhra Bank versus ABN Amro Bank N.V. and others, (2007) 6 SCC 167 have held that delay in filing application seeking amendment is no ground to refuse the prayer for amendment. Their Lordships have held as under: “We have heard Mr. Rohit Kapadia, learned senior counsel appearing for the appellant and Mr. S. Ganesh, learned senior counsel for the respondent. We have perused the original written statement as well as the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement, we are of the view that the amendment sought to be introduced by the appellant must be allowed. From a perusal of the impugned order of the Special Court we 11 find basically that two grounds have been taken by the Special Court for rejecting the prayer for amendment of the written statement. The first ground is that considerable delay has been caused by the appellant in filing the application for amendment of the written statement. It is well settled that delay is no ground for refusal of prayer for amendment. Mr. Ganesh, appearing for ABN Amro Bank submits before us that by filing of such an application for amendment of the written statement which has been filed with long delay, the appellant sought to stall the hearing of the suit which has been fixed on 13th July, 2007. In response to this Mr. Kapadia, learned counsel for the appellant, submits that in the event the prayer for amendment is allowed by us his client undertakes to file the amended written statement by day after tomorrow, i.e., 12th July, 2007 before the Special Court. Since, we are of the view that delay is no ground for not allowing the prayer for amendment of the written statement and in view of the submissions made by Mr. Kapadia, we do not think that delay in filing the application for amendment of the written statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the 12 suit in view of Section 230 of the Indian Contract Act was or is not maintainable. In view of the reasons stated herein above we are of the view that the order of the Special Court rejecting the application for amendment of the written statement filed by the appellant is liable to be set aside and the prayer for amendment of the written statement must be allowed. Accordingly, the application for amendment of the written statement is allowed and the impugned order is set aside. We are informed by the learned counsel for the parties appearing before us, as noted herein earlier, that the suit has been fixed for hearing on 13th July, 2007 and the parties will not seek any adjournment on that date. In that view of the matter we direct the appellant to file the amended written statement by 12th July, 2007 positively and thereafter the Special Court shall proceed with the hearing of the suit. The appeal is allowed to the extent indicated above. There will be no order as to costs.” In CMA No. 288/6 of 2002, the amendment sought was only to the effect that the earlier finding recorded in civil suit No. 32/1 of 1979 on 9.3.1981 had no bearing in the present lis. In application No. 290/6 of 2002, the plaintiffs wanted to amend the plaint on the basis of the subsequent development after the passing of order by the AC-Ist Grade when he ordered the preparation of Fard Kabza. The learned first appellate court has dismissed these applications by invoking the proviso to order 6 rule 17 of the Code which as noticed above was not applicable in the present case. The other ground for not allowing the application seeking amendment was delay and laches. The delay and laches are though required to be considered, but amendment to plaint could not be denied only on this ground when the same has been explained satisfactorily by the plaintiffs. The court neither should go into the 13 correctness or the falsity of the amendment nor record a finding on the merits of the amendment. Whether the order passed by the AC-1st Grade had some bearing on the outcome of the civil suit or not was to be gone into after allowing the application and not before that. The learned District Judge was swayed by the fact that the order passed by the AC-1st Grade was outcome of summary procedure. In other words, he has given a finding on the merits of the case without allowing application under order 6 rule 17 of the Code of Civil Procedure. The plaintiffs have also filed two applications under order 41 rule 27 of the Code to prove their possession on the suit land on the basis of the order passed by the AC-Ist Grade in the year 2002. The learned District Judge has dismissed the applications primarily on the ground that the parties cannot be permitted to fulfill the lacuna. In the present case, the additional ground became available to the plaintiffs in the year 2002 when the AC-1st Grade passed the order with regard to possession of the plaintiffs. The learned District Judge has not taken into consideration the well known principles applicable for allowing or disallowing the application under order 41 rule 27 of the Code. The applications could not be rejected merely on the ground that it was objected to by the defendants. I am of the considered opinion that the learned District Judge has dismissed applications under order 41 rule 27 of the Code without taking into consideration the settled law. The applications ought to have been allowed since the pleas taken in the applications became available to the plaintiffs only after passing the order by the AC-1st Grade in the year 2002. In view of the aforesaid reasoning, these Regular Second Appeals are disposed of. The judgments and decrees passed by both the courts below are set aside. CMAs No. 288/6 of 2002 and 290/6 of 2002 filed under order 6 rule 17 of the Code preferred by the plaintiffs are allowed. 14 The amended plaints are permitted to be taken on record. The defendants are also permitted to file written statements to the amended plaints. The matter is