* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Civil Revision Petition No.1208 of 2011 % 27-07-2011 # Chapidi Venkata Subba Reddy S/o late Subba Reddy YSR Kadapa District. …Petitioner Vs. $ Konduru Indravathamma and another …Respondents ! Counsel for the petitioner: Sri Nimmagadda Satyanarayana Counsel for the Respondents : Sri Ch.Janaradhan Reddy < Gist: > Head Note: ? Cases referred: 2003-ALT-3-374 (2009)10 Supreme Court Cases 84 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1208 of 2011 (Dated : 27-07-2011) Between: Chapidi Venkata Subba Reddy S/o late Subba Reddy YSR District …Petitioner A n d Konduru Indravathamma and another …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1208 of 2011 ORDER: This revision is directed against the order dated 14.02.2011 passed in I.A.No.1730 of 2009 in O.S.No.148 of 2008 on the file of the Principal Senior Civil Judge, Rajampet, YSR Kadapa District, whereby and whereunder, the petition filed by the petitioners/defendants seeking amendment of the written statement came to be allowed. 2. The petitioner is the plaintiff in O.S.No.148 of 2008 on the file of the Principal Senior Civil Judge, Rajampet. He filed the suit against the respondents/defendants for recovery of Rs.6,75,000/- basing on the agreement dated 02.4.2008. The respondents/ defendants entered appearance in the suit and resisted the claim of the petitioner/plaintiff by filing written statement. The 1st respondent-1st defendant filed written statement denying the execution of the suit agreement. She pleaded in the written statement that she did not receive any consideration from the plaintiff. Subsequently, the respondents-defendants filed I.A.No.1730 of 2009 under Order VI Rule 17 CPC seeking amendment of written statement by deletion of certain paragraphs therein and substitution of the same with other paragraphs. The amendment of the written statement as sought for, reads as hereunder: - “DELETED PARAGRAPHS IN THE WRITTEN STATEMENT: (1) 3rd para, `but there is no any connection with maintaining all the affairs of the mines on the name of 1st Defendant (2) 4th paragraph (3) 5th Para “On that grudge the plaintiff created this suit agreement with his henchmen on 1st Defendant and filed this suit for getting wrongful gain and harassment of these defendants, and also the plaintiff created forgery pronote along with his henchmen and filed the suit before the Junior Civil Judge Court, Rajampet as O.S.No.56/2008, the 2nd Defendant’s Advocate gave reply of for all Plaintiff notices with all facts and also gave reply to the plaintiff Advocate from Defendant Advocate. (4) 6th to 14th paragraphs. INSERTING NEW PARAGRAPHS AS PARAGRAPHS 6,7, & 8 IN THE WRITTEN STATEMENT AFTER PARAGRAPH 5:- “6. That the unregistered Agreement dated: 02.4.2008 is executed by the 1st Defendant in favour of the Respondent/Plaintiff is true. But the respondent/ plaintiff without complying the terms and conditions of the agreement dated : 02.4.2008 filed the suit against the petitioners/defendants. Previous counsel colluded with the Respondent/Plaintiff and created the letters and taken forgery plea without the instructions of the petitioners and to get wrongful gain from the Petitioners/Defendants. As per the conditions of the Agreement this Respondent/Plaintiff has no right to file suit against the petitioners/Defendants. As per the terms and conditions of the agreement the Respondent/Plaintiff has to pay Rs.3,50,000/- to the 1st petitioner, but without paying the same the respondent/plaintiff approached the Honourable Court with malafide intention.” “7. That as per the Unregistered Agreement dated : 02.04.2008, the Respondent/Plaintiff has no right to file suit before the Honourable Court. It is very clear in the agreement that if any differences arose between either party regarding the said transaction, both parties has no right to seek legal remedies before any Court” “8. That as per the terms and conditions of the Unregistered Agreement dated : 02.04.2008, either party has no right to file any proceedings before the Court of Law. Hence there is no cause of action to the suit. When there is no cause of action to the suit, it is liable to be dismissed.” 3. It is stated in the affidavit filed in support of I.A.No.1730 of 2009 that the defendants never instructed their counsel to take the plea of forgery of suit agreement and instead, they instructed the counsel that the plaintiff without complying the terms and conditions of the agreement dated 02.04.2008 filed the suit. 4. The respondent-plaintiff filed counter resisting the amendment of written statement as sought for by the petitioners/defendants. The learned Senior Civil Judge, on hearing the counsel appearing for the parties and on considering the material brought on record, came to the conclusion that the defendants cannot be penalised for the mistakes committed by their counsel and thereby, proceeded to allow the petition, by order dated 14.2.2011. Hence this revision by the respondent/plaintiff. 5. Notice before admission came to be ordered on 11.4.2011. The respondents received the notice and entered appearance through a counsel. 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the petitioner submits that the respondents-defendants having denied the execution of the agreement dated 02.4.2008 in the written statement cannot be permitted to raise a plea varying with the earlier plea taken in the original written statement and the same is barred under Order VI Rule 7 CPC. In support of his submissions, reliance has been placed on the judgment of this Court in Nalamothu Saibabu Naidu v. Chidipothu Krishnaiah[1]. 8. Learned counsel appearing for the respondents-defendants submits that the proposed amendment, in no way, cause prejudice to the petitioner-plaintiff and the respondents-defendants by way of the proposed amendment admits execution of suit agreement and explains the circumstances under which it came to be executed by them. If the original plea of the respondents-defendants remains on record, the petitioner-plaintiff has to prove the execution of the agreement of sale. The respondents-defendants, by way of amendment of the pleading in the written statement, admitted execution of the agreement, but explained the circumstances under which it came to be executed. The trial Court has taken note of the original statement and also the proposed amendment and proceeded to allow the application by giving cogent and convincing reasons and therefore, it is impermissible for this Court to interfere with the order impugned in the revision in exercise of powers under Article 227 of the Constitution of India. 9. Order VI Rule 17 CPC reads as hereunder:- “[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.] 10. It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) Act, 1999 but because of public uproar, it was revived. Justice C.K.Thakker, an eminent former Judge of Supreme Court in his book on Code of Civil Procedure (2005 Edn) incorporated this information while dealing with the object of amendment. In the year 2002, Rule 17 was restored, but a proviso has been added. That proviso applies only after the trial has commenced. Prior to that stage, the situation remains as it was. 11. The general principle is that Courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases. 12. The Supreme Court in Revajeetu Builders & Developers v. Narayanaswamy & Sons[2], after extensive survey of number of decisions on Order VI Rule 17 CPC indicated the factors to be taken into consideration while dealing with applications for amendments. Para (63) of the cited judgment reads as hereunder:- “(66) 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 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.” 13. The courts have very wide discretion in the matter of amendment of pleadings. But the Court’s power 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 governs the court’s discretion in grant or refusal of the amendment. 14. In Nalamothu Saibabu Naidu’s case (1 supra), relied upon by the learned counsel appearing for the petitioner, the guiding principles which are required to be taken into consideration for allowing or rejecting an application for amendment under Order VI Rule 17 CPC did not fell for consideration. A learned Single Judge, in the above-referred decision, considered only Order VI Rule 7 CPC. Order VI Rule 7 CPC reads as hereunder:- “7. No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same”. 15. The words “except by way of amendment” make it clear that the provisions of this Rule are subject to Rule 17, which provides for amendment of pleadings. Whether amendment of pleading should be allowed or not, can be decided on well settled principles laid down in Rule 17 CPC. Since the decision on which the learned counsel appearing for the petitioner is not related to Order VI Rule 17 CPC, the proposition of law laid down in the above-referred decision is of no help to the petitioner. 16. The respondents-defendants denied the execution of the agreement dated 02.4.2008 in the original written statement. The respondents-defendants moved I.A before commencement of the trial seeking amendment of the written statement. By way of the proposed amendment, the respondents-defendants while admitting the agreement of sale explained the circumstances under which the agreement came into existence. The proposed amendment does not in any way prejudice the rights of the plaintiff. The trial Court considered the material brought on record in a right perspective and exercised the discretionary power properly in allowing the amendment application filed by the respondents-defendants. There is no irregularity or illegality warranting interference of this Court in the order impugned in the revision in exercise of powers under Article 227 of the Constitution of India. 17. The revision fails and accordingly, the same is hereby dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.27-07-2011 Note:- L.R copy to be marked (B/o) *RAR [1] 2003-ALT-3-374 [2] (2009) 10 Supreme Court Cases 84