CRP 452/2009 BEFORE THE HON’BLE MR. JUSTICE I.A. ANSARI This application, made under Article 227 of the Constitution of India, puts to c hallenge the order, dated 25.11.2009, passed by the learned Civil Judge No.2, Ka mrup, Guwahati, in Misc. (J) Case No.245/2009, arising out of Title Suit No.171/ 2006, whereby the defendant-petitioners’ petition for amendment of their written statement has been rejected. 2. I have heard Mr. GN Sahewalla, learned Senior counsel, for the defendant -petitioners, and Mr. S. Ali, learned counsel, for the plaintiff-opposite party. 3. It may be pointed out, at the very outset, that according to the plaint, the plaintiff-opposite party purchased as many as three pieces of land on diffe rent dates, one of such pieces of land having been purchased by the plaintiff fr om its owner, Gaur Mohan Das (since deceased). The said pieces of land, being ad jacent to each other, form a compact plot with common boundaries described in Sc hedule A to the plaint. The plaintiff, upon purchase of the land by registered s ale deeds, took possession of the purchased land, which measures about 1 bigha a nd 2 kathas out of the total land covered by the same patta. Alleging, inter ali a, that the plaintif had been ousted from a part of the land, described in Sched ules B and C to the plaint, the plaintiff sought for a decree of, inter alia dec laration of his rights, title and interest over the land described in schedule A to the plaint and for recovery of possession of the land described in Schedules B and C including the Assam Type house standing thereon. 4. It may also be pointed out that the defendant-petitioners, on receipt of summons of the suit, appeared and contested the suit by filing their written st atement on 22.11.2006. In paragraph 8 of their written statement, the defendants alleged that the sale deed, being No.1834/97, dated 03.04.1997, on which rested the plaintiff’s claim of having purchased the land from Gaur Mohan Das (since d ead), was a fraudulent document as Gaur Mohan Das, the original pattadar, died b efore execution of the said sale deed. 5. However, after the evidence, adduced by both sides, stood recorded, the defendants took adjournments for presenting arguments and, having, thus, taken t ime for offering their arguments, the defendant-petitioners filed a petition, se eking amendment of their written statement by contending to the effect that they had recently obtained certified copies of two sale deeds, being sale deed No.74 61/1983, dated 30.09.1983, and sale deed No.7462/1983, dated 30.09.1983, execute d in favour of N. Ibotombi Singh and Lais Ram Nanda Kumar Singh respectively and , thus, the said Gaur Mohan Das had sold his land long before the alleged fraudu lent sale deed, dated 03.04.1997, in respect of the suit land, whereby the plain tiff claims to have purchased the suit land, and, hence, necessary amendments ne ed to be incorporated in paragraph 8 of the written statement, the amendments, s ought for, being as under: It is further stated that Gaur Mohan Das sold his said suit land by two sale de eds being 7461/83 dated 30.09.83 and 7462/83 dated 30.09.83 claimed by the plain tiff and as such how he (Gaur Mohan Das) could have sold the same land to the pl aintiff? 6. In their above petition made under Order VI Rule 17 read with Section 15 1 of the Code of Civil Procedure seeking amendment, the defendant-petitioners fu rther stated that the proposed amendment will, in no way, change the nature and character of the suit and the plaintiff would not be prejudiced in any manner if the amendment, sought for, is allowed. 7. Resisting the above petition for amendment, the plaintiff-petitioner fil ed his objection, wherein a specific averment was made, in para 5, that the fact s, sought to be incorporated by the defendant-petitioners by way of their amendm ent, were within the knowledge of the defendants long before filing of their wri tten statement and that the amendment petition suffers from mala fide and is int ended to delay the proceeding. 8. At no stage, the defendant-petitioners denied that the plaintiff-opponen ts party’s assertion that the facts, which the defendants had sought to incorpor ate by way of amendment, were within their knowledge before they had obtained th e certified copies of the said two sale deeds. In the face of absolute silence o f the defendants in this regard, it logically follows that even before filing of their written statement, it was within the knowledge of the defendants that the said Gaur Mohan Das had executed the said two sale deeds, in respect of the sai d land, in favour of the vendees aforementioned. Whether, as a matter of fact, G aur Mohan Das had executed the said sale deeds and/or sold the said land are que stions, which are not to be decided in this revision. What is important to note is that apart from the fact that the defendants, nowhere, asserted in their peti tion, seeking amendment, that they were not aware of existence or execution of t he two sale deeds or about the factum of sales of the land, in favour of the ven dees aforementioned, by Gaur Mohan Das, long before they filed their written sta tement, it is also not the case of the defendants that they had come to know onl y upon receiving the certified copies of the said two sale deeds about the sales of the land by Gaur Mohan Das. Furthermore, and as rightly pointed out, on beha lf of the plaintiff, that the land, owned by Gaur Mohan Das and covered by the r elevant dag and patta, was, admittedly, more than what the plaintiff claimed to have purchased. 9. It is also worth noticing that the suit was instituted on 22.08.2006 and the written statement was filed on 22.11.2006. Issues were framed on 15.02.2007 . After evidence from both sides stood closed and the case was fixed for argumen t, the defendants obtained adjournment for offering their arguments on 26.08.200 9 and 28.10.2009 and, having so obtained adjournment on 28.10.2009, they, admitt edly, applied for certified copies of the said two sale deeds on 28.10.2009 and they obtained certified copies on 30.10.2009 and it was on 04.11.2009 that they filed their petition seeking to make amendment in their written statement. 10. In the amendment petition, apart from the fact, as already indicated abo ve, that the plaintiffs had not contended that at the time, when they had filed their written statement, they were not aware of the facts, which they, now, seek to incorporate, with the help of amendment, in their written statement, there w as not even an attempt, in their petition for amendment, to explain as to why th ey had not applied for amendment earlier. It was in such circumstances that the learned trial Court has rejected the petition for amendment. The relevant observ ations, made by the learned trial Court, read as under: That apart, no satisfactory grounds raised in the amendment application to cont end that despite due diligence the said matter could not be raised by the applic ant. Merely stating said defendants recently obtained certified copy of two sale deeds being No.7461/83 dated 30.09.83 and 7462/83 dated 30.09.08 in respect of the suit land claimed by the plaintiff is without supporting particulars that th e amendment application could not be submitted before the commencement of the tr ial in spite of taking utmost care. I think is not sufficient grounds for amendm ent of the written statement. 11. As the controversy, raised in this revision, relates to Order VI Rule 17 of the Code of Civil Procedure, which embodies provisions as regard amendment, it is appropriate to take note of the provisions embodied therein. Order VI Rule 17 is, therefore, reproduced hereinbelow: 17. Amendment of pleadings. - The court may, at any stage of the proceedings, a llow either party to alter or amend his pleading in such manner and on such term s 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 diligen ce, the party could not have raised the matter before the commencement of trial. 12. There is no dispute that an amendment of pleadings can be allowed if the ame ndment, sought for, does not change the nature or character of the proceedings i n a given case and/or the amendment, sought for, would help in the resolution of the real controversy in a suit. When, however, hearing of a suit has already co mmenced and an amendment, sought for, is of such a nature that it would, if allo wed, not change the nature or character of the suit or even when amendment is fo und to be necessary for determination of the real controversy in a suit, the leg islative intent, as reflected by the proviso to Rule 17, is that such an amendme nt shall not be allowed unless the Court comes to a conclusion that in spite of due diligence, the party, seeking amendment, could not have sought for the amend ment before the trial commenced. In other words, after a trial commences, no ame ndment, even if necessary for resolution of a controversy in a suit, can be allo wed by a Court unless it comes to a finding that in spite of due diligence, the party, which has applied for amendment, could not have raised the matter before commencement of the trial. 13. In order to appreciate the legislative intent behind the presently amended O rder 6 Rule 17, a survey of the legislative history behind the amendments, which Order 6 Rule 17 have undergone, is necessary. It is pertinent to note in this r egard that the Justice Malimath Committee’s recommendations reflected that the p rovisions, contained in Order 6, Rule 17, allowing amendments, were delaying dis posal of suits. With a view to deal with this situation, the legislature, while enacting the Code of Civil Procedure (Amendment) Act, 1999, deleted Rule 17 of t he Code in its entirety. 14. With the deletion of Rule 17 as mentioned above, no amendment of any ple ading, at any stage of the suit, became legal or feasible. This was followed by serious resistance by men in law all over the country. Responding to the agitati on against complete deletion of the provisions of Rule 17, the legislature, with the help of Code of Civil Procedure (Amendment) Act, 2002, restored Order 17 by re-recognizing power of the Courts to grant amendment, but exercise of this pow er was restricted by adding a new proviso. This legislative intent in adding the proviso to Rule 17 is more than transparent, the intent being that after the tr ial commences, no amendment shall be allowed even if such an amendment is necess ary for resolution of the real controversy in the suit or even if the amendment is such, which would not change the nature or character of the proceeding, unles s the person, who applies for such an amendment, convinces the Court ? before it (Court) considers the nature of the amendments sought for ? that in spite of du e diligence, he could not have sought for the amendments earlier. A reference, i n this regard, may be made to the case of Ajendraprasadji N. Pandey and Ors. Vs. Swami Keshavprakeshdasji N. and Ors. , reported in (2006) 12 SCC 1, wherein the Apex Court has observed as under : \42. It is to be noted that the provisions of Order 6, Rule 17 CPC have been sub stantially amended by the CPC (Amendment) Act, 2002. 43. Under the proviso, no application for amendment shall be allowed after the t rial has commenced unless in spite of due diligence, the matter could not be rai sed before the commencement of the trial. It is submitted that after the trial o f the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the reco mmendation of the Law Commission since Order 17, as it existed prior to the amen dment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amendin g Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesita tion all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored b y recognizing the power of the court to grant amendment; however, with certain l imitation, which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show tha t the matters which are sought to be raised by way of amendment by the appellant s were well within their knowledge on their court case and manifests the absence of due diligence on the part of the appellants disentitling them to relief. \ 15. In Ajendraprasadji N. Pandey and others Vs. Swami Keshavprakeshdasji N. and others, reported in (2006) 12 SCC 1, the Apex Court has observed at para 58 thus: 58. The judgment of the High Court recording concession by counsel for the defe ndant reads thus: 22. However, when one examines the facts of the case, and applies (sic) that th e conduct of the defendants goes to show that the exercise, namely, filing of ap plication, Ext. 95, is directly in conflict with the object of the amendment i.e . to adopt a dilatory tactic. It is admitted by learned Senior Advocate appearin g on behalf of the defendants that all the issues raised by way of proposed amen dment in the written statement were taken before this Court in the appeal from o rder filed by the present defendant in the civil appeal filed before the Apex Co urt, in the appeal from order in the second round before this Court and again in a special leave petition filed before the Apex Court in the second round. Hence , the defendants cannot plead absence of knowledge after exercise of due diligen ce. If this be the position the approach adopted by the trial court cannot be st ated to suffer from any infirmity so as to call for intervention at the hands of this Court in a petition under Article 227 of the Constitution of India. 16. At yet another place, at para 60, taking note of the fact that the amend ment was sought to be made after hearing of the suit had already commenced and t here was not even a plea that despite due diligence, amendments sought to be inc orporated, could not be made earlier, the Apex Court observed: The above averment, in our opinion, does not satisfy the requirement of Order V I Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kail ash vs. Nankhu & Ors. (supra), the trial is deemed to commence when the issues a re settled and the case is set down for recording of evidence. 17. What emerges from the above discussion is that the proviso to Order 6 Rule 17 clearly shows that no application for amendment can be allowed by any Court a fter the trial has commenced unless the Court comes to the conclusion that in sp ite of due diligence, the party, which applies for amendment, could not have pre ssed for the amendment before the trial commenced. If the amendment, which a par ty seeks to introduce, will change the nature or character of the proceeding, su ch an amendment, it is not in dispute, cannot be allowed at all. Similarly, if t he amendment, which a party seeks to introduce, is not necessary for determinati on of the real controversy in the suit, such an amendment too may not be allowed . This clearly shows that the proviso, in question, would come into play even if a person makes out a case that the amendment, which is sought to be introduced, will not change the nature or character of the proceeding and/or that the amend ment is necessary for resolving the real controversy in the suit between the par ties concerned. It is not in dispute that trial of a suit commences when the iss ues, in a suit, are settled and the suit is fixed for hearing. (See Kailash Vs. Nanhku, reported in (2005) 4 SCC 480). In the present case, the evidence of the parties already stands recorded. 18. The question, now, is as to whether it is possible to allow an amendment, ev en after commencement of a suit, by taking resort to the inherent power of the C ourts as contained in Section 151 of the Code. It needs to be noted in this rega rd that the inherent powers, as contained in Section 151 of the Code, can be exe rcised by a Court to make such orders as may be necessary for the ends of justic e or to prevent abuse of the process of the Court and not when exercise of such a power is prohibited by the legislature. The proviso to Rule 17 clearly shows t hat the legislative intent is that after hearing of a suit commences, no amendme nt of pleadings shall be allowed, however necessary such an amendment may be, un less the party, which seeks to make amendment, satisfies the Court that he could not have earlier applied for such an amendment. By taking recourse to its inher ent powers, a Court cannot defeat this legislative intent inasmuch as the inhere nt power has to be exercised to enforce the object of a legislation and not to d efeat the same. 19. I have carefully gone through the application seeking amendment and I notice that the defendants did not give even faintest of indication, in their petition for amendment, as to why they had not incorporated in their written statement w hat they have, now, sought to introduce, by way of amendment, to their written s tatement, particularly, when the plaintiff-opposite party has resisted the amend ment petition by asserting that the amendments, sought to be introduced, were wi thin the knowledge of the defendants long before the written statement was filed . 20. Mr. Sahewalla has placed reliance on two decisions of the Supreme Court in support of his submission that since the amendments, sought for, are necessar y for determination of the real issues in the suit, the amendments ought to have been allowed, the two decisions being Revajeetu Builders and Developers Vs. Nar ayanaswamy and sons and others, reported in (2009) 10 SCC 84, and Surender Kuma r Sharma Vs. Makhan Singh, reported in (2009) 10 SCC 626. 21. Let me, first, deal with Revajeetu Builders and Developers (supra). Whil e considering the case of Revajeetu Builders and Developers (supra), what needs to be noted that there is no observation at all, in Revajeetu Builders and Devel opers (supra) that the amendments were sought to be made after hearing of the su it had already commenced. It is, therefore, clear that the decision, in Revajeet u Builders and Developers (supra), has no application to the facts of the presen t case, when the case at hand is one, wherein the amendments have been sought to be introduced after evidence of the parties to the suit already stands recorded . The observations of the Apex Court, in Revajeetu Builders and Developers (supr a), at para 35, need to be read in the context of the facts of the said case, wh erein the Apex Court has held that the general principle is that courts at any s tage of the proceedings may allow either party to alter or amend the pleadings i n such a manner and on such terms as may be just and all those amendments must b e allowed which are imperative for determining the real question in controversy between the parties and that these basic principles of grant or refusal of amend ment, articulated almost 125 years ago, are still considered to be correct state ment of law and our Courts have been following the basic principles laid down in those cases, but the said case was one, as indicated hereinbefore, wherein amen dments were sought to be introduced before commencement of the suit and not afte r the evidence of both sides stood recorded. 22. The Apex Court had pointed out, in Revajeetu Builders and Developers ( supra), the factors, which shall be taken into consideration, while dealing with an application for amendment. The relevant observations, made in this regard, R evajeetu Builders and Developers (supra), read as under: 63. On critically analyzing both the English and Indian cases, some basic princ iples emerge which ought to be taken into consideration while allowing or reject ing the application for amendment: (1) whether the amendment sought is imperative for proper and effective adju dication 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 ca nnot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple l itigation; (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 o n 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 application under Order 6 Rule 17. These are only illustrative and not exhaustiv e. 23. Though the factors, which the Apex Court has enumerated in Revajeetu Bui lders and Developers (supra), are illustrative and not exhaustive, the fact rema ins that the factors, which have been enumerated by the Apex Court, do not make any reference to the proviso to Order VI Rule 17 read with Section 151 CPC, the reason being that the amendment, in Revajeetu Builders and Developers (supra), had not been sought after hearing of the suit had commenced and the proviso to O rder VI Rule 17 read with Section 151 CPC had come into play. To the facts of th e case, therefore, the decision, in Revajeetu Builders and Developers (supra), h as, if I may reiterate, no application. 24. Coming to the case of Surender Kumar Sharma (supra), it needs to be note d that even in this case, the Apex Court has not dealt with the proviso to Order VI Rule 17 read with Section 151 CPC. There is also no indication that the amen dment had been sought after the Code of Civil Procedure (Amendment) Act, 2002, h ad already come into force and the proviso to Order VI Rule 17 already stood ena cted. This apart, the Apex Court, while considering the case of amendment, point ed out that even if the amendment, sought for, is belated, the court must bear, while considering such belated amendment, that it must allow amendment if amendm ent sought for will do full and complete justice to the case and the party, agai nst whom the amendment is sought for, can be compensated by cost or otherwise.