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2018 Supreme(Jhk) 2603
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Shree Chandrashekhar, J.
Dulwa Devi - Appellant
Versus
Kumar Nalin Singh - Respondent
Writ Petition (Civil) No. 1612 of 2014
Decided On : 03-10-2018
Anand Kumar Pandey, Adv., T.N. Jha, Adv.
The judgment emphasizes the principles of equity, justice, and good conscience underlying Order VI Rule 17 CPC, and the mandatory nature of the proviso to the rule, which allows for an exception in cases where due diligence was exercised and the matter could not have been raised before the commencement of the trial.
Headnote:
Amendment - Civil Procedure - Order VI Rule 17 CPC - The judgment discusses the principles of equity, justice, and good conscience underlying Order VI Rule 17 CPC, and the limitations on the court's power to permit amendments in the pleadings. It highlights the mandatory nature of the proviso to Order VI Rule 17 CPC, which allows for an exception in cases where due diligence was exercised and the matter could not have been raised before the commencement of the trial. The judgment also emphasizes the need for amendments to have a correlation to the initial pleadings and be necessary for adjudicating the real question in controversy.
Fact of the Case:
The plaintiff sought to amend the plaint about 30 years after the suit was instituted to correct a typographical error in the plot numbers mentioned in the registered sale-deed. The defendant objected, citing inordinate delay and the binding nature of the initial pleadings.
Finding of the Court:
The appellate Court permitted the amendment in the pleadings, noting that the correction was necessary to avoid contradiction in the pleadings and the document produced by the plaintiff. The court also imposed a cost of Rs. 10,000 on the plaintiff for the delay.
Issues: The main issue was whether the amendment in the pleadings, sought 30 years after the suit was instituted, should be permitted, considering the principles of equity and justice.
Ratio Decidendi: The court held that the amendment, though delayed, was necessary to avoid contradiction in the pleadings and the document produced by the plaintiff, and therefore, permitted the amendment while imposing a cost on the plaintiff for the delay.
Final Decision: The writ petition was disposed of, and the appellate Court's order permitting the amendment in the plaint was upheld, with the plaintiff being required to pay a cost of Rs. 10,000 to the petitioner.
JUDGMENT
Shree Chandrashekhar, J. - The petitioner who is defendant in Eviction Suit No. 08 of 1984 is aggrieved of order dated 28.02.2014 by which amendment in the plaint has been permitted by the appellate Court.
2. Plea urged on behalf of the defendant is that about 30 years after the suit was instituted, amendment in the plaint cannot be permitted.
3. The learned counsel for the petitioner submits that not only there was inordinate delay in seeking amendment in the plaint, the matter has travelled to this Court previously and while so, the parties must be bound by their initial pleadings.
4. Initially, Eviction Suit No. 08 of 1984 was decreed vide judgment dated 17.08.1985, however, on the petition of the defendant which was registered as Civil Revision No. 378 of 1985 (R) the judgment dated 17.08.1985 passed in Eviction Suit No. 08 of 1984 was set-aside and the matter was remanded back to the trial Judge. Now, the suit has been dismissed and the plaintiff has preferred Eviction Appeal No. 02 of 2012. The plaintiff has laid a claim over the suit property by virtue of a registered sale-deed dated 18.08.1980. The plaintiff has pleaded that he has purchased the house along with the land comprised under Plot Nos. 2461 and 2304 but due to a typographical error in the plaint Plot No. 2465 was wrongly mentioned which now he seeks to amend.
5. The proposed amendments read as under :
"(1) In para no. 1 of the plaint in the fourth line the plot no. 2465 be penned through and in its place plot no. 2461 be written.
(2) In the Schedule of plaint existing plot no. 2464 and 2305 be penned thorough and in its place plot no. 2461 and plot no. 2304 be written.
(3) In the Schedule of the plaint after the word and number Khata no. 3 and before the word within the following word be written.
" Village Redma Tola Belwatika".
6. Order VI Rule 17 CPC which permits amendment in the pleadings at any stage of the proceedings is founded on the principles of equity, justice and good conscience. Order VI Rule 17 CPC provides that the court may permit either party to amend his pleadings at any stage of the proceedings, however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. It provides that if amendment in the pleadings is necessary for the purpose of determining the real question in controversy between the parties, all amendments in the pleadings can be permitted on such terms as the court may deem just and proper. After Order VI Rule 17 CPC was amended by the Code of Civil Procedure Amendment Act, 2002 and a proviso was inserted therein, further limitation has been put on powers of the court to permit amendment in the pleadings. It provides that no application for amendment shall be allowed after the trial has commenced and by now it is well-settled that proviso to Order VI Rule 17 CPC is mandatory. However, proviso to Order VI Rule 17 CPC itself carves out an exception. It provides that if inspite of due diligence the matter could not have been raised by the parties before the commencement of trial, amendment in the pleadings can be permitted. In " Salem Advocate Bar Association, T.N. Vs. Union of India , (2005) 6 SCC 344" , the scope of proviso to Order VI Rule 17 CPC has been discussed by the Supreme Court in the following words:
26. .... "The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."
7. The expression "real question in controversy between the parties" in Rule 17 CPC must be examined in the context of initial pleadings of the parties. It is only such amendment which shall have a co-relation to the initial pleadings of the parties and which is necessary for adjudicating the re
