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2018 Supreme(All) 2071
ALLAHABAD HIGH COURT
BEFORE : MRS. SUNITA AGARWAL, J.
TEJ BAHADUR AND OTHERS ....Petitioners
Versus
FASIUDEEN AND OTHERS ....Respondents
(Civil Misc. Writ Petition (Matters Under Article 227) No. 8315 of 2018, decided on 17th December, 2018)
Counsel :
Subhash Chandra Tiwari for the Petitioners; Awes Iqbal and Mukhtar Alam for the Respondents.
Headnote:(A) Code of Civil Procedure, 1908 – Order VI, Rule 7 – Amendment – Written Statement – Impermissibility/Permissibility – Suit for declaration of partition – Changes made by Amendment Act 46 of 1999 and Amendment Act 22 of 2002 shall not apply in respect of an amendment of pleading filed prior to commencement of aforesaid provisions – Meaning of ‘pleading’ provided in Order VI, Rule 1 CPC shall be ‘plaint’ or ‘written statement’ – Further words ‘in respect of any pleading filed’ can only be ‘in respect of any plaint or written statement filed’ – Hence it shall be read in relation to date of filing of pleading whether it is a plaint or written statement – Therefore any application for amendment filed after commencement of trial shall not be allowed ordinarily unless Court finds that matter raised therein could not have been placed by party concerned in spite of due diligence prior to commencement of trial. [Paras 21 and 23]
(B) Code of Civil Procedure, 1908 – Order 6, Rule 7 – Amendment – Written Statement – Amendment of written statement was sought at final stage of suit – In written statement while denying rights and share of plaintiffs in suit property plea of adverse possession had been taken – Plea of adverse possession was based on conduct and plea of acquiescence of original owners however by way of proposed amendment defendant sought to add plea of adverse possession by forcible eviction of original owners – Defendants were conscious of fact since beginning that they were claiming their right to share of original owners in suit property on ground of adverse possession and they have led evidence in order to prove same – Thus issue as to how they came in possession of share of original owners is a matter of evidence stage which is over – Proposed amendments sought at advance stage of trial cannot be said to be bonafide – Held trial Court cannot be said to have erred in rejecting amendment with reasoning that in case such an amendment is allowed it may cause delay in disposal of suit and would cause serious prejudice to plaintiffs. [Para 36]
Result; Petition Dismissed.
Hon’ble Mrs. Sunita Agarwal, J.—Heard learned counsel for the parties.
2. In a suit, namely Original Suit No. 92 of 2002 (Fasiudeen and others v. Tej Bahadur and others) instituted on 29.2.2002, seeking declaration for partition of a house (hereinafter referred to as “the suit property”), written statement was filed by petitioners/defendant No. 1, 2, and 4 to 7 on 26.5.2003. The defendant No. 3 had filed a separate written statement on 5.12.2004. The defendant No. 8, who claimed to have stepped into the shoes of the defendant No. 3 and impleaded in the suit, filed his written statement on 5.10.2017. The suit has proceeded and the evidence of both the parties were concluded. At the stage of arguments, an amendment application dated 5.9.2018 was filed by defendant Nos. 1, 2 and 4 to 7 seeking amendment of paragraphs ‘33’, ‘34’ and ‘36’ of the original written statement Paper No. Ka-55 dated 26.5.2003. The amendment application registered as Paper No. 468-A was rejected by the trial Court. The matter was taken up in revision which was dismissed vide order dated 11.10.2018. Both the orders are under challenge in the present petition.
3. Learned counsel for the petitioners/defendants submits that the proposed amendments in the written statement are only explanatory in nature. The averments made in paragraph ‘33’, ‘34’ and ‘36’ of the written statement are sought to be explained by means of amendment. It was not a case where the defendants sought to set up new pleadings or defence by way of amendment, nor it was a case where it could be said that any admission made in the written statement was sought to be withdrawn. The Courts below have committed illegality in rejecting the amendment application on the ground of delay. The Order VI Rule 17 CPC permits amendment at any stage of the proceeding which are necessary for the purpose of determination of the real question in controversy between the parties. The legislature does not imposes any limitation rather left it open for the Court to decide as to whether the proposed amendments are necessary for the purpose of determining the real question in controversy and it is the discretion of the Court to allow amendment before or after the trial or even in appeal.
4. Placing Reliance upon the judgment of this Court in Om Rice Mill v. Banaras State Bank Limited, AIR 2000 All 90, it is submitted that the amendment can be allowed even before delivery of judgment. It is contended that the amendments can be allowed even after the decree is passed, in appeal and cannot be rejected before decision in the trial Court. In such a matter, the question of delay does not arise.
5. Placing the judgments of the Apex Court in Pankaja v. Yellappa, 2004 (6) SCC 415; Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, AIR 2007 SC 1663 and the judgment and order dated 5th May, 2009 in Sushil Kumar Jain v. Manoj Kumar and another, Civil Appeal No. 3236 of 2009, it is contended that in case of amendment of a written statement, the Courts should be liberal in allowing them as there would be no question of prejudice. Even addition of a new ground of defence or substitution or altering a defence or taking inconsistent pleas in the written statement, can also be allowed. If the proposed amendment seeks to only elaborate and clarify the statement made in the written statement, it cannot be rejected on the ground of delay. It is contended that since the suit was instituted prior to insertion of proviso to Order VI Rule 17 CPC by Amendment Act 22 of 2002 (came into force on 1.7.2002), the same would not be attracted to reject the proposed amendments on the ground of delay i.e. having been sought after the commencement of trial.
6. Aid of judgments of Apex Court in State Bank of Hyderabad v. Town Municipal Council, 2007 (1) SCC 765 and Sumesh Singh v. Phoolan Devi, 2009 (12) SCC 689, had been taken to substantiate the said submission.
7. Learned counsel for the respondents, on the other hand, defen
