IMPORTANT POINT
Amendment in plaint – Delay in filing application for amendment by itself cannot be a ground for rejecting application.

JUDGMENT

Manish Kumar Nigam, J.—Heard Shri Ashok Kumar Shukla, learned counsel for the petitioner, Shri Vivek Singh Shrinet, learned counsel for the respondent and perused the record.

2. This petition has been filed challenging the order dated 16.11.2022 passed by the trial court i.e. Additional Civil Judge (Junior Division), Court No. 3, Gorakhpur, rejecting the application for amendment filed by the petitioner in the plaint. Revision against the said order has also been dismissed by order dated 10.04.2023 passed by the Additional District and Sessions Judge, Court No. 4, Gorakhpur in Civil Revision No. 124 of 2022.

3. Contention of the learned counsel for the petitioner is that by the amendment, the petitioner has only changed the relief from mandatory injunction directing the defendants to remove their constructions and to hand over the possession to the plaintiff to the prayer for possession of the property in dispute apart from minor corrections in the plaint. The said application has been erroneously rejected on the ground that the application has been filed after a long lapse of time and therefore, the same cannot be allowed.

4. Learned counsel for the respondent submitted that in view of the proviso to Rule 17 of Order 6 such amendment cannot be allowed. He further submitted that the proposed amendment will change the nature of the suit.

5. I have perused the order impugned. The relief claimed by the petitioner in the plaint which is at page no.33 of the paper book is quoted as under:

(Matter in other Language)

6. The said relief has been sought to be substituted /amended by the relief as quoted in the amendment application at page no. 39 and the same is quoted as under:—

(Matter in other Language)

7. I do not find any change in the nature of the suit as the relief in substance is same.

8. So far as the contention of the learned counsel for the petitioner that in view of proviso to Rule 17 of Order 6, the said amendment could not be allowed, is also misconceived. The suit is of the year 1997 which is pre amendment and therefore, amended proviso will not apply to the suit in view of the judgment of the Apex Court in case of State Bank of Hyderabad v. Town Municipal Council reported in (2007) 1 SCC 765. Paragraph nos. 5, 6, 7, 8 & 9 of the aforesaid judgment are quoted as under:

“5. 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.”

6. 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.”

7. 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;”

8. 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.

9. The High Court reli