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SUPREME COURT OF INDIA
C.T. RAVIKUMAR, RAJESH BINDAL, JJ.
Basavaraj - Appellant
Versus
Indira and Others - Respondents
Civil Appeal No. 2886 of 2012
Decided On : 29-02-2024
(A) Civil Procedure Code, 1908 – Order VI Rule 17 – Amendment of plaint – Partition suit – No application for amendment shall be allowed after trial has commenced, unless Court comes to conclusion that in spite of due diligence, party could not have raised the matter before commencement of trial – Burden is on party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier – Application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes fundamental character of suit – In case in hand, this is not even pleaded case of respondents before Trial Court in application for amendment that due diligence was there at the time of filing of suit in not seeking relief prayed for by way of amendment – All what was pleaded was oversight – Same cannot be accepted as a ground to allow any amendment in pleadings at fag end of trial especially when admittedly facts were in knowledge of respondents/plaintiffs – Initially, suit was filed for partition and separate possession – By way of amendment, relief of declaration of compromise decree being null and void was also sought – Same would certainly change nature of suit which may be impermissible – If amendment is allowed in case in hand, certainly prejudice will be caused to appellant – This is one of important factors to be seen at the time of consideration of any application for amendment of pleadings – Any right accrued to opposite party cannot be taken away on account of delay in filing application – Impugned order passed by High Court set aside and application filed for amendment of plaint dismissed. (Paras 8, 9, 10, 12 and 14)
(B) Civil Procedure Code, 1908 – Order XXIII Rules 3 and 3A and Section 96(3) – Compromise decree – Challenge as to – No appeal is maintainable against a consent decree having regard to specific bar contained in Section 96(3) CPC – No independent suit can be filed for setting aside a compromise decree on the ground that compromise was not lawful in view of bar contained in Rule 3A – A consent decree operates as an estoppel and is valid and binding unless it is set aside by court which passed consent decree, by an order on an application under proviso to Rule 3 of Order 23 – Court which recorded compromise will itself consider and decide question as to whether there was a valid compromise or not – Consent decree is nothing but contract between parties superimposed with seal of approval of court – Validity of a consent decree depends wholly on validity of agreement or compromise on which it is made. (Para 7)
Facts of the case:
Respondents No. 1 and 2 filed suit for partition of ancestral property belonging to their grand father. Vide impugned order passed by High Court, application filed by respondents No. 1 and 2/plaintiffs for amendment of plaint was allowed subject to costs of ?2,000/-.
Findings of Court:
Appellant shall be entitled to cost of the proceedings, which are assessed at ?1,00,000/- to be paid jointly or severally by respondents No. 1 and 2. Appellant shall be paid the amount of cost on the next date of hearing before Trial Court by way of demand draft.
Result : Appeal allowed.
Key Points: - Amendment of plaint after trial commencement is not allowed unless the court is satisfied that in spite of due diligence, the party could not have raised the matter before commencement of trial (!) (!) (!) . - No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful (!) (!) . - A consent decree operates as an estoppel and is valid and binding unless set aside by the court which passed it, on an application under the relevant provision (!) (!) .
JUDGMENT :
Rajesh Bindal, J.
1. Vide impugned order,1[Order dated 18.08.2010 passed in W.P. No. 82086 of 2010] passed by the High Court,2[High Court of Karnataka, Circuit Bench at Gulbarga], an application filed by respondents No. 1 and 2/plaintiffs for amendment of the plaint was allowed subject to costs of Rs.2,000/-.
2. Briefly, the facts available on record are that respondents No. 1 and 2 filed a suit,3[Original Suit No. 151 of 2005] for partition of the ancestral property belonging to their grand father pleading that no actual partition of the property has ever taken place. When the suit was at the fag end, an application was filed by respondents No. 1 and 2 seeking amendment of the plaint. The amendment sought was to add prayer in the suit for a declaration that an earlier compromise decree dated 14.10.2004 was null and void. As prayer was not made earlier, the court fee required thereon was also sought to be affixed. The ground on which the amendment was sought was that due to oversight and mistake, the respondents No. 1 and 2/plaintiffs were unable to seek the relief of declaration. No prejudice as such would be caused to the defendants as limited relief is for fair partition of the ancestral property. The Trial Court,4[First Additional Civil Judge (Senior Division) at Gulbarga] dismissed the application. However, when the order,5[Order dated 31.05.2010] was challenged before the High Court, the same was set aside and the amendment prayed for by the plaintiffs was allowed subject to payment of costs.
3. Learned counsel for the appellant submitted that in the case in hand, there was a family partition in Original Suit No. 401 of 2003 filed by Smt. Mahadevi and Smt. Sharnamma, wife and daughter-in-law respectively of defendant No.1/Shivasharnappa, impleading the plaintiffs and the defendants as party. A compromise decree dated 14.10.2004 was passed by the Lok Adalat, District Legal Services Authority, Gulbarga. Thereafter, respondents No. 1 and 2 filed a fresh suit in 2005 seeking partition of the ancestral property. Though in the suit pleading was there with reference to the earlier compromise decree, however for the reasons best known to the plaintiffs, no challenge was made to the same. As a result of the order passed by the High Court, the nature of the suit was changed from partition to declaration, which is impermissible.
3.1 Further in terms of proviso to Order VI Rule 17 CPC, no amendment could be allowed after commencement of the trial. In the case in hand, the suit was at the fag end, as fixed for arguments.
3.2 It was further submitted that the compromise decree was passed on 14.10.2004. In terms of the provisions of Order XXIII Rule 3 CPC, the same could be challenged only before the same Court and not before any other Court.
3.3 He further contended that there was a specific stand taken by the appellant/defendant No. 2 in the written statement that there being a compromise decree in existence, no relief may be admissible to respondents No. 1 and 2, unless that decree is challenged. The written statement was filed in August 2005, still no steps taken by the respondents No. 1 and 2 in that direction. Part of the suit property having been sold, an amendment was carried out in the plaint in July 2006 to implead the subsequent purchaser. Even at that stage, this relief was not sought.
3.4 It was further contended that the relief of declaration of compromise decree being null and void prayed for by way of amendment otherwise also was time barred as the compromise decree was passed on 14.10.2004. The application for amendment was filed on 08.02.2010. Even the court fee was sought to be affixed at the time of filing of application for amendment.
3.5 The application filed by respondents No. 1 and 2 did not meet the pre-conditions laid down in Order VI Rule 17 CPC for permitting respondents No. 1 and 2 to amend the pleadings at the fag end of the trial. No due diligence was pleaded. All what was stated was that there was over
The main legal point established in the judgment is that the amendment of pleadings under Order VI Rule 17 of the CPC should be allowed only if it is necessary to determine the real issue in controve....
A proposed amendment to a plaint can be allowed if it aids in establishing a party's claim and does not fundamentally change the character of the suit, aligning with principles of justice.
A party aggrieved by a compromise decree has a right to challenge the compromise decree by way of an appeal or to approach the same court which passed such decree by way of an appropriate application....
The court upheld the ruling that amendments to pleadings are permissible to facilitate just adjudication without injustice, reaffirming established principles governing such applications under the Co....
(1) Amendment of plaint – At stage of amendment, merits or correctness of plea sought to be added is not required to be gone into.(2) Amendment of plaint – Partition suit – Mere delay in filing petit....
Amendments to pleadings in partition suits should be liberally allowed to ensure justice and avoid multiplicity of proceedings, without assessing the merits of the amendment at the initial stage.
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