2011(5) ALL MR 252
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.M. SAVANT, J.

M/S. N.C. Banerjee And Company Vs. Manoj Balkrishna Shah & Ors.

Writ Petition No.3187 of 2011

27th July, 2011

Petitioner Counsel: Mr. A.C. DHARMADHIKARI
Respondent Counsel: Mr. RAJEEV CHHABRA,Mr. N.S. BHATTAD
Other Counsel: Mr. S.V. SIRPURKAR

(A) Civil P.C. (1908) O.6 R.17 - Application for amendment - Merits of amendment - At the stage of consideration of an application for amendment, the merits of the amendment need not be gone into as also the issue of limitation, as also parties can ask for appropriate issues to be framed in that regard at the hearing of the suit. (2009)10 SCC 84 and (2010)9 SCC 384 - Ref. to. (Para 13)

(B) Civil P.C. (1908) O.6 R.17 - Interpretation of Statute - Application for amendment - Procedure is ultimately the hand maiden of justice and cannot be used for oppression of justice - Merely because the amendment application is allowed would not mean that the case of the petitioner is accepted in so far as the amendment is concerned - The petitioner would nevertheless be bound to prove its case by leading evidence etc. AIR 2008 SC 2171 - Ref. to. (Para 14)

Cases Cited:
Rohit Singh and ors. Vs. State of Bihar (Now State of Jharkhand) and ors., (2006)12 SCC 734 [Para 9,14]
Jai Singh and ors. Vs. Municipal Corporation of Delhi and anr., (2010)9 SCC 385 [Para 11,15]
Revajeetu Builders and Developers Vs. Narayanaswamy and sons and ors., (2009)10 SCC 84 [Para 11]
Ashutosh Chaturvedi Vs. Prano Devi and ors., AIR 2008 SC 2171 [Para 15,16]


JUDGMENT

JUDGMENT :- Rule, with the consent of the parties, made returnable forthwith and heard.

2. The above petition takes exception to the order dated 24/6/2011 passed by the 3rd Joint Civil Judge (Jr.Dn.), Nagpur by which order the application for amendment, Exh.46 filed by the petitioner herein, who is the original defendant no.3 in the said suit, came to be rejected.

3. The petitioner herein is the Special Officer appointed by the Supreme Court of India, inter alia, to enlist the properties of Sanchayani Savings and Investment India Ltd. (SSIL for short) and to take proper steps in order to protect the interest of the depositors and investors of SSIL. It appears that whilst the said proceeding was going on in the Supreme Court, the respondent no.1 herein had claimed ownership right in respect of the property, which is the subjectmatter of the above suit, being Plot No.56 out of the layout of the Central Excise Employees Cooperative Housing Society Ltd. (CEEHSL) bearing Khasra No.53/12 and 54/2, admeasuring 521.18 Sq.Mtrs. The Apex Court, therefore, directed the respondent no.1 to file the suit for declaration of his ownership rights in respect of the said property. Pursuant to the liberty granted by the Apex Court, the respondent no.1 herein has filed the suit in question. In the said suit the petitioner herein, who is the defendant no.3, filed its Written Statement as also the Counter Claim. In the context of the issue which arises for consideration in the above petition, it would be relevant to advert to the substantive prayers in the said counter claim, which read as follows:

(A) pass a decree of declaration, declaring that the possession of the plaintiffs over the suit/subject property is illegal, unauthorized and against the interest of SSIL;

(B) pass a decree of mandatory injunction directing the plaintiffs or any person/s acting on their behalf or under them to remove the entire encroachments standing over the subject property and after removal of the same, to handover peaceful and vacant possession of the subject property as described in Paragraph36 above to the defendant No.3;

(C) pass a decree of declaration, declaring that the Deeds, Agreements etc. including dated 18/05/2006 and 14/02/2007 executed in favour of the plaintiffs are illegal, bad in law and ab initio void and are not binding on the defendant no.3 and the claims of the plaintiffs are vitiated by fraud;

(D) pass a decree of permanent injunction restraining the plaintiffs and the defendant No.4 or any person/s acting through or under them from dealing with the subject property in any manner whatsoever; (E) direct the plaintiffs and the defendant no.4 jointly and severally to pay an amount of Rs.7,00,000/to the defendant No.3 towards the cost of litigation and expenses borne before this Hon'ble Court and Hon'ble Supreme Court of India.

4. As can be seen, the main substantive prayer sought by the petitioner is a declaration that the plaintiff's possession over the suit property is illegal and the declaration that the saledeed executed in favour of the plaintiff is illegal and void ab initio and also for direction to handover to the petitioner the possession of the property. The petitioner herein thereafter moved an application numbered as Exh.46 for amendment of the Counter Claim. The basis for the same, according to the plaintiff, was the agreement dated 2/11/1994 executed between the defendant nos.4 and 5 which according to the petitioner is an Agreement of Development as well as that of Sale. By the said Agreement, defendant no.4 had transferred certain rights in favour of defendant no.5, who was the then Development Manager and also was acting as a constituted Attorney of the Company i.e. SSIL. According to the petitioner, the document inter alia discloses that the Agreement was not only that for development but also for the sale of the suit property. Therefore, the petitioner in its counter claim had prayed for reliefs and incidental reliefs on the basis of the Agreement of Sale and which reliefs are in the nature of seeking specific performance of the said agreement for sale dated 2/11/1994. The amendment sought was for incorporating paragraphs 50A, 50B, prayer clauses A1 and B1 in the Written Statement and the Counter Claim. The ground made out in the application seeking amendment was that though the reliefs were sought qua the plaintiff, through inadvertence the reliefs based on the said Agreement of Sale dated 2/11/1994 remained to be prayed for.

5. The said application was opposed on behalf of the respondent no.1 herein by filing a reply. The said opposition was inter alia on the ground that the relief sought by way of amendment is contrary to the main relief in the counter claim and also that the relief is barred by limitation. The respondent no.1 further contended in the said reply that since the trial of the suit has already commenced, the amendment could not be permitted. It was denied by the respondent no.1 that by way of agreement dated 2/11/1994, the defendant no.4 has transferred certain rights in the name of the respondent no.5, who was the constituted Attorney of SSIL.

6. The said application for amendment of the Written Statement and Counter Claim was considered by the learned 3rd Joint Civil Judge (Sr.Dn.), Nagpur and, as indicated above, by the impugned order dated 24/6/2011, the said application has been rejected. The rejection is inter alia for twofold reasons namely; that the amendment could not be permitted after the trial has commenced as postulated in Order 6 Rule 7 of the C.P.Code and the amendment seeking prayer against the codefendant was not permissible. The Trial Court has also recorded a finding that the petitioner has not satisfied the test of due diligence, which is the sine quo non for permitting any amendment, more especially after the trial has commenced.

7. Heard the learned counsel for the parties.

8. The learned counsel Shri Dharmadhikari appearing for the petitioner contended that the petitioner is acting in his capacity as the Special Officer to protect the interest of the Investors and Depositors of the SSIL and in such capacity it is obligatory on the part of the petitioner to enlist all the properties of the said Company and in that context that the application for amendment to the Counter Claim was required to be filed. The learned counsel contended that in the Counter Claim, as originally filed, though reliefs have been claimed against the plaintiff, in asmuch as a declaration is sought as regards the possession of the plaintiff in respect of the suit property, through inadvertence the relief based on the agreement dated 2/11/1994 remained to be incorporated. The learned counsel further contended that the said amendment to the Counter Claim is necessary for a just decision in the suit.

9. In so far as the ground on which the application for amendment was rejected by the Trial Court namely; that a Counter Claim directed against the codefendant is not permissible, the learned counsel for the petitioner placed reliance on the judgment of the Apex Court reported in (2006)12 SCC 734 in the matter of Rohit Singh and ors. Vs. State of Bihar (Now State of Jharkhand) and ors. It has been held by the Apex Court in the said Judgment that the Counter Claim is not maintainable if it is directed solely against the codefendant. It has to be directed against the plaintiff, though incidentally or along with it, it may also claim relief against the codefendant. Relying upon the said judgment, the learned counsel contended that in the Counter Claim, as originally filed, the relief has been claimed against the plaintiff and what has now been claimed against the codefendant no.4 is only the incidental relief of specific performance of the agreement dated 2/11/1994.

10. Per contra, it is submitted by Shri Chhabra, the learned counsel appearing for respondent nos.1 to 6, that the issues have been framed in the suit as long back as on 7/6/2000. The plaintiff i.e. the respondent no.1 has filed affidavit of ExaminationinChief on 15/6/2011 and therefore the trial having been commenced, the application has been rightly rejected by the Trial Court on the said ground. The learned counsel next contended that the petitioner has not satisfied the test of due diligence in asmuch as beyond stating that through inadvertence the reliefs remained to be included in the counter claim, nothing has been stated by the petitioner as to why the said amendment could not be moved earlier. The learned counsel further contended that since there is no error of jurisdiction committed by the Trial Court in rejecting the said application, and therefore this court would not interfere in its writ jurisdiction.

11. In support of the said submission, the learned counsel placed reliance on the judgment of the Apex Court reported in (2010)9 SCC 385 in the matter of Jai Singh and ors. Vs. Municipal Corporation of Delhi and anr. The Apex court has held that the High Court should be loath to exercise its writ jurisdiction and should not act lightly or liberally as an appellate court and reappreciate the evidence. The learned counsel in support of his submission based on Order 6 Rule 17 of C.P.Code relied upon the judgment of the Apex Court reported in (2009)10 SCC 84 in the matter of Revajeetu Builders and Developers Vs. Narayanaswamy and sons and ors. The Apex Court in the said judgment has laid down the basic test; namely whether the amendment is necessary for determination of the real question in controversy or for proper and effective adjudication of the case. The court has to consider the potentiality of prejudice or injustice which is likely to be caused to the other side by the amendment.

12. Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions.

13. In the instant case, it is pertinent to note that in the counter claim, as originally filed, the petitioner herein, who is the defendant no.3 to the said suit, has inter alia claimed substantiative reliefs as regards the possession of the property in question by the petitioner and by the amendment to the Counter Claim what is claimed is the specific performance of the agreement in question. It will have to be borne in mind that the Apex Court has appointed the petitioner as a Special Officer to protect the interest of the depositors and the investors and it is towards that end that the petitioner has to conduct itself so that the interest of the depositors and investors is adequately protected. No doubt, the respondent no.1 herein was granted liberty by the Apex Court to file the suit in question claiming declaration in respect of his ownership rights qua the subjectmatter of the suit i.e. the property in question. The petitioner has in the said suit filed its counter claim wherein, as indicated above, substantiative reliefs have been sought qua the possession of the respondent no.1. Now, what is sought by the counter claim is the relief of specific performance of the agreement dated 2/11/1994 which is purportedly executed by the respondent no.4 in favour of the respondent no.5. The averements which are now sought to be introduced in the counter claim and the reliefs sought to be claimed on the said basis, are based on the said agreement dated 2/11/1994. The relief of specific performance of the said Agreement of Sale has been claimed by the petitioner by way of amendment. The petitioner would be failing in its duty as a Special Officer if it had not asked for the reliefs which it is now seeking by way of amendment. It is trite that at the stage of consideration of an application for amendment, the merits of the amendment need not be gone into as also the issue of limitation, as the parties can ask for appropriate issues to be framed in that regard at the hearing of the suit. Hence, the contentions as regards the subject matter of the amendment being barred by limitation etc. need not be gone into, unless it can be ex facie seen that it is barred by limitation, the court considering an amendment application need not be detained in considering the application for amendment on the said ground.

14. In so far as the aspect as to whether the amendment application could have been allowed, as the issues have been framed and the affidavit of evidence has been filed, in my view, though the test of due diligence is to be satisfied by a party seeking an amendment and though, in the instant case, the Trial Court has recorded a finding that the petitioner has not satisfied the said test as beyond stating that due to inadvertence the said amendment could not be moved nothing has been stated, in my view, considering the capacity in which the petitioner is prosecuting the said suit, some indulgence is required to be shown to the petitioner and therefore a highly technical approach should be eschewed, as, ultimately, the petitioner is acting only in furtherance of the interest of the investors and the depositors and to see to it that every property to which it could lay a claim is listed. It is well settled that procedure is ultimately the hand maiden of justice and cannot be used for oppression of justice. It is also required to be noted that merely because the amendment application is allowed would not mean that the case of the petitioner is accepted in so far as the amendment is concerned. The petitioner would nevertheless be bound to prove its case by leading evidence etc. It is further required to be noted that in the instant case though the affidavit of evidence of examination-in-chief has been filed by the plaintiff, the suit has not travelled beyond that and it is at that stage the instant application, Exh.46 for amendment came to be filed. It is, therefore, not as if that there has been a gross delay on the part of the petitioner in filing the said application. The test of the matter as enunciated by the Apex Court in the judgment in Revajeetu Builders and Developers (supra) is as to whether such an amendment is necessary for determination of the real question in controversy or for proper and effective adjudication of the case. Looking from that angle, in my view, the amendments in the instant case are required to be allowed for a just decision in the case. It is also required to be noted that the defendant no.4 against whom the relief of specific performance is sought has not objected to the amendment application. As regards the ground which has been held against the petitioner namely that a Counter Claim against a codefendant is not maintainable, in view of the judgment of the Apex Court in Rohit Singh case supra, the said ground would not survive in the instant case as can be seen the petitioner has in the Counter Claim as originally filed claimed the substantive relief of declaration against the Respondent no.1 as regards his possession in respect of the suit property, it is by way of amendment that a prayer is now sought against the Defendant no.4 of Specific Performance of the agreement. Therefore, the ratio in Rohit Singh's case supra would cover the petitioner's case.

15. In so far as the judgment cited by the learned counsel for the respondent nos.1 to 6 i.e. in the case of Jai Singh and ors. (supra) and AIR 2008 SC 2171 in the matter of Ashutosh Chaturvedi Vs. Prano Devi and ors., in my view, in the facts and circumstances of the present case wherein the petitioner is the Special Officer appointed by the Apex Court, that the applicability of the said judgments would have to be considered. In so far as the judgment in Jai Singh and ors. is concerned, the facts before the Apex Court were that the concerned High Court had entertained the petition filed in the year 2007 which was unconsciounably belated as the said Writ Petition was filed challenging the orders dated 11/11/1989 and 12/3/2007, it is in the fact situation of the said case that the Apex Court has observed that the High Court cannot act lightly or liberally as appellate court and reappreciate the evidence in its writ jurisdiction.

16. In so far as the Judgment in Ashotosh Chaturvedi's case (supra), the amendment application in the said case was filed after thirteen years and in the said fact situation the Apex Court has held that the reason given by the High Court for allowing the amendment cannot be countenanced. In the fact situation of the present case, in my view, therefore the said judgments would have no application.

17. In that view of the matter, the impugned order dated 24/6/2011 passed by the 3rd Joint Civil (Sr.Dn.), Nagpur would have to be quashed and set aside and resultantly application, Exh.46 for amendment of the Counter Claim filed by the petitioner herein i.e. the defendant no.3 would have to be allowed. It would be open for the respondent nos.1 to 6 to file their additional written statement to the Counter Claim, if so advised.

Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.

Petition allowed.