CIVIL WRIT PETITION NO. 862 OF 2020

3rd March 2020

Petitioner Counsel: Shri H.D. Dangre
Respondent Counsel: Shri R.R. Shrivastav Ms. S.H. Bhatia
Act Name: Code of Civil Procedure, 1908

HeadLine : Amendment of plaint – After commencement of trial – Permissibility

Section :
Section 151 Code of Civil Procedure, 1908

Cases Cited :
Paras 8, 15: M. Revanna Vs. Anjanamma (dead) by legal representatives and others, (2019) 4 SCC 332
Paras 9, 17: G. Nagamma and another Vs. Siromanamma and another, (1996) 2 SCC 25
Paras 9, 18: Ragu Thilak D. John Vs. S. Rahyappan and others, (2001) 2 SCC 472
Paras 9, 20: Surender Kumar Sharma Vs. Makhan Singh, (2009) 10 SCC 626

JUDGEMENT

1. Present petition is filed by the Original Defendant No.2 challenging the order below (Exhibit 77) passed by the learned trial Court thereby allowing amendment application filed by the plaintiff/respondent No.1.

2. Facts in nut-shell leading to this petition are as follows:- The plaintiff/respondent No.1 instituted Special Civil Suit No. 794/2012 seeking declaration that the power of attorney dated 08.04.2008 executed by the plaintiff in favour of the defendant, appended with sale-deeds dated 28.12.2010 and 14.10.2011 is fraudulent, shame, bogus and cancel the same. A declaration that both the sale-deeds are executed by defendant No.1 in favour of the defendant No.2 are void-ab-initio and were created by using forged power of attorney. The suit was resisted by the defendant No.1 by filing written statement. During the pendency of the suit, on 11.4.2013 a Memorandum of Understanding (for short “MOU”),was entered into between the plaintiffs and the defendants. On the basis of the said MOU, the defendant No.1 filed application Exhibit 26 for bringing the MOU on record, and for passing decree in terms of the MOU. The original defendant No.2/petitioner opposed the said application. The learned trial Court rejected application Exhibit 26 vide order dated 2.4.2016.

3. The defendant No.1 challenged the order passed below Exhibit 26 in Writ Petition No. 2461/2017. This Court disposed of Writ Petition No. 2461/2017, directing that MOU be taken on record of the civil suit. This Court, considering that there was dispute between the parties about the terms of the MOU observed that the trial Court will have to examine the rival contentions and the petitioners / plaintiff will be at liberty to adduce the evidence. Hence did not consider prayer clause-III of application Exhibit No.26. The civil suit was directed to be decided till 30.11.2019.

4. Original defendant No.2 filed application Exhibit No.38 under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint for want of cause of action. The said application was opposed by plaintiff. The learned trial Court vide order dated 17.7.2017 rejected the application Exhibit No.38. The said rejection was impugned by the defendant No.2 in Civil Revision Application No 29/2018. The learned trial Court framed issues on 06.02.2019 and the suit was fixed for evidence.

5. This Court disposed of Civil Revision Application No. 29/2018 by modifying the impugned order thereby leaving the contentions raised in application under Order 7 Rule 11 of the Code of Civil Procedure open of the trial Court to decide after the parties adduced evidence. In respect of the submission of the learned counsel for the plaintiff that “the objections raised in the application filed under Order 7 Rule 11 of the Code of Civil Procedure are not supported by the pleadings”, this Court observed that “needless to say, the trial Court would examine and decide the said submission on merits”. The original plaintiff/respondent No.1 filed application Exhibit No.55 for amendment of plaint, which was allowed by the learned trial Court vide order dated 19.09.2019.

6. On 01.10.2019, the plaintiff/respondent No.1 filed affidavit of his examination-in-chief. On 16.10.2019, the learned trial Court framed additional issues. Thereafter, the plaintiff/respondent No.1 on 22.10.2019 filed application Exhibit No. 77 under Order 6 Rule 17 of the Code of Civil Procedure read with Order 8 Rule 9 read with Section 151 of the Code of Civil Procedure for permission to amend the plaint. The said application was opposed by the defendant No.2 stating that since the trial has commenced, the application is not maintainable. The learned Trial Court, however, was pleased to allow the amendment application at Exhibit No.77. The said order is impugned in the present petition.

7. Heard the learned counsel for the petitioner and learned counsel for the respondent No.1/caveator. Perused the grounds raised in the writ petition and the annexures thereto.

8. The learned counsel for the petitioner would urge that since the trial has commenced, the learned trial Court was not justified in allowing the amendment application filed by the plaintiff, no case was made out by the plaintiff for allowing the amendment. The Order-6 Rule 17 of the Code of Civil Procedure expressly bars the amendment after commencement of trial. The prayer for amendment was not bonafide and it would cause prejudice to the defendants. It is urged that the events of 2013-2014 ought to have been brought on record when the plaint was amended in terms of Order below Exhibit No.55. By introducing the prayer Clause 3-C which is in the alternative and without prejudice to the prayers made by the plaintiff, the plaintiff has sought money decree with changes the character of the suit. Due diligence as is contemplated by the proviso 06 and 17 is not pleaded by the plaintiff in the amendment application and the same is also not considered by the learned trial Court. Thus, he contends that the impugned order is liable to be quashed and set aside. In support of his arguments, the learned counsel for the petitioner relied upon the ratio in M. Revanna v/s Anjanamma (dead) by legal representatives and others (2019) 4 SCC 332.

9. The learned counsel for the original plaintiff/respondent No.1, on the other hand, submits that the amendment is already effected and the trial is going on. Now, by pointing out the prayers made in the plaint, he submits that the amended prayer does not change the nature or character of the suit. He would urge that the amendment was rightly allowed by the learned Trial Court which brings on record subsequent developments and events. It is urged that since the defendants have failed to comply with conditions mentioned in the MOU and failed to make payment in terms of the MOU, so also the fact that the plaintiff has complied with the terms of the MOU was sought to be brought on record by way of amendment. He further urges that in view of the observations of this Court in writ petition, this Court was pleased to direct to take MOU on record of the civil suit and the learned trial Court was directed to examine the rival contentions and liberty was given to adduce evidence. In absence of pleadings, adducing the evidence would be of no use. The plaintiff by way of amendment has brought on record, subsequent developments and no new case is introduced. The amendment is necessary to show compliance of the MOU, on the part of plaintiff. He further submits that amended prayer is made in the alternative and it does not change the character of the prayers made earlier. He submits that amendment is necessary to adjudicate the main dispute, therefore he states that the learned trial Court was justified in allowing the amendment application, hence the petition may be rejected. In support of his arguments, the learned counsel for the respondent/caveator No.1 relied upon the ratio in G. Nagamma and another V/s Siromanamma and another (1996) 2 SCC 25, Ragu Thilak D. John V/s S. Rahyappan and others (2001) 2 SCC 472, Surender Kumar Sharma V/s Makhan Singh (2009) 10 SCC 626 and the judgment of this Court (Coram: Manish Pitale, J) in Writ Petition No. 554/2018

10. It is not disputed that during pendency of the suit, MOU was entered into between plaintiff and defendants. On 11.04.2013, the plaintiff filed application Exhibit No.26 with a prayer to record settlement between the parties as per MOU, with a further prayer to pass judgment and decree in terms of MOU. The said application was opposed by defendant contending that the judgment and decree cannot be passed in terms of private settlement, hence, the application is not tenable. The said application was rejected by the learned trial Court vide order dated 11.04.2016. The same was subject matter of Writ Petition No. 2461/2017. The defendant No.2 filed application Exhibit No.38 under Order 7 Rule 11 of the Code of Civil Procedure seeking rejection of plaint for want of cause of action. Even this was rejected by the learned trial Court vide order dated 17.07.2017, against which the defendant No.2 filed Civil Revision Application No. 29/2018. In the writ petition with the consent of parties, the MOU was directed to be taken on record and it was further observed that there is dispute between the parties in terms of MOU. Hence, decree in terms of Order

12 Rule 6 of the Code of Civil Procedure cannot be passed and learned trial Court will have to examine the rival contentions and the petitioner/plaintiff will be at liberty to adduce the evidence. Hence this Court, at that stage, did not grant prayer clause-III of the application Exhibit No.26. Civil Revision Application No. 29/2018 came to be disposed of with similar observations as were made in Writ Petition No. 2461/2017. The impugned order was modified to the extent that the contentions raised in the application under Order 7 Rule 11 were left open for the trial Court to decide after the parties adduce evidence. When learned counsel for the plaintiff submitted that the objections raised in the under Order 7 Rule 11 application are not supported by the pleadings. This Court observed that “needless to say, the trial Court would examine and decide the said submission on merits.”

11. In this background, the application Exhibit No.77 filed by the plaintiff for amendment of his plaint will have to be considered. In the said application, the plaintiff has averred that there is no serious dispute between the parties about the execution of the MOU and with the consent of both the parties, the MOU was taken on record of the suit. In terms of the orders passed by this Court, the trial Court will have to examine the rival contentions and liberty is granted to the parties to adduce evidence. It was therefore, contended that it would be necessary for the plaintiff to make pleadings in this regard, in the plaint, so that evidence in this regard can be dealt with at the time of final adjudication. It is further contended that by way of amendment to the written statement, the defendant No.2 has come up with a case that in view of execution of the aforesaid MOU cause of action has come to an end. The plaintiff wanted to incorporate the relevant pleadings to demonstrate that the plaintiff has in fact complied with the conditions of the MOU and the plaintiff (as per the MOU) is entitled to claim in the alternate, a relief of recovery of the amount payable to him by defendant No.2. It was further stated that it is a matter of record that the defendants have submitted their amended written statement, after the plaintiff has filed affidavit of examinationin-chief. The plaintiff has already claimed relief of setting aside the two sale-deeds dated 02.08.2012 and 14.10.2011 executed by defendant No.1 acting as alleged power of attorney holder of the plaintiff in favour of the defendant No.2. The plaintiff wanted to show the compliance on his part of the MOU and that he is entitled to claim the amount from the defendants in terms of the MOU. It is averred that the plaintiff is entitled to establish on record his entitlement to receive the amount which is claimed by way of proposed amendment. Since, this Court has granted liberty to plaintiff to tender evidence in support of the claim, made in the application Exhibit No.26, the proposed amendment needs to be allowed. No prejudice will be caused to the defendant by the said amendment. The plaintiff has not entered witness box, and as such, the trial has not commenced.

12. The amendment is sought in pursuance of the MOU, which was taken on record with the consent of the parties and in the light of observations of this Court in Writ Petition and Civil Revision Application, the parties are entitled to lead evidence in respect of the MOU. In absence of pleadings, leading evidence would be a futile exercise. The said amendment in no manner changes the character of the reliefs claimed in the suit and the plaintiff is entitled to claim alternate relief which is permissible in law. It is a matter of record, that the plaintiff has already challenged both the sale-deeds and the power of attorney dated 08.04.2008 pleadings in support of the said challenge are already there in the plaint and by the present amendment, the plaintiff has brought on record that he has complied with the terms of the MOU. This amendment does not cause any prejudice to the defendant and therefore liberal approach needs to be adopted while allowing the amendment application.

13. It is a matter of record, Writ Petition No. 2461/2017 is decided on 01.08.2019 and Civil Revision Application No.29/2018 was decided on 26.9.2019. Thereafter, additional issues were framed on 16.10.2019 and amendment application Exhibit No.77 came to be filed on 22.10.2019. Thus, it cannot be said that amendment application was filed belatedly. In view of the fact that this Court has directed the trial Court to take MOU on record to examine the rival contentions of the parties on merits would mean that the parties are entitled to lead evidence in respect of the MOU. Therefore, unless there is a pleading of plaintiff that he has complied with the terms and conditions of the MOU, he cannot lead evidence in support of the same. In that view of the matter, also the proposed amendment was rightly allowed by the learned Trial Court. It is also clear from the record that the defendant has carried out necessary amendment (in respect of MOU) in the written statement. Though, the plaintiff has filed affidavit of examination-in-chief he is yet to enter the witness box. Taking into consideration, the fact that the amendment is already carried out, it would not be proper now to set aside the order passed by the learned trial Court allowing the amendment.

14. In Revajeetu Builders and Developers v Narayanaswamy and sons others, (2009) 10 SCC 84, the Hon’ble Supreme Court has laid down the factors to be taken into consideration while dealing with the application for amendment as follows :-
“63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment;
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendment the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and /or dishonest amendments.”

15. The learned counsel for the petitioner relied on the ratio in M Revnna (supra) to contend that the burden is on person seeking amendment after commencement of trial to show due diligence on his part as contemplated under the proviso to Order 6 Rule 17. He submits that bonafides of prayer for amendment as also prejudice to the other side should be taken into consideration while deciding the amendment application. The amendment can neither can be claimed as a matter of right nor the Court has absolute discretion to allow the amendment in view of the proviso. He submits that belatedly application for amendment was filed and the learned trial Court has erred in allowing the same.

16. In that case, the amendment application was filed after the evidence of both the parties was already recorded and when the matter was listed for final hearing before the trial Court. By the amendment, the plaintiffs wanted to withdraw the admission made in the suit. In those circumstances, the Hon’ble Supreme Court came to the conclusion that the application for amendment of plaint was not only belatedly filed but the same is also not bonafide and if allowed would change the nature and character of the suit. In as much as, the Court would be allowing plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint, that the partition had not taken place earlier. The same would cause of serious prejudice to the plaintiff No.6. In those circumstances, the Hon’ble Supreme Court confirmed the order of the High Court quashing the trial Court order of allowing the amendment application. This authority is distinguishable on the facts, and is not applicable to the present case.

17. In G. Nagamma (supra), the Hon’ble Supreme Court has held that the plaintiff is entitled to plead event inconsistent pleas and to seek alternative relief by moving amendment application.

18. In Writ Petition No. 544/2018, this Court rejected the challenge raised to the order of the Trial Court allowing the amendment application for the forth time.

19. In Ragu Thilak D. John (supra), the Hon’ble Supreme Court held that by amendment of plaint relief sought was barred by limitation. However, where it is arguable that relief sought by way of amendment would be barred by law of limitation, the amendment still should be allowed and the disputed matter be made the subject matter of an issue.

20. In Surendra kumar Sharma(supra), the Hon’ble Supreme court held that belated application for amendment is not liable to be rejected merely on the ground of delay, if the trial Court finds that by allowing the application real controversy between the parties may be resolved the Court can allow the application where opposite party can be compensated by costs or otherwise.

21. In the light of the ratio in the above mentioned judgments, the legal position is settled that the dominant purpose of allowing the amendment is to minimize the litigation.

22. Applying the ratio of the above mentioned judgments, to the facts of the present case it is clear that the amendment is necessary for proper and effective adjudication of the dispute between the parties and application for amendment is bonafide. The amendment would not cause any prejudice to the defendants and the amendment is necessary to avoid multiplicity of the litigation between the parties. The amendment does not change the nature and character of the case. The amended relief sought by the plaintiff cannot be said to be beyond limitation. In fact, in my considered view the said amendment is necessary to decide the lis between the parties.

23. Learned trial Court was justified in allowing the amendment and no fault can be found with the reasoning adopted by the learned trial Court while allowing the amendment application. There is no substance in the writ petition filed by the petitioner and the same is dismissed.

24. Needless to mention that the defendant will be entitled to file amended written statement in reply to the amendment made by the plaintiff.

Decision : Petition dismissed