Amendment of plaint
sudhirghabasu
(Querist) 22 January 2012
This query is : Resolved
sir, my hearty wishes, i am great full to all of our experts for rendering a qualitative free legal service. sirs, i have a query about amendment of plaint. As per cpc amendment of plaint can be done at any time before framing of issues, in my case, issues are not yer framed, i came with this query earlier and one of our learned expert suggested me a citation i.e (2007)5 scc 602 i went though the same, it speaks about amendment of written statement,my heart felt thanks for that, though i had produced it before the court the court had instructed me that , the citation speaks only about amendment of written statement so produce a citation which will speaks about amendment of plaint. The suit is not to disturb the possession and enjoyment, while the suit is pending the defendants had disconnected the electricity connection, but the same is restored through some efforts, my client's apprehension is they may disconnect the electricity connection again, because they are very influential. So, i decided to file an application for amendment of plaint not to disconnect the electricity connection, and also an interim application not to disconnect the electricity connection until the disposal of the suit. Note:- The electricity connection stands in the name of the plaintiffs grandfather i.e. my clients, the defendants are also one of the share holders, the original EB card is under the possession of the defendant. Now i want to amendment the plaint, please kindly help me with relevant citations which squarely speaks about amendment of plaint alone. moreover issues are not framed. I had also taken efforts to get a citation through net but not able to get. please help me the case is posted for arguments in I.A. on 25.01.2010. thanking you in anticipation.
ajay sethi
(Expert) 22 January 2012
importantjudgement.blogspot.com/.../surender-kumar-sharma-appell...
Code of Civil Procedure, Order 6 Rule 17: Suit for eviction — on the grounds of arrears of rent — application for amendment of plaint — mere delay and latches in making the application for amendment cannot be a ground to refuse amendment — belated amendment could be allowed on payment of cost — even after the amendment of the plaint, the suit would remain a suit for eviction — set aside the orders of High Court as well as of the trial court — application for amendment of the plaint allowed with payment of costs of Rs. 10,000/- to the opposite parties — appeal allowed with no costs.
Judgement:
Civil Appeal No. 6400 of 2009
Date of Decision: 9/18/2009.
Judge(s): Hon'ble Mr. Justice Tarun Chatterjee, Mr. Justice Aftab Alam and Hon'ble Mr. Justice R.M. Lodha.
SUPREME COURT OF INDIA
1. Leave granted.
2. In our view, this is a case in which the High Court, in its revisional jurisdiction, and the trial court had fallen in grave error in refusing amendment of the plaint filed in a suit for eviction on the ground of arrears of rent.
3. The appellant, as a plaintiff, has filed the aforesaid suit in respect of Property No. 28, Varsha Sarvodaya Housing Cooperative Society, Hirapur post, Tatiband, Raipur, Chattisgarh against the tenant/respondent.
4. The trial Court rejected the application for amendment of the plaint mainly on the ground that the prayer for amendment was a belated one. In revision, the High Court affirmed the order of the trial Court rejecting the application for amendment of the plaint inter alia holding that not only the prayer for amendment of the plaint made by the plaintiff/appellant was a belated one, but also that the prayer, if allowed, shall change the nature and character of the suit.
5. Feeling aggrieved by the impugned order of the High Court, this Special Leave Petition was filed by the plaintiff/appellant, which on grant of leave, was heard in presence of the learned counsel for the parties.
6. We keep it on record that in spite of notice on the defendant/respondent, no one had contested this appeal before us.
7. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. [See B.K. N. Pillai Vs. P. Pillai and another [AIR 2000 SC 614 at Page 616].
Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
8. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed.
Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed.
9. For the reasons aforesaid, the orders of the High Court as well as of the trial Court are set aside. The application for amendment of the plaint filed by the appellant stands allowed, subject to the payment of costs of Rs.10,000/- to the opposite party, which shall be deposited/paid within a period of six weeks from the date of supply of a copy of this order. In default of deposit/payment of such costs, the application for amendment of the plaint shall stand rejected.
10. For the reasons aforesaid, this appeal is allowed to the extent indicated above. There will be no order as to costs
ajay sethi
(Expert) 22 January 2012
Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626, at para 5:
"5. As noted hereinearlier, the prayer for amendment was refused by the High
Court on two grounds. So far as the first ground is concerned i.e. the prayer for
amendment was a belated one, we are of the view that even if it was belated, then
also, the question that needs to be decided is to see whether by allowing the
amendment, the real controversy between the parties may be resolved. It is well
settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers
and unfettered discretion have been conferred on the court to allow amendment
of the pleadings to a party in such a manner and on such terms as it appears to the
court just and proper. Even if, such an application for amendment of the plaint
was filed belatedly, such belated amendment cannot be refused if it is found that
for deciding the real controversy between the parties, it can be allowed on
payment of costs. Therefore, in our view, mere delay and laches in making the
application for amendment cannot be a ground to refuse the amendment."
ajay sethi
(Expert) 22 January 2012
North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by
LRS, (2008) 8 SCC 511, at para16:
"16. Insofar as the principles which govern the question of granting or
disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant
time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates
amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda
2011 STPL(Web) 708 SC 4
State of Madhya Pradesh Vs. Union of India
Supreme Court Judgements @ www.stpl-india.in
Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that all
amendments ought to be allowed which satisfy the two conditions:
(a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the real questions
in controversy between the parties. Amendments should be refused only
where the other party cannot be placed in the same position as if the
pleading had been originally correct, but the amendment would cause
him an injury which could not be compensated in costs."
(iii)
sudhirghabasu
(Querist) 22 January 2012
thank you very very much sethi sir hats off to you.
Raj Kumar Makkad
(Expert) 22 January 2012
Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626
In the given case, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment."
Raj Kumar Makkad
(Expert) 22 January 2012
North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, (2008) 8 SCC 511, at para16:
"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings.
In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions:
(a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."
(iii) Usha Devi v. Rijwan Ahamd and Others, (2008) 3 SCC 717, at para 13:
"13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05)
"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings."
(iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385, at paras 15 & 16:
"15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."
Devajyoti Barman
(Expert) 23 January 2012
Yes, apart from these there is no dearth of citations on this point.
prabhakar singh
(Expert) 23 January 2012
First of all noticeably your application is not belated and secondly the amendment proposed does not change the nature of suit where only some additions are proposed to be made by addition in relief clause for which any second suit shall be barred by order 2 rule 2 of C.P.C. because a plaintiff is obliged to seek all reliefs he can ask for in the same suit.In addition just for this reason court should not encourage multiplicity of litigation.HENCE COURT CAN NOT legally REJECT SUCH AMENDMENT AT ALL,case law may or may not be needed for this little matter.
ARGUE IT FROM THIS POINT CORNER.
