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V.G.Rao Advocate (Advocate)     15 April 2010

Need SC Judgment on not maintainability of petition U/o6 r17

Hi all,

I need a case law of latest Supremecourt bench on disallowing the application filed under order 6 rule 17 of c.p.c after commencement of trial. please provide me its urgent.



Learning

 10 Replies

Gundlapallis (Advocate)     16 April 2010

Bench: H S Bedi, D Bhandari

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6921 OF 2009.

(Arising out of SLP (c) No.1552 OF 2007)

Revajeetu Builders & Developers ..... Appellant Versus

Narayanaswamy & Sons & Others ..... Respondents J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

 

2. This appeal is directed against the judgment and order dated 16.9.2006 passed by the High Court of Karnataka at Bangalore in Writ Petition No.36550 of 2003.

3. Brief facts in nutshell are as under: The appellant (original plaintiff) filed an Original Suit no. 2265 of 1996 before the XXXI Additional City Civil Judge, Bangalore against the respondents (defendant nos. 1 to 10) for recovery of Rs.52,97,111/- with interest at the rate of 18% per annum from the date of filing of suit till payment. The appellant alternatively had taken the plea that if the court for any reason comes to the conclusion that a decree for a sum of Rs.52,97,111/- cannot be passed as prayed by the appellant against respondents (original defendant nos. 1 and 2), then the court may at least pass a decree for Rs.19,12,500/- with interest at the rate of 18% from the date of suit till the date of realization against the respondents.

 

4. The appellant also claimed that it be declared absolute owner of the scheduled property on the basis of the sale deed dated 30.9.1987. The sale deed was executed by the respondents in favour of the appellant after obtaining permission from the State of Karnataka under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976.

 

5. A petition in public interest was filed by one S. Vasudeva which ultimately came up before this Court in Civil Appeal Nos.1454-56 of 1993 challenging the aforementioned transfer of land. This court in those proceedings held that the sale deed executed by the respondent in favour of the appellant on 30.9.1987 is held to be invalid and inoperative. It may be pertinent to mention that after the institution of the suit, the Urban Land (Ceiling and Regulation) Act, 1976 has been repealed.

6. After the Act has been repealed, the appellant filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short `CPC') seeking leave of the trial court to add two additional paragraphs as 2(A) and (B) and few prayers and to delete certain paragraphs in the plaint and also to delete the prayer (a), (b) and (c). Paragraphs 2(A) and (B) are set out as under: "2(A). With the enactment of the Urban Land (Ceiling & Regulation) Act,

1976, the first defendant firm was prohibited from holding vacant land in

excess of ceiling limits. As provided by the said Act, such vacant land, in excess

of ceiling limits, was liable to be

acquired by the State Government. Therefore, the first defendant firm applied to the State Government for exemption,

under section 20(1) of the said Act, and

sought permission to hold excess vacant

land to an extent admeasuring 16194 square

metres. Vide Government Order dated

17.07.85, in exercise of its power under

section 20(1) of the said Act, the state

government permitted the first defendant

firm to hold the excess vacant land.

Subsequently, as stated in para 4 hereinafter, the first defendant firm made

another application to the state government to exempt the balance excess vacant land

admeasuring 3444 square metres and the same was permitted by the state government vide

its order dated 18.04.87. Thus, the entire

extent of vacant land in excess of ceiling

limits admeasuring a total aggregate extent of 19638 square metres was exempted, by the state government, under section 20(1) of

the said Act.

2(B). Thereafter, the defendant firm approached the plaintiff and offered to sell, to the plaintiff, an extent of 5 acres 24 guntas in survey nos.6/1 and 6/2, Dasarahalli, VI Block, Jayanagar, Bangalore, together with building thereon. This extent of 5 acres 24 guntas comprised of 19638 square feet of excess vacant land, in addition to the land with buildings and vacant land within ceiling limits. The first defendant firm, therefore, obtained permission from the state government under orders dated 06.03.87 and 18.04.87 to sell to the plaintiffs, the excess vacant land admeasuring 19638 square metres, as set out in paras 3 and 4 hereinafter. Pursuant thereto, the first defendant firm

executed a registered Sale Deed dated 30.09.87 in respect of the total aggregate extent of 5 acres 24 guntas i.e. including the excess vacant land admeasuring 19638 square metres as aforesaid (19638 sq. metres)."

 

7. The appellant sought to add the following prayers in the plaint by an amendment in the plaint:-

(a) to declare that from 1.4.1988, the defendants are trespassers and or in

unauthorized occupation of the building

which they were permitted, under the Sale

Deed dated 30.9.1987 to use as a licensee

till 31.3.1988;

(b) to issue a mandatory injunction directing the defendants to vacate and

deliver to the plaintiff, vacant and

peaceful possession of the building within

30 days; and

(c) to issue a permanent injunction restraining the defendants or any of them,

or their agents, representatives, servants

or any other persons claiming through,

under or on behalf of any of them from

interfering with or in any manner disturbing, hindering, obstructing, the

plaintiff's enjoyment and possession of the entire suit schedule property including the building portion ordered to be evicted in

terms of prayer (b) hereinabove.

 

8. The trial court vide order dated 5.4.2003 allowed application for amendment filed under Order VI Rule 17 CPC. The respondents aggrieved by the said order of the trial court preferred a writ petition No.36550 of 2003 under Article 227 of the Constitution before the High Court of Karnataka on the ground that the amendment as sought and granted has changed the entire nature of the suit and cause of action. The respondents also submitted that the fact of allowing amendment would be taking away admissions in the plaint by the appellant and such an amendment cannot be permitted by any court of law. It was further submitted by the respondents that by the order of the trial court the rights accrued to the respondents have been taken away.

9. The respondents submitted that the original suit was instituted for recovery of Rs.52,97,111/-. Alternatively, the appellant requested the court to declare it as the absolute owner based on the basis of sale deed dated 30.9.1987 and direct the respondents to deliver vacant possession of the plaint schedule property. The respondents also submitted that the appellant relying upon the sale deed dated 30.9.1987 requested the court to declare it as the absolute owner and since it sought possession of the property from the respondents meaning thereby that the respondents are in possession of the entire suit property. If the appellant are in possession of only a portion of the suit property, the same ought to have been mentioned in the plaint and the prayer in respect of the same would be limited and not seeking relief of possession in respect of the entire suit property. Now by virtue of the amendment, the appellant is trying to contend that the respondents are to be treated as trespassers and unauthorized occupants of the building in question.

10. The learned counsel for the respondents submitted that when the appellant had originally sought possession of the entire property from the respondents, by giving up such a claim, now the appellant is trying to introduce a new case which would certainly affect the rights of the respondents when the appellant had earlier requested the court to pass a decree for possession of the entire property. Learned counsel for the appellant also submitted that the trial court without considering or properly comprehending implications of all these aspects has allowed the amendment application.

 

11. In the impugned judgment, the High Court after considering the rival contentions came to the definite conclusion that the appellant while seeking permission to amend the plaint is trying to introduce a new case which was not his case in the original plaint and proposed amendment if allowed would certainly affect the rights of the respondents adversely. In the impugned judgment, the High Court also held that the appellant cannot be permitted to withdraw the admissions made in the plaint as it would affect the rights of the respondents.

12. The High Court in the impugned judgment also held that any such amendment which changes the entire character of the plaint cannot be permitted and that too after a lapse of four years after the institution of the suit. The High Court has set aside the order of the trial court which allowed the amendment under Order VI Rule 17 CPC.

13. Being aggrieved by the impugned judgment, the appellant has preferred this appeal.

 

14. We have heard the learned counsel for the parties and have also perused the written submissions filed by the parties.

 

15. It is submitted by the learned counsel for the appellant that the suit, as originally framed, was only for refund of sale consideration and alternatively for possession. The appellant also submitted that the relief for possession was always there, although it was in respect of the entire land which is sought to be amended and reduced to the licensed area only. According to the appellant, the amendment under Order VI Rule 17 is consequent to the subsequent Urban Land (Ceiling & Regulation) Repeal Act, 1999 which validated all exemption orders notwithstanding any court orders, judgments or decrees to the contrary. The appellant also submitted that the amendment is necessary to elucidate the real points in controversy. It was also submitted by the appellant that the amendment will not cause any prejudice to the respondents. It was also submitted that the stand taken up by the respondents is totally dishonest, wrong and not bona fide. The appellant submitted that the court should be liberal in allowing amendments and the respondents be compensated by costs.

16. The learned counsel for the respondents submitted that in the original plaint, the appellant rightly sought only for recovery of sale price relying on section 65 of the Contract Act. Section 65 of the Contract Act is as follows:-

"When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it."

17. The original plaint expressly so avers and relies on section 65 of the Contract Act clearly admitting that the sale deed has become void. This admission is now sought to be got rid off and the sale deed is sought to be asserted as valid. It was submitted that the appellant cannot, therefore, seek any amendment of the plaint relying on the circumstances as to the earlier decision having been overruled by seeking amendment of the plaint. This has the effect of changing the character of the suit and also omitting an admission made.

 

18. Respondents (Defendant nos.1, 2, 4 and 7) filed written statement to the original plaint. They prayed the court to pass a decree in favour of the appellant for a sum of Rs.27,30,339.45/. This is an admission of the respondents in favour of the appellant to an extent of Rs.27,30,339.45/-. The appellant now cannot be permitted to take a complete somersault.

19. The respondents also submitted that the appellant cannot now seek recovery of possession of the property. To grant amendment at this stage would not only have the effect of appellant getting rid of the admissions made in the original plaint but defeating the provisions of Order XII Rule 6 of the CPC by changing the cause of action and entire character of the suit and causing serious prejudice to the respondents. The respondents relied on the decision of this court in Usha Balashaheb Swami & Others v. Kiran Appaso Swami & Others1 wherein the court has held that by way of amendment, admission made in pleadings and particularly in the plaint cannot be sought to be omitted or got rid of. The Court further observed that a prayer for amendment of the plaint stand on different footing. The relevant observations of the Court are set out as under:

"19. ..a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.

 

20. Such being the settled law, we must hold that in the case of amendment of a written 1 (2007) 5 SCC 602

statement, the courts are more liberal in allowing an amendment than that of a plaint as a question of prejudice would be far less in the former than in the latter case......."

20. The learned counsel for the respondents further relied on the decision in Heeralal v. Kalyan Mal & Others2 wherein the court proceeded on the basis that the earlier admissions of the defendant cannot be allowed to be withdrawn. The Court examined the facts and held that the defendant cannot be permitted to withdraw any admission already made.

 

21. The respondents have also relied on the decision in Gautam Sarup v. Leela Jetley & Others3. In the said case, it was held that by amendment the admission in the original pleadings cannot be sought to be got rid off.

22. In M/s Modi Spinning & Weaving Mills Co. Ltd. & Another v. Ladha Ram & Co.4, the trial court while rejecting an application under Order VI Rule 17 said that the repudiation of clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law. The High Court on revision affirmed the judgment of the trial court and held that by means of amendment the defendant wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.

2 (1998) 1 SCC 278

3 (2008) 7 SCC 85

4 (1976) 4 SCC 320

23. In the said case, a three-Judge bench of this court observed:

"10. It is true that inconsistent pleas can be made in pleadings but the effect of

substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions

made by the defendants in the written

statement. If such amendments are allowed

the plaintiff will be irretrievably prejudiced by being denied the opportunity

of extracting the admission from the

defendants. The High Court rightly rejected the application for amendment and

agreed with the trial Court."

This judgment has been referred in Usha Balashaheb Swami (supra) and the court observed that Modi Spinning's case (supra) was a clear authority for the proposition that once a written statement contained an admission in favour of the plaintiff, by amendment such an admission of the defendant, cannot be withdrawn and if allowed, it would amount to totally displacing the case of the plaintiff.

24. In the same judgment of Usha Balashaheb Swami (supra), the Court dealt with a number of judgments of this Court and laid down that the prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.

25. If we carefully examine all the cases, the statement of law declared by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung5 has been consistently accepted by the courts till date as correct statement of law. The Privy Council observed:

"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."

 

26. When we apply the principle laid down by the above judgments, the conclusion becomes irresistible that the view taken by the High Court in the impugned judgment cannot be said to be unjustified.

 

27. We are tracing the legislative history, objects and reasons for incorporating Order VI Rule 17 not because it is necessary to dispose of this case, but a large number of applications under Order VI Rule 17 are filed and our 5 AIR 1922 PC 249

courts are flooded with such cases. Indiscriminate filing of applications of amendments is one of the main causes of delay in disposal of civil cases. In our view, clear guideline may help disposing off these applications satisfactorily.

 

28. We deem it appropriate to give historical background of Rule 17 of Order VI corresponds to section 53 of the Old Code of 1882. It is similar to Order 21 Rule 8 of the English Law. Order VI Rule 17 CPC reads as under: "Amendment of Pleadings.-- 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:

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."

 

29. In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases.

 

30. It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) Act, 1999 but because of public uproar, it was revived. Justice C.K. Thakker, an eminent former Judge of this Court in his book on Code of Civil Procedure (2005 Edition) incorporated this information while dealing with the object of amendment.

 

31. In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs.

 

32. To curtail delay in disposal of cases, in 1999 the Legislation altogether deleted Rule 17 which meant that amendment of pleading would no longer have been permissible. But immediately after the deletion there was widespread uproar and in 2002 Rule 17 was restored, but added a proviso. That proviso applies only after the trial has commenced. Prior to that stage, the situation remains as it was. According to the view of the learned author Arun Mohan as observed in his book, although the proviso has improved the position, the fact remains that amendments should be permissible, but only if a sufficient ground therefore is made out, and further, only on stringent terms. To that end, the rule needs to be further tightened.

 

33. The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases.

 

34. In the leading English case of Cropper v. Smith6, the object underlying amendment of pleadings has been laid down by Browen, L.J. in the following words: "It is a well established principle that the object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct in their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ... it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right."

 

35. In Tildersley v. Harper7 which was decided by the English Court even earlier than the Cropper's case (supra), in an action against a lessee for setting aside a lease, in the statement of claim it was alleged that the power of attorney of donee had received specified sum as a bribe. In the statement of defence, each circumstance was denied but there was no general denial of a bribe having been 6 (1884) 29 Ch D 700

7 (1878) 10 Ch. D 393

given. A prayer for amendment of the defence statement was refused.

 

36. The Court of Appeal held that the amendment ought to have been allowed. Bramwell, L.J. made the following pertinent observations:

"I have had much to do in Chambers with applications for leave to amend, and I may

perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise." (Emphasis added)

 

37. In another leading English case Weldon v. Neal8, A filed a suit against B for damages for slander. A thereafter applied for leave to amend the plaint by adding fresh claims in respect of assault and false imprisonment. On the date of the application, those claims were barred by limitation though they were within the period of limitation on the date of filing the suit. The amendment was refused since the effect of granting it would be to take away from B the legal right (the defence under the law of limitation) and thus would cause prejudice to him.

 

38. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by law of limitation is but one of 8 (1880) 19 QBD 394: 56 LJ QB 621

the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice.9

 

39. In Steward v. North Metropolitan Tramways Co.10, the plaintiff filed a suit for damages against the tramways Company for negligence of the company in allowing the tramways to be in a defective condition. The company denied the allegation of negligence. It was not even contended that the company was not the proper party to be sued. More than six months after the written statement was filed, the company applied for leave to amend the defence by adding the plea that under the contract entered into between the company and the local authority the liability to maintain tramways in proper condition was of the latter and, therefore, the company was not liable. On the date of the amendment application, the plaintiff's remedy against the local authority was time barred. Had the agreement been pleaded earlier, the plaintiff could have filed a suit even against the local authority. Under the circumstances, the amendment was refused.

 

40. In the said case, Pollock, J. quoting with approval the observation of Bremwell, LJ. rightly observed: "The test as to whether the amendment should be allowed is, 9 Ganga Bai v. Vijai Kumar (1974) 2 SCC 393; Arundhati Mishra v. Sri Ram Charitra Pandey (1994) 2 SCC 29. 10 (1886) 16 QB 178

whether or not the defendants can amend without placing the plaintiff in such a position that he cannot be recouped, as it were, by any allowance of costs, or otherwise. According to him such an amendment ought not be allowed."

41. Kisandas v. Rachappa Vithoba11 is probably the first leading case decided by the High Court of Bombay under the present Code of 1908. There, A, plaintiff, averred that in pursuance of a partnership agreement, he delivered Rs.4001 worth of cloth to B, defendant, and sued for dissolution of partnership and accounts. The trial court found that A delivered the cloth worth Rs.4001 but held that there was no partnership and the suit was not maintainable. In appeal, A sought amendment of adding a prayer for the recovery of Rs.4001. On that day, claim for recovery of money was barred by limitation. The amendment was allowed by the appellate court and the suit was decreed. B challenged the decree. The High Court upheld the order and dismissed the appeal. Referring to leading English decisions on the point, Batchelor, J. stated: "From the imperative character of the last sentence of the rule it seems to me clear that, at any stage of the proceedings, all amendments ought to be allowed which satisfy the two conditions (a) of not working in justice to the other side, and (b) of being necessary for the purpose of

determining the real questions in controversy between the parties."

 

42. In a concurring judgment, Beaman, J. observed that "the practice is to allow all amendments, whether 11 (1909) 33 Bom 644

introducing fresh claims or not, so long as they do not put the other party at a disadvantage for which he cannot be compensated by costs."

His Lordship proceeded to state:

"In my opinion two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment? If not, then it follows necessarily that the proposed amendment places the other party at a disadvantage, it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second, in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs? If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed."

 

43. In Amulakchand Mewaram & Others v. Babulal Kanalal Taliwala12, the Bombay High Court again had an occasion to decide a case under Order VI Rule 17. In that case, the Court approved the following observations of Beaumont, C.J. and observed:

"... the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought in the name of a non-existent person or whether it is merely a misdescripttion of existing persons. If the

former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an

amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs."

12 (1933) 35 Bom. L.R. 569

44. In L.J. Leach & Co. Ltd. & Another v. Jardine, Skinner & Co.13, a suit for damages for `conversion of goods' filed by the plaintiff was decreed by the trial court but the decree was set aside by the High Court. In an appeal before this Court, the plaintiff applied for amendment of the plaint by raising an alternative claim for damages for breach of contract for `non-delivery of goods'. The amendment was resisted by the defendant contending that it sought to introduce a new cause of action which was barred by limitation on the day the amendment was sought and, hence, it would seriously prejudice the defendant.

45. Though the Court noticed `considerable force' in the objection, keeping in view the prayer in the amendment which was not `foreign to the scope of the suit' and all necessary facts were on record, it allowed the amendment.

46. In P.H. Patil v. K.S. Patil14, A obtained a decree for possession against B. He was, however, obstructed in obtaining possession by C in execution. A then filed a substantive suit against B and C. In the plaint, except saying that he had obtained a decree against B, nothing more was stated by A. Hence, he filed an application for amendment which was rejected by the trial court but allowed by the High Court. C approached this Court.

47. Dismissing the appeal and confirming the order of 13 AIR 1957 SC 357

14 AIR 1957 SC 363

the High Court, this Court observed that the discretionary power of amendment was not exercised by the High Court on wrong principles. There was merely a defect in the pleading which was removed by the amendment. The quality and quantity of the reliefs sought remained the same. Since the amendment did not introduce a new case, the defendant was not taken by surprise.

 

48. In Pursuhottam Umedbhai & Co. v. Manilal & Sons15 a suit was instituted in the name of the firm by the partners doing business outside India. It was held that there was only mis-descripttion of the plaintiff. The plaint in the name of the firm was not a nullity and could be amended by substituting the names of partners.

 

49. In similar circumstances, in a subsequent case Ganesh Trading Co. v. Moji Ram16, this Court reiterated the law laid down in Purushottam Umedbhai & Co. (supra). The Court observed:

"It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere

failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff 15 AIR 1961 SC 325

16 (1978) 2 SCC 91

must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation; to be put on every defective state of pleadings. Defective pleadings are generally curable, if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings."

 

50. In Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala & Others17, the defendant's prayer for amendment by treating a counter claim as cross-suit was objected to by the plaintiff inter alia on the ground of limitation. The amendment, however, was allowed.

 

51. When the matter reached this Court, while affirming the order of the High Court, the majority stated: ".....It is, no doubt, true that, save in exceptional cases, leave to amend under O. 6, r. 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is 17 AIR 1964 SC 11

one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading."

 

52. The Court further observed that since there was no addition to the averments or relief, it was not possible to uphold the contention of the plaintiff that by conversion of written statement into a plaint in a cross-suit, a fresh claim was made or a new relief was sought. To the facts of the present case, therefore, the decisions holding that amendments could not ordinarily be allowed beyond the period of limitation and the limited exceptions to that rule have no application.

 

53. In Jai Jai Ram Manohar Lal v. National Building Material Supply18, A sued B in his individual name but afterward soughts leave to amend the plaint to sue as the proprietor of a Hindu Joint Family business. The amendment was granted and the suit was decreed. The High Court, however, reversed the decree observing that the action was brought by a `non-existing person'.

 

54. Reversing the order of the High Court, this Court (per Shah, J., as he then was) made the following oft- quoted observations:

18 (1969) 1 SCC 869

"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party Applying, was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." (Emphasis Added)

 

55. In Ganga Bai v. Vijay Kumar19, an appeal was filed against a mere finding recorded by the trial court. After a lapse of more than seven years, amendment was sought by which a preliminary decree was challenged which was granted by the High Court by a laconic order.

 

56. Setting aside the order of the High Court, this Court stated:

"The preliminary decree had remained unchallenged since September 1958 and by lapse of time a valuable right had accrued in favour of the decree-holder. The power to allow an amendment is undoubtedly wide and may at any stage be

appropriately exercised in the interest of

justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."

 

57. In Haridas Aildas Thadani & Others v. Godraj Rustom Kermani20 this Court said that "It is well settled that the 19 (1974) 2 SCC 393

20 (1984) 1 SCC 668

court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.

58. In B. K. Narayana Pillai v. Parameshwaram Pillai & Another21, a suit was filed by A for recovery of possession from B alleging that B was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused.

 

59. Setting aside the orders refusing amendment, this Court stated:

"The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are 21 (2000) 1 SCC 712

allowed in the pleadings to avoid uncalled for multiplicity of litigation."

 

60. In Suraj Prakash Bhasin v. Raj Rani Bhasin & Others22, this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for anther and that the subject- matter of the suit should not be changed by amendment. WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY:

61. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.

NO PREJUDICE OR INJUSTICE TO OTHER PARTY:

62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to 22 (1981) 3 SCC 652

other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.

63. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.

 

64. In Ganga Bai's case (supra), this Court has rightly observed:

"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately

exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court." COSTS:

65. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive.

(i) At what stage the amendment was sought? (ii) While imposing the costs, it should be taken into consideration whether the

amendment has been sought at a pre-trial

or post-trial stage;

(iii)The financial benefit derived by one par- ty at the cost of other party should be

properly calculated in terms of money and

the costs be awarded accordingly.

(iv) The imposition of costs should not be symbolic but realistic;

(v) The delay and inconvenience caused to the opposite side must be clearly evaluated

in terms of additional and extra court

hearings compelling the opposite party to

bear the extra costs.

(vi) In case of appeal to higher courts, the victim of amendment is compelled to bear

considerable additional costs.

All these aspects must be carefully taken into considera- tion while awarding the costs.

 

66. The purpose of imposing costs is to: a) Discourage malafide amendments designed to delay the legal proceedings;

b) Compensate the other party for the de- lay and the inconvenience caused;

c) Compensate the other party for avoid- able expenses on the litigation which

had to be incurred by opposite party

for opposing the amendment; and

d) To send a clear message that the par- ties have to be careful while drafting

the original pleadings.

FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:

 

67. On critically analyzing 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 im-

perative for proper and effective

adjudication of the case?

(2) Whether the application for amend-

ment 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 multi-

ple litigation;

(5) Whether the proposed amendment con-

stitutionally 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.

 

68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.

 

69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.

70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.

 

71. When we apply these parameters to the present case, then the application for amendment deserves to be dismissed with costs of Rs.1,00,000/- (Rupees One Lakh) because the respondents were compelled to oppose the amendment application before different Courts. This appeal being devoid of any merit is accordingly dismissed with costs. ........................................J.

(Dalveer Bhandari)

.......................................J.

(Harjit Singh Bedi)

New Delhi,

October 9, 2009.

2 Like

Gundlapallis (Advocate)     16 April 2010

Dear Mr. Rao,

 

Plz let me know whether the above judgement is helpful to your case.  Good luck.

 

regards.

Pawan Mandothia (Lawer)     08 February 2011

Dear  Mr. Gundlapallis

I am new member  in the forum.I read the above judgement  and I think this is one of the best Judgements on Order 6 Rule 17.

A  BIG  THANKS TO  YOU

Pls help me  and provide any other  SC  Judgement  on disallowing the application filed under order 6 rule 17 of c.p.c after commencement of trial. 

kailas naik (notary)     11 February 2011

Pls help me  and provide any other  SC  Judgement  on disallowing the application filed under order 6 rule 17 of c.p.c after commencement of trial. 

more particularly disallowing on the grounds of change of consideration, possession date, and withdrawal of admission

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     19 April 2011

thanx for this important judgement

chiranjib sinha (student)     05 May 2011

need supreme court judgment if the facts stated are not by way of amendment ?

Jamai Of Law (propra)     06 May 2011

if  "the facts stated are not by way of amendment " ................................ anything beyond pleading is absolutely unacceptable.

 

But question is whether an amendment should be allowed? and if yes then when and why? And whether the objections of opposite side be entertained? what kind of objections opposite side may raise?

 

The same thing applies to 'subsequent pleadings'.

 

If anyone/defendent is raising the defense of 'statute of fraud' and in that making affirmative defense and implicit admission, should that be allowed to be withdrawn/changed if plaintiff seeks to amend pleadings in the same context?

 

CPC is mix of inquisitorial as well as advrsarial system, is the belief I hold.

 

 

Generally Hon courts do not by themselves restrict or apply any rigid standards to plaintiff's prayer of amendments unless opposite party raises strong objections and prays the court to  intervene and disallow it by citing the prejudice and impact to the other party.

 

 

And plaintiff also should rather explain why amendment and how it is justified, so that it becomes a reasoned amendment ................... else the matter is likely to reach upper court!!!

 

 

But amending the pleadings during the arguments is the worst tactic to which other party should always be wary about!!!

 

B.K.GUPTA... (ADVISOR)     19 December 2011

Dear Mr Rao,

You asked for the latest judgement regarding Order 6 Rule 17,So here it is.It is dated August 2,2011.


Attached File : 30392 235394 56 sc judgement order 6 rule 17 dated 02 08 2011 aspx.pdf downloaded: 514 times

B.K.GUPTA... (ADVISOR)     19 December 2011

Dear Mr Rao,

In the judgement attached with above message you would notice that High Court accepted the amendment application but the Supreme Court reversed the descision .

It is a very interesting case as the litigant directly filed amendment application i.e. without obtaining permission

to file the amended plaint.Moreover the litigant was so confident that he deposited a sum of Rs.4,98,000 being difference of court fee which have been payable on the basis of amendment.

B.K.GUPTA... (ADVISOR)     19 December 2011

 

 One more judgement of the Supreme Court dated August 17,2011                                                                                                                       REPORTABLE  
 
 
                 IN THE SUPREME COURT OF INDIA
 
 
                   CIVIL ORIGINAL JURISDICTION
 
 
                            I.A. NO. 4 OF 2009
 
 
                                        IN
 
 
 
                   ORIGINAL SUIT NO. 6  OF 2004
 
 
 
 
State of Madhya Pradesh                                       .... Applicant(s)/
 
                                                                 Plaintiff
 
             Versus
 
 
 
Union of India & Anr.                                      .... Respondent(s)/
 
                                                                Defendants
 
 
 
 
 
                              J U D G M E N T 
 
 
P. Sathasivam, J.
 
 
1)    In the year 2004, the State of Madhya Pradesh has filed 
 
 
 
Original Suit No. 6 of 2004 before this Court under Article 131 
 
 
 
of   the   Constitution   of   India  calling   for   the   records   relating   to 
 
 
 
the   impugned   Notifications/Orders   dated   02.11.2004   and 
 
 
 
04.11.2004 issued by the Ist Defendant-Union of India under 
 
 
 
Sections   58(3)   and   58(4)   of   the   Madhya   Pradesh   Re-
 
 
 
organisation   Act,  2000  (hereinafter   referred  to  as  "MPR   Act"), 
 
 
 
 
                                                                                1
 
notifying   the   date   of   dissolution   of   the   M.P.   Electricity   Board 
 
 
 
(in   short   "the   MPEB")   for   the   undivided   State   of   Madhya 
 
 
 
Pradesh   and   apportioning   its   assets,   rights   and   liabilities 
 
 
 
between   the   successor   Electricity   Boards   for   the   reorganized 
 
 
 
States   of   Madhya   Pradesh   and   Chhattisgarh   and   to   declare 
 
 
 
them   null  and   void  as the   same   are  unconstitutional   and  for 
 
 
 
certain other reliefs.  
 
 
 
2)    In   the   said   suit,   the   plaintiff-State   of   Madhya   Pradesh 
 
 
 
filed an application for amendment of plaint being I.A. No.4 of 
 
 
 
2009   seeking,  inter   alia,  the   amendment   to   the   effect   that 
 
 
 
Sections 58(3) and 58(4) of the MPR Act are violative of Article 
 
 
 
14   of   the   Constitution   of   India   inasmuch   as   it   enables   the 
 
 
 
Central   Government   to   determine   without   any   guidelines   the 
 
 
 
manner   of   exercise   of   power   while   deciding   the   basis   of 
 
 
 
apportionment   of   the   assets   and   liabilities   of   the   successor 
 
 
 
Boards.
 
 
 
3)    Ist   Defendant-Union   of   India,   apart   from   disputing   its 
 
 
 
maintainability on delay and laches also contested on merits.
 
 
 
4)     2nd  Defendant-State   of   Chhattisgarh   has   objected   to   the 
 
 
 
amendment   on   the   ground   that   the   same   is   totally 
 
 
 
 
                                                                              2
 
misconceived   and   untenable   in   law   and   that   no   recourse 
 
 
 
whatsoever   can   be   permitted   to   challenge   the   validity   of   a 
 
 
 
Central   law   under   the   exclusive   jurisdiction   of   this   Court 
 
 
 
under   Article   131   of   the   Constitution   of   India.     The   State   of 
 
 
 
Chhattisgarh   has   also   contended   that   the   plaintiff-State   of 
 
 
 
M.P., on the one hand is seeking a prayer that Ist Defendant 
 
 
 
must perform its duty in accordance with the Statute and, on 
 
 
 
the   other   hand,   is   challenging   the   validity   of   the   very   same 
 
 
 
Statute and, therefore, it is liable to be dismissed.  
 
 
 
5)     Heard Mr. C.S. Vaidyanathan, learned senior counsel for 
 
 
 
the   applicant/plaintiff-State   of   Madhya   Pradesh,   Mr.   H.P. 
 
 
 
Raval, learned Additional Solicitor General for Respondent No. 
 
 
 
1/Ist Defendant-Union of India and Mr. Ravi Shankar Prasad, 
 
 
 
learned   senior   counsel   for   Respondent   No.   2/2nd  Defendant- 
 
 
 
State of Chhattisgarh.
 
 
 
6)     In view of the fact that at present we are concerned with 
 
 
 
I.A.No.4  of 2009  -  application for  amendment  of  plaint,  there 
 
 
 
is   no   need   to   traverse   all   the   factual   details   as   stated   in   the 
 
 
 
plaint and written statement.   However, it is relevant to point 
 
 
 
 
 
                                                                                    3
 
out   the   reliefs   prayed   for   by   the   plaintiff   in   the   main   suit 
 
 
 
which are as under:
 
 
 
      "(a)    Call   for   the   records   relating   to   the   impugned 
 
              Notifications/Orders             dated         02.11.2004         and 
 
              04.11.2004 and declare the same as null and void as 
 
              the same is unconstitutional and in violation of Article 
 
              14 of the Constitution;
 
 
 
      (b)     Direct   1st  defendant   to   dissolve   MPEB   in   consonance 
 
              with   other   orders/directions   dated   12.04.2001, 
 
              04.12.2001   and   23.05.2003   passed   by   the   1st 
 
              defendant under Section 58(4) of MPRA;
 
 
 
      (c)     Direct   the   1st     Defendant   by   way   of   mandatory 
 
              injunction   to   perform   its   constitutional   and   the 
 
              statutory   duty   to   lay   down   proper   criteria   for 
 
              apportionment   of   assets,   rights   and   liabilities   in 
 
              accordance with law and to ensure equitable, just, fair 
 
              and   reasonable   apportionment   of   assets,   rights   and 
 
              liabilities   amongst   the   successor   Boards   on   the   basis 
 
              of   revenue   potential   so   as   to   avoid   undue   hardship 
 
              and disadvantage to any of the successor Boards; and
 
 
 
      (d)     Pass any other order and/or direction, as this Hon'ble 
 
              Court   may   deem   fit   and   proper   in   the   facts   and 
 
              circumstances of the case."
 
 
 
7)    In   the   present   application,   i.e.,   I.A.   No.4   of   2009,   the 
 
 
 
applicant-State   of   M.P.   has   prayed   for   amendment   of   the 
 
 
 
plaint by adding the following relief:
 
 
 
      "(b)     to   permit   additional   relief   to   be   incorporated   in   the 
 
      Plaint   viz.,   declare   Sections   58(3)   and   58(4)   of   the   Madhya 
 
      Pradesh   State   Re-organisation   Act,   2000   is   being 
 
      unconstitutional,   arbitrary  and   violative   of   Article   14   of   the 
 
      Constitution"
 
 
 
 
 
                                                                                         4
 
8)    In   order   to   consider   the   claim   of   the   plaintiff   and   the 
 
 
 
opposition   of   the   defendants,   it   is   desirable   to   refer   the 
 
 
 
relevant   provisions.     Order   VI   Rule   17   of   the   Code     of   Civil 
 
 
 
Procedure,   1908   (in   short   `the   Code')   enables   the   parties   to 
 
 
 
make amendment of the plaint which reads as under;
 
 
 
      "17.  Amendment   of   pleadings   -  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:
 
 
 
             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."
 
 
 
The   above   provision   deals   with   amendment   of  pleadings.     By 
 
 
 
Amendment Act 46 of 1999, this provision was deleted.  It has 
 
 
 
again been restored by Amendment Act 22 of 2002 but with an 
 
 
 
added   proviso   to   prevent   application   for   amendment   being 
 
 
 
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. 
 
 
 
The   proviso,   to   some   extent,   curtails   absolute   discretion   to 
 
 
 
allow   amendment   at   any   stage.     Now,   if   application   is   filed 
 
 
 
 
 
                                                                                          5
 
after commencement of trial, it must be shown that in spite of 
 
 
 
due   diligence,   such   amendment   could   not   have   been   sought 
 
 
 
earlier.     The   purpose   and   object   of   Order   VI   Rule   17   of   the 
 
 
 
Code is to allow either party to alter or amend his pleadings in 
 
 
 
such manner and on such terms as may be just.  Amendment 
 
 
 
cannot   be   claimed   as   a   matter   of   right   and   under   all 
 
 
 
circumstances,   but   the   Courts   while   deciding   such   prayers 
 
 
 
should   not   adopt   a   hyper-technical   approach.     Liberal 
 
 
 
approach   should   be   the   general   rule   particularly,   in   cases 
 
 
 
where   the   other   side   can   be   compensated   with   costs. 
 
 
 
Normally,   amendments   are   allowed   in   the   pleadings   to   avoid 
 
 
 
multiplicity of litigations.  
 
 
 
9)    Inasmuch   as   the   plaintiff-State   of   Madhya   Pradesh   has 
 
 
 
approached this Court invoking the original jurisdiction under 
 
 
 
Article   131   of   the   Constitution   of   India,   the   Rules   framed   by 
 
 
 
this Court, i.e., The Supreme Court Rules, 1966 (in short `the 
 
 
 
Rules)   have   to   be   applied   to   the   case   on   hand.     Order   XXVI 
 
 
 
speaks about "Pleadings Generally".   Among various rules, we 
 
 
 
are concerned about Rule 8 which reads as under:
 
 
 
 
 
                                                                               6
 
       "The   Court   may,   at   any   stage   of   the   proceedings,   allow 
 
       either party to amend his pleading in such manner and on 
 
       such   terms   as   may   be   just,   but   only   such   amendments 
 
       shall   be   made   as   may   be   necessary   for   the   purpose   of 
 
       determining   the   real   question   in   controversy   between   the 
 
       parties."
 
 
 
The   above   provision,   which   is   similar   to   Order   VI   Rule   17   of 
 
 
 
the Code  prescribes  that at  any  stage  of the  proceedings,  the 
 
 
 
Court   may   allow   either   party   to   amend   his   pleadings. 
 
 
 
However, it must be established that the proposed amendment 
 
 
 
is necessary for the purpose of determining the  real question 
 
 
in controversy between the parties.  
 
 
10)    This   Court,   while   considering   Order   VI   Rule   17   of   the 
 
 
 
Code, in several judgments has laid down the principles to be 
 
 
 
applicable   in   the   case   of   amendment   of   plaint   which   are   as 
 
 
 
follows:
 
 
(i)    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 
 
 
 
 
 
                                                                                                7
 
         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."
 
 
 
(ii)     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 
 
 
 
 
 
                                                                                               8
 
        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."
 
 
 
(v)     Revajeetu               Builders            and           Developers               v.  
 
 
        Narayanaswamy   and   Sons   and   Others,   (2009)   10  
 
 
        SCC 84, at para 63: 
 
 
 
        "63.  On   critically   analysing   both   the   English   and   Indian 
 
        cases, some basic principles emerge which ought to be taken 
 
 
 
 
 
                                                                                           9
 
      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."
 
 
 
The   above   principles   make   it   clear   that   Courts   have   ample 
 
 
 
power   to   allow   the   application   for   amendment   of   the   plaint. 
 
 
 
However, it must be satisfied that the same is required in the 
 
 
 
interest of justice and for the purpose of determination of real 
 
 
 
question in controversy between the parties.   We have already 
 
 
 
pointed out the relief prayed for in the plaint.  According to the 
 
 
 
plaintiff-State   of   Madhya   Pradesh,   the   Notifications/Orders 
 
 
 
dated   02.11.2004   and   04.11.2004   have   to   be   declared   null 
 
 
 
and void since the same are unconstitutional and in violation 
 
 
 
of   Article   14   of   the   Constitution   of   India.     The   other   relief, 
 
 
 
 
 
                                                                                       1
 
prayed for by the plaintiff, is to direct the Ist Defendant-Union 
 
 
 
of   India   to   dissolve   the   MPEB   in   consonance   with   the 
 
 
 
orders/directions   dated   12.04.2001,   04.12.2001   and 
 
 
 
23.05.2003 passed by the Union of India under Section 58(4) 
 
 
 
of   MPR   Act.     In   addition,   the   plaintiff-State   of   M.P.   has   also 
 
 
 
prayed   for   to   direct   the   Union   of   India   by   way   of   mandatory 
 
 
 
injunction   to  perform   its constitutional  and   statutory  duty  to 
 
 
 
lay   down   proper   criteria   for   apportionment   of   assets,   rights 
 
 
 
and liabilities in accordance with law and to ensure equitable, 
 
 
 
just,   fair   and   reasonable   apportionment   of  assets,   rights   and 
 
 
 
liabilities   amongst   the   successor   Boards   on   the   basis   of 
 
 
 
revenue   potential   so   as   to   avoid   undue   hardship   and 
 
 
 
disadvantage to any of the successor Boards.      
 
 
 
11)     Mr.   C.   S.   Vaidyanathan,   learned   senior   counsel   for   the 
 
 
 
plaintiff-State   of   M.P.,   by   drawing   our   attention   to   various 
 
 
 
averments   in   the   plaint   relating   to   the   purported   exercise   of 
 
 
 
power   by   the   Central   Government   submitted   that   the   same 
 
 
 
being   arbitrary,   unjust   and   unfair   had   resulted   in   serious 
 
 
 
anomalies in the apportionment of assets and liabilities by the 
 
 
 
impugned   Notifications/Orders   dated   02.11.2004   and 
 
 
 
 
                                                                                1
 
04.11.2004.          He   also   pointed   out   that   the   impugned 
 
 
 
Notifications/Orders   have   resulted   in   an   unequal   division   of 
 
 
 
generating   capacity,   created   a   huge   gap   in   demand   and 
 
 
 
supply, affecting the power supply and also the finances of the 
 
 
 
Board   of   the   plaintiff-State.     He   further   pointed   out   that 
 
 
 
Sections 58(3) and 58(4) of MPR Act provided unguided powers 
 
 
 
to the Central Government to determine the apportionment of 
 
 
 
assets,   rights   and   liabilities   between   the   successor   States   of 
 
 
 
M.P. and Chhattisgarh.  According to him, these provisions do 
 
 
 
not   provide   for   the   Central   Government   to   record   reasons   in 
 
 
 
support of its decision.   In the absence of any guidelines, any 
 
 
 
decision   by   the   Central   Government   is   arbitrary,   unjust, 
 
 
 
unfair, unreasonable, unconstitutional and violative  of Article 
 
 
 
14   of   the   Constitution   of   India,   in   particular.     In   those 
 
 
 
circumstances,   according   to   him,   the   amendment   of   plaint 
 
 
 
sought for is reasonable and acceptable.
 
 
 
12)     As   against   the   above   claim,   Mr   Rawal,   learned   ASG, 
 
 
 
appearing   for   the   Union   of   India   submitted   that   there   is   no 
 
 
 
merit   in   the   claim   for   amendment   of   plaint.   At   any   rate,   the 
 
 
 
amendment sought for is not maintainable at this juncture.  
 
 
 
 
                                                                               1
 
13)     Mr.   Ravi   Shankar   Prasad,   learned   senior   counsel   for 
 
 
 
second Defendant-State of Chhattisgarh strongly objected  the 
 
 
 
proposed amendment both on the ground of delay and laches 
 
 
 
and on merits.   Mr. Prasad highlighted that verification of the 
 
 
 
Court   proceedings   would   show   that  the   pleadings   in  the   suit 
 
 
 
are   complete,   evidence   by   way   of   affidavits   has   been   filed, 
 
 
 
issues for adjudication have been framed, admission/denial of 
 
 
 
documents filed  in support of the pleadings have taken place 
 
 
 
and the suit is now to be finally heard by this Court.   He also 
 
 
 
contended   that   the   application   at   this   belated   stage   is   not 
 
 
 
maintainable.
 
 
 
14)  It is not in dispute that after complying all the formalities 
 
 
 
even as early as on 16.04.2007, this Court has framed issues 
 
 
 
and  as rightly pointed  out by Mr  Prasad,  the  suit could have 
 
 
 
been disposed of by that time, however, the plaintiff has filed 
 
 
 
the present application for amendment of plaint at this belated 
 
 
 
stage.   It is true that there is no embargo in Order VI Rule 17 
 
 
 
of the Code and in Order XXVI Rule 8 of the Rules which alone 
 
 
 
govern the procedural aspects.  However, the fact remains that 
 
 
 
the plaintiff has not assigned any reason for not taking steps 
 
 
 
 
                                                                           1
 
when  the  State  had approached  this Court  under  Article  131 
 
 
 
by way of a suit even in the year 2004 and waited till 2009.
 
 
 
15)     The   next   objection   of   the   learned   counsel   for   the   2nd 
 
 
 
Defendant is that in the light of the language used in Rule 8 of 
 
 
 
Order   XXVI   of   the   Rules,   the   present   application   for 
 
 
 
amendment   substantially   alters   the   nature   of  lis/claim 
 
 
 
originally   preferred   by   the   plaintiff-State   of   M.P.     We   have 
 
 
 
already adverted to the reliefs prayed for in the suit.  The main 
 
 
 
relief relates to scope and manner of exercise of power by the 
 
 
 
Central   Government   under   Sections   58(3)   and   58(4)   of   the 
 
 
 
MPR   Act      qua     dissolution   of   the   erstwhile   MPEB   and 
 
 
 
apportionment of its assets, rights  and liabilities  between the 
 
 
 
successor   Electricity   Boards   of   the   reorganized   States.     The 
 
 
 
claim was that the purported exercise of power by the Central 
 
 
 
Government was arbitrary, unjust and unfair and had resulted 
 
 
 
in serious anomalies in apportionment of assets and liabilities 
 
 
 
between the two Boards by the impugned Notification/Orders 
 
 
 
dated 02.11.2004 and 04.11.2004.   What was challenged was 
 
 
 
the   manner   of   exercise   of   power   by   the   Central   Government 
 
 
 
and not the statutory provisions in the form of Sections 58(3) 
 
 
 
 
                                                                             1
 
and   58(4)   of   the   MPR   Act   which   vested   such   powers   in   the 
 
 
 
Central   Government.     As   rightly   pointed   out   by   the   learned 
 
 
 
senior counsel for the defendants throughout the pendency of 
 
 
 
the   suit   since   01.12.2004,   no   issue   whatsoever   was   ever 
 
 
 
raised  by the plaintiff as to the validity or constitutionality of 
 
 
 
these statutory provisions.  
 
 
 
16)  It is brought to our notice that MPEB being the successor 
 
 
 
Electricity Board for the reorganized State of M.P., a necessary 
 
 
 
party to the present lis, had filed a separate Writ Petition being 
 
 
 
No.   675   of   2004   before   this   Court   under   Article   32   of   the 
 
 
 
Constitution   of   India   where   identical   pleadings   and   prayers 
 
 
 
were made.  There is no serious dispute as to the relief prayed 
 
 
 
in   the   said   writ   petition.     Though  the   MPEB   approached   this 
 
 
 
Court   by   way   of   a   writ   petition   under   Article   32,   admittedly, 
 
 
 
the     vires     of   those   sections   were   never   challenged. 
 
 
 
Subsequently,   the   said   writ   petition   being   No.   675   of   2004 
 
 
 
along  with three other  writ  petitions  were disposed  of by this 
 
 
 
Court vide judgment dated 13.09.2006.  It is not clear and not 
 
 
 
explained   to   this   Court   why   such   recourse   was   not   adopted 
 
 
 
when the MPEB itself had approached this Court by way of a 
 
 
 
 
                                                                              1
 
writ   petition   to   challenge   the  vires  of   those   provisions   and, 
 
 
 
ultimately, this Court dismissed the said writ petition filed by 
 
 
 
the Board.   It  is to  be noted  that this  Court  did  not find any 
 
 
 
infirmity whatsoever in the manner of exercise of power by the 
 
 
 
Central   Government   under   Sections   58(3)   and   58(4)   of   the 
 
 
 
MPR   Act   while   upholding   the   notifications   dated   02.11.2004 
 
 
 
and 04.11.2004 as being constitutional and not suffering from 
 
 
 
any   vice   of   arbitrariness   as   claimed   by   the   plaintiff-State   of 
 
 
 
M.P.   and   MPEB.     It   was   also   pointed   out   and   also   not   in 
 
 
 
dispute that in the said writ petition, the present plaintiff was 
 
 
 
also   a   party,   even   then   the   plea   of   constitutionality   was   not 
 
 
 
raised.
 
 
 
17)   By way of present amendment, the plaintiff-State of M.P. 
 
 
 
is   seeking   to   challenge   the   validity   of   the   Central   law   in   a 
 
 
 
proceeding   (suit)   initiated   under   Article   131   of   the 
 
 
 
Constitution.     Normally,   for   questions   relating   to   validity   of 
 
 
 
Central   or   other   laws,   the   appropriate   forum   is   the 
 
 
 
extraordinary   writ   jurisdiction   under   Articles   32   and   226   of 
 
 
 
the Constitution of India in a writ petition and not an original 
 
 
 
suit  filed under   Article   131   which  vests   exclusive  jurisdiction 
 
 
 
 
                                                                               1
 
of this Court as regards the dispute enumerated therein.  It is 
 
 
 
relevant   to   point   out   that   Article   131A   of   the   Constitution 
 
 
 
inserted by (42nd  Amendment) Act 1976, provides for exclusive 
 
 
 
jurisdiction   to   this   Court   in   regard   to   questions   as   to 
 
 
 
constitutionality   of   Central   laws.     The   said   Article   131A 
 
 
 
viewed as substantially curtailing the power of judicial review 
 
 
 
of the writ courts, that is, High Courts under Article 226 and 
 
 
 
this Court under Article 32 was omitted vide Constitution (43rd 
 
 
 
Amendment) Act, 1977.   It follows that when the Central laws 
 
 
 
can   be   challenged   in   the   State   High   Courts   as   well   and   also 
 
 
 
before this Court under Article 32, normally, no recourse can 
 
 
 
be   permitted   to   challenge   the   validity   of   a   Central   law   under 
 
 
 
the exclusive original jurisdiction of this Court provided under 
 
 
 
Article 131.
 
 
 
18)   As regards the absence of guidelines in the provisions of 
 
 
 
Sections   58(3)   and   58(4)   of   MPR   Act,   on   behalf   of   the 
 
 
 
defendants   it  was   pointed   out   that   the   manner   of  exercise   of 
 
 
 
power   by   the   Central   Government   has   been  laid  down   in   the 
 
 
 
Sections   itself.     It   is   further   pointed   out   that   various 
 
 
 
correspondences   exchanged   between   the   plaintiff   and   the 
 
 
 
 
                                                                              1
 
defendants placed on record would show that the plaintiff has 
 
 
 
never   acted   under   the   very   same   provisions,   instead   the 
 
 
 
plaintiff-State  has constituted its  own Electricity  Board.   It is 
 
 
 
also   pointed   out   that  the   Ist  Defendant-Union   of  India,   in   its 
 
 
 
written statement highlighted that the Central Government did 
 
 
 
resolve the dispute by passing the impugned Notifications after 
 
 
 
considering the claims of the affected parties.  
 
 
 
19)     Finally,   the   original   plaint   proceeds   that   the   exercise   of 
 
 
 
power   by   the   Central   Government   by   passing   the   impugned 
 
 
 
Notifications   dated   02.11.2004   and   04.11.2004   under 
 
 
 
Sections 58(3) and 58(4) of the MPR Act was arbitrary, unjust 
 
 
 
and   unfair   and   had   resulted   in   serious   anomalies   in   the 
 
 
 
apportionment   of   assets   and   liabilities.     In   our   view,   after 
 
 
 
praying for such relief, if the amendment as sought for by the 
 
 
 
plaintiff   is   allowed   and   the   plaintiff   is   permitted   to   challenge 
 
 
 
the  vires  of the said provisions, then the very basis on which 
 
 
 
the   plaintiff   is   claiming   its   right   to   apportionment   of   assets, 
 
 
 
rights and liabilities of the undivided Board will cease to be in 
 
 
 
existence   and   the   entire   suit   of   the   plaintiff   will   be   rendered 
 
 
 
infructuous.   Moreover, it is settled principle of law that leave 
 
 
 
 
                                                                                1
 
to amend will be refused if it introduces a totally different, new 
 
 
 
and inconsistent case or challenges the fundamental character 
 
 
 
of the suit.  
 
 
 
20)   In spite of the above conclusion, we feel that the plaintiff 
 
 
 
may   be   given   an   opportunity   to   put   forth   its   stand   that   the 
 
 
 
Central   Government   issued   impugned   Notifications/Orders 
 
 
 
without   proper   guidelines   and   affording   opportunity   to   the 
 
 
 
parties   concerned.     It   is   made   clear   that   we   have   not   either 
 
 
 
accepted or concluded the said claim of the plaintiff but in the 
 
 
 
interest   of   justice,   plaintiff-State   of   M.P.   is   permitted   to   raise 
 
 
 
such   objections   at   the   time   of   trial   by   placing   acceptable 
 
 
 
materials.  
 
 
 
21)  With the above observation, I.A. No. 4 of 2009 is disposed 
 
 
 
of with no order as to costs. 
 
 
 
 
 
                                     ...............................................J. 
 
                                      (P. SATHASIVAM) 
 
 
                                                   
 
                                     ...............................................J. 
 
                                     (DR. B.S. CHAUHAN) 
 
 
NEW DELHI;
 
AUGUST 17, 2011.                                                        
 
 
 
 
                                                                                 1
 

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