The High Court dismissed a writ petition challenging the trial court's allowance of a belated amendment to the plaint. The court held that despite the lack of reasons in the non-speaking order, the amendment was necessary for justice and the fulcrum of delay was satisfied.
The petition challenging the allowance of the amendment application is dismissed.
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Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 821 of 2018 Petitioner :- Malti Devi Respondent :- Dilip Kumar Chaturvedi Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- Ramesh Chandra Agrahari,Arvind Srivastava,Rajiv Sharma
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the record.
The present petition is directed against the orders passed by the trial court and that of the revisional court, whereby the application for amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure filed in Original Suit No. 428 of 2002 ( Dilip Kumar Chaturvedi Vs. Smt. Malti Devi), has been allowed.
The grounds to challenge the orders impugned as pressed by the learned counsel for the petitioner is that the proposed amendments are highly belated and were hit by the proviso to Order 6 Rule 17 CPC. Specific objection raised by the petitioner is that lack of due diligence in bringing the proposed amendment has not been explained by the plaintiff in the amendment application and this issue has not been addressed by the court below. No consideration whatsoever has been given to the objections taken by the petitioner regarding delay in bringing the said amendments.
The order of the trial court is a non speaking order. In view of the mandate of the proviso to Order 6 Rule 17, it was not open for the trial court to allow the amendments without recording any reason to disclose the satisfaction drawn by it in allowing the amendment application. The reasoning given by the revisional court could not supplement the order of the trial court. Reference has been made to the judgement of the Apex Court in the case Raj Kishore Jha Vs. State of Bihar reported in (2003) 11 SCC 519 to submit that the reasons are heartbeart of the Order and every judicial or quasijudicial authority is required to pass orders by giving reasons for arriving at its conclusion. Reasons are necessary so that the
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litigating parties must know what has travelled in the mind of the court at the time of passing of the order.
The submission is thus, that the amendment application filed in the year 2016 for bringing the amendment in the plaint relief and the array of the parties, is liable to be rejected.
Learned counsel for the respondents/plaintiff, on the other hand, submits that the proposed amendments were filed soon after the information regarding execution of the freehold deed dated 24.03.2010 had been brought to the knowledge of the court. By placing paragraphs nos. 5 to 10 of the amendment application, learned counsel for the petitioner has submitted that the delay in filing the amendment application has been explained therein. The trial court having been satisfied with the fact that the proposed amendments are necessary to determine the real question in controversy, to grant ultimate relief to the parties and to do substantial justice had allowed the amendment application and permitted the plaintiff to amend the plaint relief.
The revisional court for the said reasoning has refused to interfere.
Having heard the learned counsel for the parties, before dealing with their submissions, it would be appropriate to go through the original plaint and the contents of the amendment application.
A perusal of the plaint indicates that the Original Suit No.428 of 2002 was filed on 28.05.2002 against the petitioners/defendants for two reliefs. Firstly, that a decree of mandatory injunction be granted asking the defendant to remove her unauthorized possession over the disputed site i.e. the suit property. Further relief of permanent injunction has been sought restraining the defendant from getting an order to execute freehold deed in her favour and in case, any such proceedings is undertaken during the pendency of the suit, the same be declared null and void.
It is admitted to the parties that the written statement was filed
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by the defendant on 05.11.2004 and the temporary injunction application seeking to restrain the defendants from getting a freehold deed in thier favour was rejected by the trial court as also by the first appellate court.
It is also admitted that the instant suit has been dismissed for want of prosecution on 23.04.2012 and was restored on 29.11.2012. The District Magistrate, Allahabad, Incharge, Nazul department has been impleaded in the suit as defendant no.2 prior to the filing of the amendment application. It is also admitted to the parties that the factum of execution of the freehold deed dated 26.10.2013 was brought on record of the instant suit in the objection filed by the petitioner/defendant in Misc. Application No.76 of 2012 i.e. which is, the application filed for restoration of the suit.
In paragraph nos. 7 to 10 of the amendment application, the plaintiff/applicant explained as to the delay in brining the proposed amendment. The averments therein are relevant to be reproduced herein under:-
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dh lykg fn;kA
9& ;g fd lykg ds eqrkfcd jftLVªh nQ~rj esa eqok;uk djokdj Qzh gksYM MhM fnukad 23&3&2010 dh izfrfyfi izkIr gksus ij oknh dks fnukad 29&10&2015 dks mDr Qzh gksYM MhM ds ckjs esa tkudkjh gqbZA 10& ;g fd Qzh gksYM MhM dh izfrfyfi feyus ij fnukad 31&10&2015 dks vij ftykf/kdkjh utwy bykgkckn ,oa m0iz0 ljdkj tfj;s dysDVj bykgkckn dks nQk 80 lh0ih0lh0 dh uksfVl bl vk'k; dk fn;k fd vij ftykf/kdkjh utwy ,oa m0iz0 ljdkj dks Hkh mijksDr ewyokn esa i{kdkj cuk;k tk;sxk vkSj ckn xqtjus fe;kn mDr uksfVl vij ftykf/kdkjh ,oa m0iz0 ljdkj dks i{kdkj cukus gsrq ,oa mDr Qzh gksYM MhM dks fujLr djus dk vuqrks"k tksM+us gsrq izkFkZuk i= izLrqr fd;k tk;sxkA
A perusal of the proposed amendment thus clearly indicates that the plaintiff brought amendment in the plaint relief seeking a declaration of freehold deed being null and void, after getting the certified copy of the freehold deed from the office of the Additional District Magistrate, Nazul Allahabad and giving notice under Section 80 C.P.C to the State of U.P., through Collector, Allahabad and Additional District Magistrate , Nazul, who were also impleaded therein as necessary parties in the suit.
The purpose of inserting proviso to Order 6 Rule 17 by Amendment No. 22 of 2002 w.e.f 01.07.2002 has been considered by the Apex Court in the Case of Salem Advocate Bar Association vs Union Of India reported in 2005 (6) SCC 344 and it was held therein that the said provison has been brought in order to deny the frivolous amendments which could cause unnecessary delay in the suit proceedings, however, the power of the Court to a llow amendment of pleading is concerned, the same is wide enough to permit amendment even in cases where there has been delay in filing the said amendment application, for the sufficient cause shown by the party concerned.
The main factor which is to be considered by the court while allowing the amendment is as to whether the proposed amendment
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would subserve the ultimate cause of justice and avoid further litigation. In case of such a situation, this Court has jurisdiction to allow amendment at any stage of the proceedings.
It has been held that the discretion conferred upon the Court by the Code of Civil Procedure cannot be limited in a stright jacket formula and has to be exercised in the facts and circumstances of each case depending on the factual background of that case.
Considering the said legal position relating to amendment of pleading after insertion of proviso to Order 6 Rule 17 CPC, which bars belated amendments, this Court is of the considered view the proposed amendments are necessary for determination of the real question in controversy and are just and proper in the facts and circumstances of the instant case.
The order passed by the trial court may not be happily worded or be a non-speaking order but this Court while exercising supervisory power under Article 227 of the Constitution of India, having been satisfied by the merit of the proposed amendment, does not find any reason to interfere.
The Apex Court in the Case of Surya Dev Rai Vs. Ram Chander Rai and Others reported in 2003 (6) SCC 675 has held that the supervisory power under Article 227 of Constitution of India has been conferred upon this Court in order to keep the subordinate courts within its bounds and only in a given case where material injustice has been caused to the aggrieved party, the interference shall be made by the High Court by invoking the extraordinary supervisory jurisdiction under Article 227. This supervisory power cannot be exercised in a casual manner without considering as to whether the exercise of such power is called for in the facts of a particular case.
For all the aforesaid reasons, no infirmity is found in the order impugned. All other arguments made by learned counsel for the petitioner to assail the order of the trial court in allowing the
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amendment application are not worthy of consideration. The judgements of the Apex Court as relied upon by him are distinguishable in the facts and circumstances of the instant case and are of no help to the petitioner for all the aforesaid reasons.
The present petition is, accordingly, dismissed .
Order Date:- 06.02.2019
Radhika
2 issues framed by the court
Whether the supervisory jurisdiction under Article 227 warrants interference with the revisional court's refusal to set aside the allowance of a belated amendment
Whether reasons for delay in filing the amendment application constitute sufficient cause to satisfy the proviso to Order 6 Rule 17 CPC
Colour shows how this judgement treated each authority
Raj Kishore Jha Vs. State of BiharReferred¶8
Raj Kishore Jha Vs. State of Bihar (2003) 11 SCC 519 · Who else cites this
Salem Advocate Bar Association vs Union of IndiaRelied on¶27
Salem Advocate Bar Association vs Union Of India 2005 (6) SCC 344 · Who else cites this
Surya Dev Rai Vs. Ram Chander Rai and OthersRelied on¶34
Surya Dev Rai Vs. Ram Chander Rai and Others 2003 (6) SCC 675 · Who else cites this
2 provisions across 2 enactments
Malti Devi
Dilip Kumar Chaturvedi
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
