Smt. Jyoti and Another Vs Addl. Distt. Judge Court No. 9 Distt. Barabanki and 5 Others

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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MATTERS UNDER ARTICLE 227 No. - 5660 of 2025

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Smt. Jyoti And Another

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.....Petitioner(s)

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Versus

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Addl. Distt. Judge Court No. 9 Distt. Barabanki And 5 Others .....Respondent(s) Counsel for Petitioner(s) : Mohd. Ahsanussamad Faridi, Mahnaz Bano, Mohd. Imran, Sudhir Kumar Counsel for Respondent(s) : Ravi Kumar Singh

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Court No. - 7

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HON'BLE JASPREET SINGH, J.

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Heard Shri M.A. Faridi, learned counsel for the petitioners and Shri Mandeep Kumar Mishra, learned counsel for the private-respondents No.2 to 6, who has filed his Vakalatnama along with his counter affidavit, which has already been received by the learned counsel for the petitioners and the counsel for the petitioners has also filed his rejoinder affidavit and both the counter affidavit and the rejoinder affidavit are taken on record.

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This is the defendants' petition assailing the order passed by the trial Court whereby by means of the order dated 31.01.2025, an application moved by the private-respondents seeking amendment in their plaint was allowed. The said order was assailed by filing a revision bearing No.20/2025 which has also been dismissed by means of the order dated 06.08.2025 and the aforesaid two orders are under challenge in the instant petition.

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The submission of the learned counsel for the petitioners is three fold:-

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(i) the amendment sought to be introduced changes the complete nature of the controversy and it amounts to superimposing a fresh cause of action, which cannot be permitted through an amendment.

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(ii) The application for amendment has been moved with much delay and there is nothing on record to indicate that the plaintiff exercised due diligence nor it has been pleaded in the said

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application as to why the cause which was already known and available to the private-respondents could not be raised at the time of institution of the suit.

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(iii) The prayer which is sought to be introduced by the amendment, is apparently time barred, hence, such an amendment also cannot be allowed.

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It is further urged that these three crucial aspects has not been considered either by the trial Court or by the revisional Court, hence, the impugned orders are bad in the eyes of law.

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In support of his submissions, learned counsel for the petitioners has relied upon the decisions of the Apex Court in (i) M/s. Modi Spinning and Weaving Mills Co. Ltd. and another v. Ladha Ram and Company, AIR 1977 SC 680 ; (ii) Rajkumar Gurawara v. S.K. Sarwagi and Company Private Limited and others, (2008) 14 SCC 364 ; (iii) Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, (2009) 10 SCC 84 ; (iv) Ahmad Nabi and another v. Ram Deen and others, 2015 (33) LCD 708 .

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On the other hand, Shri Mishra, learned counsel for the privaterespondents submits that initially a suit for injunction was filed wherein it was stated that the property was joint and being a dwelling house, it was not open for one of co-sharer i.e. the private-respondent No.2 to transfer or alienate the property and moreover, the transferee i.e. the petitioner No.1 would have no right in the property. Hence, the plaintiffs (the privaterespondents herein) were under a threat of the property in question from being demolished by the defendants of the suit, hence, simplicitor prayer for an injunction was sought

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It is urged that after the objections to the application under Order XXXIX Rules 1 and 2 CPC were filed, the plaintiffs came to know that the property had been sold out and thereafter the plaintiffs taking stock of the situation moved an application for amendment on 22.12.2023 seeking a relief of cancellation of the sale-deed and also amended certain paragraphs of the plaint to bring it in consonance with the pleadings in context with the relief of cancellation of sale-deed which was introduced.

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It is urged that the aforesaid amendment does not change the nature or the cause of action for the suit and moreover it has been filed at the pre-trial stage and as per the settled law, the private-respondents' application for amendment should have been liberally construed which has been done by the two Courts and especially when the issues have not yet been framed, hence, it cannot be said that the petitioners have been put to any prejudice, as they still have a right of filing their objections/additional written statement to the amended pleas and upon framing of the expressive issues, parties can lead their evidence which can culminate in a proper and complete trial. For the aforesaid reasons, the orders passed by the two Courts do not suffer from any jurisdictional error, which may persuade this Court to entertain the petition. Thus, for the said reasons, it is urged that the petition be dismissed.

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The Court has considered the rival submissions and also perused the material available on record. However, before proceeding any further, it will be relevant to notice the decisions cited by the learned counsel for the petitioners.

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As far as the decision of the Apex Court in M/s. Modi Spinning and Weaving Mills Co. Ltd. (supra) is concerned, needless to say that the propositions laid down has not been disputed rather the same has also been followed with approval by the Hon'ble Supreme Court itself in a subsequent decision in Revajeetu Builders and Developers (supra). However, noticing the guidelines which have been laid down by the Apex Court in Revajeetu Builders and Developers (supra), it will be appropriate to take a glance at the relevant paragraphs:-

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" Whether amendment is necessary to decide real controversy.

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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.

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No prejudice or injustice to other party

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The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice

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

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In Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393, this Court has rightly observed : (SCC p. 399, para 22).

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"22. . . . The power to allow an amendment is

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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."

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(emphasis supplied).

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Costs

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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.

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(i) At what stage the amendment was sought?

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(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;

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(iii) The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly.

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(iv) The imposition of costs should not be symbolic

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but realistic;

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(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.

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

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All these aspects must be carefully taken into consideration while awarding the costs.

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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:

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(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

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(2) whether the application for amendment is bona fide or mala fide;

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(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

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(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

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(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

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(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.

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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.

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The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

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The issue before the Apex Court in Rajkumar Gurawara (supra) also has been noticed and the core question before the Apex Court in the said case was whether the amendment proposed was necessary and if so then it can be allowed at any stage for determining the real controversy in question. The issue regarding due diligence has been confined in respect of those cases where after commencement of trial, the amendments are sought at a later stage and in such circumstances, the Apex Court held that such amendments which are filed with delay and after commencement of the trial should be scrutinized more strictly and unless due diligence is shown, it may not be allowed, as a matter of course.

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In Ahmad Nabi (supra), a Coordinate Bench of this Court also rejected the application for amendment primarily noticing the fact that the pleadings have been exchanged, issues were framed and date was fixed for evidence and only thereafter the application for amendment was moved and that too in respect of a cause of action which was already known and within the knowledge of the defendants in the said case and in the aforesaid backdrop, the Coordinate Bench of this Court rejected the application for amendment.

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Now, having taken note of the guidelines which have been laid down by the Apex Court in Revajeetu Builders and Developers (supra) and applying its principles to the instant case, it would reveal that the basic cause of action as pleaded by the plaintiffs rests on the fact that the property in question belongs to a Hindu undivided family and that there has been no partition till date. It is also the case that without partition, none of the parties could have alienated the property. It is also the case that in case of any alienation, the subsequent purchaser, who may be a third party may not have a right and at best he would be entitled to a decree of partition. It is also stated in the plaint that after the institution of the suit which was primarily

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for a decree of permanent injunction, the plaintiffs came to know about the date of the execution of the sale-deed which thereafter has been challenged by incorporating a relief of cancellation of the sale-deed and other consequential amendments.

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The record further indicates and reliance has been placed by the learned counsel for the petitioners that in the plaint itself in Para-6, the plaintiffs had indicated that the property has been sold out by the petitioner No.2 in favour of the petitioner No.1. On the aforesaid strength, it is sought to be urged that the amendment has come at a later stage and even though if at all there is any cause of action, it is open for the plaintiffs to file a separate suit, however, such an amendment cannot be introduced.

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Insofar as the aforesaid submission is concerned, it does not cut ice with the Court for the reasons that the Court is to look into an application for amendment not on the basis of merit but only on the basis as to whether such an amendment could have been permitted or not in light of the guidelines laid down by the Apex Court in Revajeetu Builders and Developers (supra).

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As already noticed above, the instant prayer for incorporating the relief of cancellation cannot be said to be time barred at this stage, for the reason that would be issue of mixed issue of law and fact which can only be ascertained, after parties lead the evidence. But, prima-facie , what is evident from the record is that the sale-deed in question was executed on 24.12.2020. Initially, the suit for injunction came to be filed on 21.01.2023 and the application for amendment was filed on 22.12.2023. Thus, without entering into the merits, prima-facie , just to deal with the contention of the learned counsel for the petitioners, the prayer cannot be said to be time barred, however, this expression may not be taken as an opinion on merits and would always be subject to the outcome of the defence and issues, upon which the evidence is led by the parties during trial.

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Another undisputed fact that emerges from the record is that the issues have not yet been framed. This would be pre-trial amendment and even as stated by the Apex Court in Revajeetu Builders and Developers (supra) which is heavily relied upon by the petitioners of such amendment of pretrial stage which does not change the cause of action should be liberally

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construed.

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The amendment proposed does not change the nature of the suit, but on the basis of given facts an additional relief has been sought which is permissible and meets the real controversy test. No prejudice can be said to be caused to the petitioners.

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As far as the other submissions of the learned counsel for the petitioners that the private-respondents have not shown due diligence in light of the proviso appended to Order VI Rule 17 CPC is concerned that also does not impress this Court for the reason that such due diligence is to be pleaded and shown once the amendment is sought in the post trial stage which is not the case here.

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Considering the basic facts which have been pleaded in the plaint upon which an additional relief seeking cancellation which has been sought and can be introduced and such an amendment cannot be said to be malafide or hit by any provision of law. Hence, the exercise of jurisdiction both by the trial Court and the revisional Court cannot be said to be bad in the eyes of law.

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For all the aforesaid reasons, this Court does not find that the petition has any merit, hence, it is accordingly dismissed . There shall be no order as to costs.

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(Jaspreet Singh,J.)

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September 25, 2025

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Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Smt. Jyoti and Another v. Addl. Distt. Judge Court No. 9 Distt. Barabanki and 5 Others

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Smt. Jyoti and Another v. Addl. Distt. Judge Court No. 9 Distt. Barabanki and 5 Others

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