Allowed

Indresh Patel v. Narad Chaudhary

Chhattisgarh HC8 Sept 2024WP227/612/2021

Case brief

AI extract

What is this about?

Writ petition challenging dismissal of an application to amend a written statement in a specific performance suit. The High Court held that the amendment was necessary to clarify the plaintiff's identity and avoid multiplicity of proceedings, adhering to liberal principles under Order 6 Rule 17 CPC.

What did the court decide?

Impugned order setting aside amendment application set aside; amendment application allowed subject to payment of costs; trial court permitted to permit amendment and afford opportunity to respondent

Indresh Patel Vs Narad Chaudhary — Property and Title | Chhattisgarh HC (2024)

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2024:CGHC:34991

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 612 of 2021

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Indresh Patel S/o Late Chhabinath Patel Aged About 22 Years Occupation - Student, R/o Village - Khokhara, Post - Tarkela, Tahsil - Pusaur, District Raigarh (Chhattisgarh)

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... Petitioner/Defendant No.2

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versus

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1. Narad Chaudhary S/o Late Thansingh Chaudhary, Aged About 40 Years Occupation - Agriculture And Shopkeeper, R/o Village - Kodatarai, Tahsil - Pusaur, District - Raigarh (Chhattisgarh) (Plaintiff)

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2. Smt. Sarita Patel W/o Late Chhabinath Patel Aged About 39 Years Occupation - Govt. Employee, R/o Village - Khokhara, Post - Tarkela, Tahsil - Pusaur, District - Raigarh (Chhattisgarh) (Defendant No.1)

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3. Minor Suyash Patel S/o Late Chhabinath Patel Aged About 17 Years Occupation - Student, R/o Village - Khokhara, Post Tarkela, Tahsil Pusaur, District - Raigarh (Chhattisgarh), Through His Natural Guardian And Mother Smt. Sarita Patel W/o Late Chhabinath Patel, Aged About 39 Years, R/o Village - Khokhara, Post Tarkela, Tahsil Pusaur, District - Raigarh (Chhattisgarh) (Defendant No.3)

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4. The State Of Chhattisgarh Through The Collector, District Raigarh (Chhattisgarh)

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... Respondents

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For Petitioner : Mr. Roop R. Naik, Advocate. For Respondent No.1: Mr. Sourabh Sharma, Advcoate. For State : Mr. Amandeep Singh, PL.

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Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board

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09/09/2024

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1. This petition has been filed under Article 227 of the Constitution of India assailing the legality and validity of the order dated 25.08.2021 passed by the District Judge, District Raigarh (C.G.) in Civil Suit No.A/38/2016, whereby the application filed by the petitioner/defendant No.2 under Order 6 Rule 17 of the CPC for amendment in the pleadings, was dismissed.

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2. Brief facts of the case are that respondent No.1/plaintiff has filed a Civil Suit for specific performance of contract and in alternative to recover the consideration amount with interest by making an averment inter alia that the father of the petitioner Chhabilal Patel had entered into an agreement on 04.09.2023 and earlier on the basis of compromise that took place between the mother of the petitioner and the plaintiff, an award has been passed in favour of the plaintiff on 08.07.2016. The said award has been challenged by the petitioner herein as no permission has been obtained to appoint the guardian as the petitioner was minor at the relevant time. In WP277 No.711/2018 dated 28.01.2020, the said objection was sustained and writ was allowed and the award dated 08.07.2016 was set-aside, therefore, the matter was remitted back for fresh adjudication. Due to Covid-19 pandemic, the Suit was reopened on 06.03.2021, thereafter, the present petitioner herein was filed an application under Order 6 Rule 17 of the CPC for amendment in the written statement alleging that the name of his father is wrongly mentioned in the questioned

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agreement and his actual name is Chhabinath Patel and the same was recorded in the service record also. Taking such plea, the petitioner has raised an objection that no such agreement has been executed by his father and there was some manipulation in the agreement itself. Further, the other share holders of the subject land who are also necessary party were not arrayed as a party for the specific performance and without impleading them, the Suit is not maintainable. The said application has been opposed by respondent No.1/plaintiff by making an averment that the said objection has already been raised in the written statement and further, after the commencement of the evidence, proviso to Order 6 Rule 17 of the CPC attracts, therefore, amendment could not be allowed. Learned trial Court has allowed the said objection and dismissed the application. Hence this petition.

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3. Learned counsel for the petitioner submits that it is an admitted fact that respondent No.1/plaintiff, without appointing a legal guardian through his mother, obtained an award in his favour on 08.07.2016 and the same was challenged by the petitioner in the Writ Petition, which was allowed on 28.01.2020 and thereafter, due to Covid-19 pandemic, on 06.03.2021, the Suit was reopened. In the said fact situation, the petitioner, after attaining the majority, came to notice that his father’s name was not impleaded properly in the plaint itself and in the agreement also, the name of his father was written differently, therefore, he has taken a plea that his father has not entered into any agreement with respondent No.1/plaintiff. He further submits that respondent No.1/plaintiff has sought specific performance of the subject land wherein, the other co-sharers are also necessary party, who were not impleaded and the effect of the said legal plea ought to have been ascertained during trial but the trial Court has only on the ground that in the specific performance suit, co-sharers are not necessary party and defendant has an

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opportunity to raise such objection earlier and no explanation has been offered thereof, dismissed the application. He would further submit that even on the date of passing of the impugned order, the trial Court itself recast the issues again, therefore, no prejudice has been caused to the other side as the said amendment application has been allowed. In view of such circumstances, he further submits that the impugned order is not sustainable and the petitioner may be permitted to incorporate the aforesaid amendment in the written statement.

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4. On the contrary, learned counsel for respondent No.1 would support the impugned order and submits that if the subject amendment is allowed, respondent No.1/plaintiff may be given an opportunity for the consequential amendment.

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5. Heard learned counsel for the parties at length and also perused the documents annexed with the petition carefully.

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6. In the matter of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and another reported in AIR 2022 SC 4256, at para 70 the following parameters have been laid down for consideration of the amendment application, which read thus:-

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“ 70. Our final conclusions may be summed up thus:

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(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

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(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.

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(iii) The prayer for amendment is to be allowed

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(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

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(ii) to avoid multiplicity of proceedings, provided

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(a) the amendment does not result in injustice to the other side,

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(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

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(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

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(iv) A prayer for amendment is generally required to be allowed unless

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(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

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(ii) the amendment changes the nature of the suit,

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(iii) the prayer for amendment is malafide, or

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(iv) by the amendment, the other side loses a valid defence.

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(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

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(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

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(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

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(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

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(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

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(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

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(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.”

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7. In view of the aforesaid settled principles, it is explicit that normally all amendments are to be allowed which are necessary for determining the real question in controversy which does not cause injustice or prejudice to the other side. Where the amendment is sought before commencement of the trial, the Court is required to be liberal in its approach. The proviso to Order 6 Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced. Now the law is also well settled that the date on which the issues are framed is the date of the first

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hearing and the same has been reiterated in the matter of Vidyabai And Others v. Padmalatha And Another, (2009) 2 SCC 409.

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8. In the instant case, on the date when the amendment application was dismissed, the trial Court itself has recast the issues. Earlier during the minority of the petitioner herein, a compromise has been arrived through his mother with the plaintiff and the same was challenged by the petitioner herein in the Writ Petition, which was allowed by the Writ Court on 28.01.2020. Thereafter, after Covid-19 pandemic, the Suit was reopened on 06.03.2021 even before the commencement of the evidence of other side as no crossexamination has been started. The subject amendment application has been filed to elaborate the fact that the name of the father is not recorded in the agreement which itself creates doubts on the said transactions and also on the other co-sharers who were not arrayed as a party. In the fact situation of the case, an inference could be drawn that the petitioner is deligent as respondent No.1/plaintiff himself has stated the facts in a different manner. However, in service record, when the petitioner herein has taken a plea that his father’s name is different, what would be the outcome of the said plea is a different matter, therefore, it could not be said that the petitioner is not deligent when he had challenged the award, which was awarded in favour of respondent No.1/plaintiff and succeeded. Thereafter, with the help of the lawyer, he has filed the amendment application.

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9. For the foregoing, this Court is of the view that the impugned order is not sustainable and the same is liable to be and is hereby set-aside. Accordingly, the subject amendment application is allowed subject to payment of cost of Rs.1000/- within a period of 21 days from the date of receipt of copy of this order, which shall be paid to the respondent No.1/plaintiff through his counsel, failing which this order shall lose its efficacy.

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10. Upon deposit of the said cost, the trial Court shall permit the petitioner to carry out the aforesaid amendment in the written statement and thereafter, afford a fair and reasonable opportunity to the respondent for consequential amendment if any.

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11. With the aforesaid observations, this Writ Petition is allowed.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Priyanka

Indresh Patel v. Narad Chaudhary

Case brief

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Indresh Patel v. Narad Chaudhary

Case brief

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