High Court dismissed a revision petition challenging the trial court's refusal to allow amendment of plaint. The amendment sought to introduce a plea of joint marriage, which the court held was a new cause of action causing prejudice and not permissible under Order 6 Rule 17 CPC.
The revision petition was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
C.R. No. 99 of 2010. Decided on: 13th December, 2010.
Ishwari Devi.
…Petitioner.
-Versus-
Bhupinder Singh and Others.
…Respondents.
Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No.
____________________________________________________________ For the petitioner. : Mr. Deepak Bhasin, Advocate. For the respondents. : Mr. Suneet Goel, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral) :
This Revision Petition is directed against the order dated 25.06.2010, passed by the learned Civil Judge (Junior Division), Court No. 2, Rohru, District Shimla in C.M.A. No. 117/6 of 2010 in Civil Suit No. 77/1 of 2010.
1 Whether the reporters of the local papers may be allowed to see the judgment?. No.
the parties.
plaintiff is widow of Najjar Mal. The mutation No. 67 in Chak Khabbal and mutation No. 151 in Chak Tikkari pertain to the suit land. According to her, the mutations were attested in contravention of the provisions of Hindu Succession Act. According to her, the suit land was recorded in the joint ownership and possession of the legal representatives and the status of the family was joint, however, the parties were living separately by way of family arrangement. She has also assailed the execution of Will No. 47/07, dated 01.08.2007 executed by late Kathi in favour of defendant No. 1.
opposite party. The factum of joint marriage of the plaintiff with S/Shri Najjar Mal and Sham Singh was altogether a new plea raised for the first time in an application preferred under Order 6 Rule 17 of the Code of Civil Procedure.
“58. 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.
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 party 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 consideration while awarding the costs.
(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 VI Rule 17. These are only illustrative and not exhaustive.
“18. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the
law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge.”
(Rajiv Sharma) Judge
December 13, 2010. (bhupender)
3 issues framed by the court
Whether the trial court erred in dismissing an application for amendment of plaint under Order 6 Rule 17 CPC when the amendment introduced a new plea of joint marriage not raised earlier.
Whether the proposed amendment changed the nature of the suit and caused prejudice to the opposite party that could not be compensated by costs.
Whether the application for amendment was bona fide and necessary for determining the real question in controversy.
Colour shows how this judgement treated each authority
Revajeetu Builders and Developers versus Narayanaswamy and sons and othersReferred¶26
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Rajkumar Gurawara (Dead) through LRs versus S.K. Sarwagi and Company Private Limited and anotherReferred¶40
Rajkumar Gurawara (Dead) through LRs versus S.K. Sarwagi and Company Private Limited and another, (2008) 14 SCC 364 · Who else cites this
1 provisions across 1 enactments
Ishwari Devi
Bhupinder Singh
Others
Rajiv Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
