Allowed

Suresh Sood v. Anita

Himachal Pradesh HC12 Jun 2024CMP/5433/2023

Case brief

AI extract

What is this about?

The High Court examined an application for amendment of plaint to include a prayer for declaration of easement rights. Ruling that the 2002 Amendment Act's limitation proviso was retrospective to pre-2002 suits, the court held the amendment permissible as it clarified existing facts and did not alter the suit's nature.

What did the court decide?

Application to amend the plaint allowed subject to payment of costs; amended plaint taken on record.

Suresh Sood Vs Anita — Property and Title | Himachal Pradesh HC (2024)

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Suresh Sood Vs. Anita & Ors

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RSA No. 558 of 2007 Reserved on: 28.5.2024

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12.06.2024 Present

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Mr. K.D. Sood, Senior Advocate with Mr. Het Ram Thakur, Advocate, for the appellant.

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Mr Romesh Verma, Senior Advocate with Mr. Digvijay Singh Bisht, Advocate, for respondents No. 4 to 7. Respondents No. 1 to 3, 8 and 9 are already ex-parte vide order dated 13.06.2019.

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CMP No. 5433 of 2023

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The applicant/appellant/plaintiff has filed

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the present application under Order 6 Rule 17 read with Section 151 of CPC for amendment of the plaint. It is asserted that the plaintiff has filed the present suit seeking a permanent prohibitory injunction and mandatory injunction pleading that he has a passage to his property, which has been in existence for more than 70 years from the time of his predecessors and is being used uninterruptedly, peacefully and as a matter of right as an easement. The plaintiff has sought the relief of injunction and relief of removal of obstruction to the passage. The plaintiff has not sought the declaration that he be declared to have

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acquired the right of passage as claimed in the plaint. When the matter was listed for hearing, the respondents/defendants raised an objection that in view of the judgment of this Court dated 29.05.2019 in RSA No. 407 of 2018 titled Jaram Singh Vs. Santosh reported in 2019(3) HLR 1519 , the relief of injunction cannot be granted without seeking a declaration. All the relevant facts to seek relief have already been pleaded. However, the plaintiff wants to seek a declaration regarding his entitlement to the right of passage to avoid any technical objection and ambiguity. The amendment will not cause any prejudice to the respondents/defendants and is necessary for determining the controversy between the parties. It has become necessary to seek the declaration in view of the judgment of this Court. Therefore, it was prayed that the present application be allowed and the applicant/plaintiff be permitted to amend the plaint.

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The application is opposed by filing a reply taking preliminary objections regarding lack of maintainability, the applicant being estopped to file

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the present application by his acts, conduct and deeds and the application not being bona-fide. The contents of the application were denied on merits. It was asserted that the suit was filed on 02.06.2000 and the matter is pending before various Courts. The plaintiff failed to seek relief, which shows a lack of due diligence on his part. The suit is not maintainable in view of the judgment of this Court. The plea taken in the application is mutually destructive because it has been asserted that all the facts have been pleaded and at the same time the amendment has also been sought which is not permissible. The claim for declaration sought to be made by filing the application is barred by limitation. The application has been filed to fill up the weak points left in the plaint. Therefore, it was prayed that the present application be dismissed.

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A rejoinder denying the contents of the reply and affirming those of the application was filed.

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I have heard Mr. K.D. Sood learned Senior Advocate assisted by Mr Het Ram Thakur, learned

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counsel for the applicant/appellant/plaintiff and Mr Romesh Verma, learned Senior Advocate assisted by Mr Digvijay Singh Bisht, Advocate for respondents No. 4 to 7.

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Mr. K.D. Sood, learned Senior Advocate for the applicant/appellant submitted that the proposed amendment has become necessary in view of the judgment passed by this Court, which was not in existence on the date of the filing of the suit. Therefore, he prayed that the present application be allowed and the applicant/plaintiff be permitted to amend the plaint.

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Mr. Romesh Verma, learned Senior Advocate for the respondents No. 4 to 7 submitted that the present application is not maintainable because nothing has been shown as to why the amendment could not be sought before the commencement of trial. The matter remains pending before various Courts since 2000 and the plaintiff had sufficient opportunity to amend the plaint. He failed to do so and the application is barred by the

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provisions of Order 6 Rule 17 of CPC. Hence, he prayed that the application be dismissed.

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I have given considerable thought to the submissions and have gone through the records carefully.

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The reply shows that the suit was filed on 02.06.2000 which means that it was filed before the enforcement of the Code of Civil Procedure Amendment Act, 2002 which came into force w.e.f. 01.07.2002. It was laid down by the Hon’ble Supreme Court in State Bank of Hyderabad v. Town Municipal Council , (2007) 1 SCC 765: 2006 SCC OnLine SC 1322 that the proviso will not apply to the pleadings which were filed before the amendment came into force. It was observed as under: -

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4. The short question which arises for consideration is as to whether the proviso appended to Order 6 Rule 17 of the Code is applicable in the instant case.

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5. Order 6 Rule 17 of the Code reads thus:

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“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

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determining the real questions in controversy between the parties.”

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6. The proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 1-7-2002. It reads as under:

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“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.”

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7. Section 16(2) of the amending Act of 2002 reads as under:

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“16. (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,—

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( a )***

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( b ) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;”

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8. In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order 6 Rule 17 of the Code shall not apply.

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This position was reiterated in Sumesh Singh v. Phoolan Devi, (2009) 12 SCC 689 : (2009) 4 SCC (Civ) 816: 2009 SCC OnLine SC 764 wherein it was held as under:-

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14. By reason of Section 16(2)( b ) of the Code of Civil Procedure (Amendment) Act, 2002, the amendments carried out therein shall only apply to in respect of the suits which were filed thereafter. (See State Bank of Hyderabad v. Town Municipal Council [(2007) 1 SCC 765 ].) As the suit had been filed in the year 1999, the proviso appended to Order 6 Rule 17 shall not apply.

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10. This Court also took a similar view in

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Rajeev Sood v. Devinder Sain Chopra, 2015 SCC OnLine

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HP 1584 and observed as under: -

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At the outset, it may be observed that even the learned counsel for the respondents has fairly conceded that the order passed by the Court below dismissing the application only on the ground of due diligence cannot be supported in law. He has fairly submitted that the amendment brought about the Code of Civil Procedure by Amendment Act 22 of 2002 with effect from 01.07.2002, more particularly, provisions of Rule 17 of Order 6 CPC would only operate prospectively and not to the proceedings already instituted.

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It is also not in dispute that this legal position has already been set at rest by the judgment of the Hon'ble Supreme Court in State Bank of Hyderabad v. Town Municipal Council (2007) 1 SCC 765 wherein it was categorically held that by reason of Section

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16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, the amendments carried out therein would only apply in respect of the suits which were filed after 01.07.2002. As the suit in the present case has admittedly been filed in the year 1982, the proviso appended to Order 6 Rule 17 CPC as applied by the learned District Judge does not apply to the present proceedings.

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It was laid down by the Hon’ble Supreme

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Court in Shivshankara v. H.P. Vedavyasa Char, 2023 SCC OnLine SC 358=AIR 2023 SC 1780 that all amendments are to be allowed which are necessary for determining the real question in controversy between the parties and which do not cause any loss to another side that cannot be compensated in terms of money. It was observed:-

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20. In the contextual situation, it is relevant to refer to the decision of this Court in Gayathri Women's Welfare Association v. Gowramma (2011) 2 SCC 330 wherein the observation in the decision of this Court in Pandit Ishwardas v. State of Madhya Pradesh(1979) 4 SCC 1633 at paragraph 34 which was quoted with agreement, as under:—

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“34. In Ishwardas , it has been observed as follows (SCC P. 166, Para 5):

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5. There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate court should observe the wellknown principles subject to which

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amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate court permitting an amendment at the appellate stage merely because the necessary material is not already before the court.”

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21. After quoting the same it was observed in the Gayathri Women's Welfare Association's case (supra) thus:—

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“These observations clearly indicate that one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate sage, the reason why it was not sought in the trial court.”

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This position was reiterated in Ganesh

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Prasad v. Rajeshwar Prasad, 2023 SCC OnLine SC 256

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wherein it was observed:-

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33. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to

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Order VI Rule 17 being one of them. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511 , the law has been laid down by this Court in the following terms: (SCC p. 517, para 16)

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“ 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 [AIR 1957 SC 363] 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. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar [(1990) 1 SCC 166] .)”

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xxxxxx

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35. In B.K.NarayanaPillai v Parameswaran Pillai reported in (2000) 1 SCC 712 , this Court referred to the following passage from A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in AIR 1967 SC 96 wherein, it was held as follows:—

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“ 4. This Court in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn. [AIR 1967 SC 96 : (1966) 1 SCR 796] held:

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“The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on a new case or cause of action is barred: Weldon v. Neal [[L.R.] 19 Q.B. 394: 56 LJ QB 621]. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan [AIR 1921 PC 50: ILR 48 Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357: 1957 SCR 438]

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The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith [[L.R.] 26 Ch. 700: 53 LJ Ch 891: 51 LT 729]) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended ( Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644: 11 Bom LR 1042 ] approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda

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Patil [AIR 1957 SC 363: 1957 SCR 595] ).

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The expression cause of action in the present context does not mean ‘every fact which it is material to be proved to entitle the plaintiff to succeed’ as was said in Cooke v. Gill [[L.R.] 8 C.P. 107: 42 LJCP 98: 28 LT 32] in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd. [[1962] 2 All ER 24 (CA)] and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words ‘new case’ have been understood to mean ‘new set of ideas ’: Dornan v. J.W. Ellis and Co. Ltd. [[1962] 1 All ER 303 (CA)] This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.”

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Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court held : (SCC p. 399, para 22)

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“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

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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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In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it was held : (SCC p. 93, para 4)

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“4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.”……”

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36. In one of the recent pronouncements of this Court, in the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited, Civil Appeal No. 5909 of 2022 dated 01.09.2022 , the position of law has been explained as under:

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“70. ….. (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 the 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 timebarred 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 pinpointedly 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 timebarred cause of action, the amendment is liable to be allowed even after the 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 the 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 the amendment. As such, where the amendment does not result in irreparable

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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. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897 )”

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37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for the determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.

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38. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.

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In the present case the plaintiff had filed a

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Civil Suit for injunction. This Court laid down in Janak Singh Vs. Santosh (supra) that it is necessary to seek the relief of declaration when a suit is filed based on the easement. This judgment was delivered after the

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suit was filed and the matter was decided by the learned District Judge. This judgment was not in existence on the date of filing of the suit; therefore, the plaintiff had reasonable cause not to seek a declaration at the time of filing the suit.

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The proposed amendment is necessary to completely adjudicate the dispute between the parties. It will not cause any prejudice to the other side, which cannot be compensated in terms of money.

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It was submitted that the amendment is barred by limitation and cannot be allowed. It was rightly submitted by Mr. K.D. Sood learned Senior Advocate for the appellant that all the facts justifying the grant of relief have been pleaded and no new fact is being pleaded. The plaintiff had only omitted to sue for the declaration which became necessary after the judgment of this Court in Janak Singh Vs. Santosh (supra) . Hence, the amendment is an alternative approach to the existing facts and cannot be disallowed merely because it was claimed after the delay.

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In view of the above, the present application is allowed subject to the payment of costs of ₹ 5,000/-. The amended plaint be taken on record. The amended written statement, if any, be filed within four weeks and replication to the amended written statement, if any, be filed within three weeks, thereafter.

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The present application stands disposed of.

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(Rakesh Kainthla) Judge 12 June, 2024 (Shamsh Tabrez)

Suresh Sood v. Anita

Case brief

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Suresh Sood v. Anita

Case brief

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