Dhani Ram Vs Union of India

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Dhani Ram Vs. UOI & anr. Reserved on: 29.05.2024

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RSA No. 128 of 2010

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12.06.2024 Present Mr. K.D Sood, Senior Advocate, with Mr. Het Ram Thakur, Advocate, for the appellant.

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Mr Balram Sharma, Deputy Solicitor General of India, for the respondents.

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CMP No. 7796 of 2022

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The applicant/appellant/plaintiff has filed the present application seeking amendment of the plaint to define the Kutcha passage 1½ to 2 mtrs passing through Khasra No. 170 and 171 to Khasra No. 174 situated in Mauza Kadon, Pragna Lachhdang, Tehsil Kasauli, District Solan, H.P. It has been asserted that the plaintiff filed a Civil Suit in the Court of learned Civil Judge (Junior Division), Kasauli, H.P. for a permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiff over the suit land falling in Khasra No. 174 measuring 14-1 bighas situated in Mauza Kadon, Pragna Lachhdang, Tehsil Kasauli, District Solan, H.P. as well as restraining the defendants from obstructing or blocking Kutcha passage, which is about 1.52 meters. in width and passes through Khasra Nos. 170 and 171. The suit was decreed by the learned Trial Court.

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However, learned Additional District Judge, Solan partly set aside the decree regarding the passage claimed through Khasra Nos. 170 and 171 on the ground that the path was not specified. The existence of the path was proved from the evidence on the record as well as the demarcation report and tatima attached therewith. The Katcha path starts from point “A” to point “B”, marked in the tatima (Ex. DW-1/B) attached with the demarcation report. It has become necessary to amend the plaint to describe the location of the path. The proposed amendment will not take the defendants by surprise as no new case is being set up. Only the pleadings are being clarified, which would not cause any prejudice or loss to the defendants. The plaintiff had handed over the papers for filing the suit to his counsel. The counsel drafted the suit and it was decreed by the learned Trial Court. The learned First Appellate Court had taken a technical view of the matter. Hence, the amendment has become necessary to remove the defect pointed out by the learned First Appellate Court. Therefore, it was prayed that the present application be allowed and the plaintiff be permitted to amend the plaint.

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The application was opposed by filing a reply denying the contents of the application. It was asserted that the applicant has no locus standi to file the present application. He has no right, title or interest over the suit land. No cause of action arose in his favour. The applicant has not come to the Court with clean hands. The learned Trial Court erred in decreeing the suit and the learned First Appellate Court has rightly reversed the judgment and decree passed by the learned Trial Court for want of identification of the path. The plaintiff has failed to establish the easementary rights to use the path. The Regular Second Appeal was filed about 12 years ago. The application is silent as to why the proposed amendment could not be sought before the commencement of trial despite the exercise of due diligence. The application is barred by limitation. Therefore, it was prayed that the present application be dismissed.

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I have heard Mr. K.D. Sood, learned Senior Advocate, assisted by Mr. Het Ram Thakur, learned counsel for the applicant/appellant and Mr. Balram Sharma, learned Deputy Solicitor General of India for the respondents.

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Mr. K.D. Sood, learned Senior Advocate for the applicant/appellant submitted that the learned Trial Court had decreed the suit, but the decree was reversed by the learned First Appellate Court on technical ground that the path was not identified. The path was duly identified in demarcation conducted in the presence of the respondents. It has become necessary to incorporate the result of demarcation to identify the path so that an executable decree can be passed in the present case. Therefore, he prayed that the present application be allowed and the applicant/appellant/plaintiff be permitted to amend the plaint.

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Mr. Balram Sharma, learned Deputy Solicitor General of India for the respondents submitted that as per proviso to Order 6 Rule 17 of CPC, pleadings cannot be amended unless the party applying for the amendment satisfies the Court that he could not apply for the amendment before the commencement of trial despite the exercise of due diligence. This proviso is mandatory. There is nothing in the application to show that the applicant could not apply for the amendment before the commencement of trial despite the exercise of due diligence and the essential requirement for seeking

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amendment is not satisfied. In any case, the amendment is highly belated and should not be allowed. Therefore, he prayed that the present application be dismissed.

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I have given considerable thought to the submissions and have gone through the records carefully. 7. The present suit was filed on 20.02.1999. The proviso to Order 6 Rule 17 was brought into force w.e.f. 01.07.2002. It was laid down by the Hon’ble Supreme Court in State Bank of Hyderabad vs. Town Municipal Council , (2007) 1 SCC 765 that the proviso to Order 6 Rule 17 will not apply to the pleadings filed before the enforcement of the amendment. 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 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;” 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 a case titled

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Sumesh Singh v. Phoolan Devi , (2009) 12 SCC 689 , 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 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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9. This Court also took a similar view in R ajeev

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Sood v. Devinder Sain Chopra, 2015 SCC OnLine HP 1584 and

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observed as under:-

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“6. At the outset, it may be observed that even the learned counsel for the respondents has fairly

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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 by 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 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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In view of these precedents, the submission

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made on behalf of the respondents that since the applicant/plaintiff has failed to mention that he could not apply for the amendment before the commencement of trial despite the exercise of due diligence hence, the amendment cannot be allowed is not acceptable.

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The judgment and decree passed by the learned Trial Court were reversed on the ground that the description of the path was not given in the plaint. The identity was uncertain and the executable decree could not

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be passed in the absence of the site plan or the tatima. The copy of the demarcation report, (Ex. DW-1/B) shows that the demarcation was conducted and tatima was attached to the report. Therefore, the finding recorded by the learned First Appellate Court that there was no proper identification of the path may not be correct, because such an identification was available in the report of the demarcation as well as tatima. However, it is necessary to incorporate the description of the path of the plaint to avoid any technical objection.

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It was submitted that the amendment is belated and should not be allowed. This submission is not acceptable. It was laid down by Hon’ble Supreme Court in Ganesh Prasad v. Rajeshwar Prasad, 2023 SCC OnLine SC 256 that the Court should be liberal in allowing the application for leave to amend the pleadings and every amendment should be allowed which is necessary for the adjudication of the dispute between the parties and will not cause loss to the other side, which cannot be compensated in terms of money. It was observed as under: -

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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)

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Acts; the proviso appended to 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

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Kalwar [(1990) 1 SCC 166] .)”

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34. In the case of P.A. Jayalakshmi v. H. Saradha reported in (2009) 14 SCC 525 , the above observations were reiterated by this Court and in the light of the same, this Court in para 9 held as under:

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“9. By reason of the Code of Civil Procedure (Amendment) Act, 1976, measures have been taken for early disposal of the suits. In furtherance of the aforementioned parliamentary object, further amendments were carried out in the years 1999 and 2002. With a view to put an end to the practice of filing applications for amendments of pleadings belatedly, a proviso was added to Order 6 Rule 17 which reads as under:

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“17. Amendment of pleadings.—The court may at any stage of the proceedings allow either party to alter or amend his pleading

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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 determining the real questions in controversy between the parties: 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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35. In B.K. Narayana Pillai 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

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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 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 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

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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 do 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 timebarred 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

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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,

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however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts that 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 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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This position was reiterated in Shivshankara v. H.P. Vedavyasa Char, 2023 SCC OnLine SC 358, wherein it was held as under:-

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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 163 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 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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In the present case, the amendment is necessary to specify the path and to enable the Court to pass an executable decree. The proposed amendment will not cause any loss to the other side, which cannot be compensated in terms of money, as the other side is only claiming that the amendment is belated for which it can also be compensated in terms of money. Therefore, the proposed amendment satisfies the essential requirements laid down by the Hon’ble Supreme Court.

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It was submitted that the proposed amendment would change the nature of the suit. This is not correct because the proposed amendment is being made only to clarify the description of the path, which is already a subject matter of the suit. Therefore, the submission that the proposed amendment will change the nature of the suit is not acceptable.

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Consequently, the present application is allowed subject to the payment of costs of ₹2,000/-. The amended plaint be taken on record. The written statement to the amended plaint, if any, be filed within four weeks.

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(Rakesh Kainthla) Judge

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12 June, 2024 (mamta/tabrez)

Dhani Ram v. Union of India

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Dhani Ram v. Union of India

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