Writ petition challenging the trial court's rejection of a belated amendment petition under Order VI Rule 17 CPC. The Court found no ground for interference as the amendment was filed only after evidence was adduced and lacked justification for the years-long delay.
Writ petition failed and was dismissed.
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.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.245 of 2019
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Rajesh Prasad Singh, aged about 50 years, son of Late Sukhdev Prasad Singh, resident of Plot no.1, Cooperative colony, P.O. and P.S. Bokaro Steel City, District- Bokaro.
…… Petitioner/Defendant no.2
Versus
Both sons of Rajesh Prasad Singh
Respondent no.2 to 4 are residents of Plot no.1, Cooperative Colony,
P.O. and P.S. Bokaro Steel City, District Bokaro.
…… Respondents/Defendants
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
For the Petitioner : Mr. Lal Chandrahas Nath Shahedeo, Advocate For the Respondents : None.
05 / Dated 13th June, 2019
1. This writ petition is filed under Article 227 of the Constitution of India whereby and whereunder the order dated 04.12.2018 passed in Title Suit No.40 of 2003 by Civil Judge, Senior Division-I, Bokaro is under challenge whereby and whereunder a petition dated 09.10.2018 filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure seeking therein amendment to be incorporated at Paragraphs 24 and 25 of the written statement has been rejected.
2. It is the case of the petitioner that a suit for specific performance of the agreement dated 11.06.2000 and 06.06.2003 for transfer of his lease hold interest and to execute register deed of transfer of lease hold interest in favour of the plaintiff being Title Suit No.40
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of 2003 has been filed.
3. The plaintiff and the wife of the original defendant namely, Sukhdeo Prasad Singh had been carrying the business of contract work under the deed of partnership and out of the profit of the said contract a plot being C/31, City Center, Sector 4, P.O. and P.S. Bokaro Steel City, District Bokaro was purchased by the plaintiff and the defendant and there was an agreement between the partners of the said firm that the plaintiff would retire from the said partnership firm on the condition that the defendant would transfer the aforesaid property to the plaintiff by virtue of memo of understanding dated 11.06.2000.
4. The petitioner/defendant has put his appearance in the aforesaid suit and filed written statement on 21.03.2005 denying therein at paragraph 24 of the written statement that the defendant has not executed memo of understanding on 06.06.2003, after filing of the written statement the trial has commenced and at the stage of defendant evidence the petitioner has filed a petition under Order VI Rule 17 r/w Section 151 of C.P.C. on 09.10.2018 seeking therein the following amendment:-
“Proposed amendment
In para No. 24, in third line, after the work on 06-06-2003 following may kindly be added:
“It is most respectfully submitted that defendant Sukhdeo Prasad Singh was out of station on 06-06-2003. He was at Singhrauli for some personal work and has left his hotal namely Hotel Gangotri on 06-06-2003 at about 6.30 a.m. for boarding the Train namely Shaktipunj Express Trai No. 1447. The schedule for the departure of the said train was at 8.30 a.m. and reaching time of the said train at Dhanbad at about 1.30 a.m. on 07-06-2003. It is further submitted that Rajesh Prasad Singh, Son of Sukhdeo Prasad Singh has gone along with his own vehicle for receiving his father from Dhanbad and has come back at Bokaro at 5 a.m. in the morning.”
In Para 25 after the last line of the Para 25 following may be added
“It is most respectfully submitted that in letter dated 04-08-2003 it is specifically mentioned that You will appreciate that you are the tenant of said building and you had/have requested me to
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sell/transfer lease hold interest in your favour and you are ready to pay the consideration amount as per market rate. But you have neither evaluated the value of the said property nor paid the amount. Hence, your statement in Para-3 of your letter become null and void. Now, I am not interested to sell the said property.””
5. The plaintiff has filed rejoinder on 09.10.2018 denying the averment made in the amendment petition by stating inter alia therein that the plaintiff witness No.4 namely, B.K. John was examined on 10.08.2018 who has proved memo of understanding dated 06.06.2003, was marked as Exhibit-10, 10/1, 10/2 and 10/3 respectively without any objections and after recording of the evidence, the petition has been filed on 09.10.2018 seeking leave of the Court to allow the petitioner to insert certain facts at paragraphs 24 and 25 to the effect that on 06.06.2003, the defendant namely, Sukhdeo Prasad Singh (now dead) was out of station, he was at Singrauli for some personal work and has left the hotel namely, Hotel Gangotri on 06.06.2003 at about 6:30 a.m. for boarding the train namely Shaktipunj Express Train No.1447 and thereafter he has reached Dhanbad at about 1:30 a.m. on 07.06.2003.
6. The contention has been raised by the plaintiff that it is only after the memo of understanding dated 06.06.2003 has been proved, the proposed amendment petition has been filed only to cover the deposition which has been led by the plaintiff witness No.1 and therefore, the same is liable to be rejected.
7. The trial Court after appreciating the rival submissions of the parties and looking to the stage as also the lack of reasons leading the petitioner to file the amendment petition after lapse of about 15 years from the date of aforesaid journey and after 13 years from the date of filing of the written statement, has rejected the petitioner, which is impugned in this writ petition invoking the jurisdiction conferred under Article 227 of the Constitution of India.
8. The contention of the learned counsel for the petitioner is that if the aforesaid amendment would be allowed, the defence which has been taken by the petitioner in the written statement will have got
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no adverse effect upon the plaintiff since the specific denial about the execution of the memo of understanding dated 06.06.2003 has been made in the written statement as would be evident from paragraph 24 of the written statement.
9. His further submission is that the petition under Order VI Rule 17 can be allowed at any stage of suit if it is required for proper adjudication of the suit, therefore, the trial Court ought to have considered and appreciated this aspect of the matter, having not done so, a serious infirmity has been committed in the aforesaid order, therefore, the same is not sustainable in the eye of law.
10. It is not in dispute that the petition under Order VI Rule 17 can be allowed at any stage of the suit but subject to certain conditions i.e., if once the trial has been commenced, the applicant who is making an application for leave of the Court for seeking amendment either in the plaint or in the written statement is supposed to show the due diligence on his part as to what prevented him not to file such petition and for what reason if there is any delay.
11. It is also equally settled that amendment is to be allowed if nature of the suit is not to be changed or if barred by the principle of limitation as because if the amendment is being allowed it goes to the date of filing of the suit or written statement, as the case may be and if the original suit is barred under the provision of limitation act, the same cannot be allowed by way of amendment, reference may be made to the judgment rendered by Hon’ble Apex Court in the cases of Chander Kanta Bansal vs. Rajinder Singh Anand , reported in (2008) 5 SCC 117 pr.15 and Rajkumar Gurawra (Dead) through LRS. Vs. S.K. Sarwagi and Company Private Limited and Anr., reported in (2008) 14 SCC 364 pr.18, which reads hereunder as:-
“15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is
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established that in spite of “due diligence” the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application.
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 in 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 6 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.”
12. This Court keeping the said fact into consideration and going across the factual aspect has found that in the instant case which is for specific performance of the agreement dated 11.06.2000 and memo of understanding dated 06.06.2003.
13. The plaintiff is claiming that by virtue of the agreement dated 11.06.2000 and memo of understanding dated 06.06.2003, the landed property in question was to be transferred in favour of the defendant but having not done so, it led the petitioner to invoke the jurisdiction of the competent court.
14. The signing of the agreement dated 11.06.2000 is not in dispute, however, the memo of understanding dated 06.06.2003 has been disputed in the written statement by making specific statement therein that no memo of understanding was signed on 06.06.2003 by one Sukhdeo Prasad Singh, thereafter the trial has proceeded and when the plaintiff witness No.1 has been examined who has proved the memo of understanding dated 06.06.2003 on 10.08.2018 it is only thereafter the petition was filed on 09.10.2018 seeking the aforesaid amendment at paragraphs 24 and 25.
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15. As submitted by the petitioner’s counsel that the amendment sought for in paragraphs 24 & 25 are said to be in continuation to the statement made wherein it has been stated that no memo of understanding was signed on 06.06.2003 and in order to corroborate the said stand the averment has been made by way of proposed amendment that on 06.06.2003 the signatory of the memo of understanding namely Late Sukhdeo Prasad Singh was not present at Dhanbad rather he was at Singrauli and he has only returned back from Singrauli by a train namely Shaktipunj Express on 06.06.2003 and reached to Dhanbad on 07.06.2003 at about 1:30 a.m.
16. The question herein is that the petitioner has taken specific stand that the memo of understanding has not been signed as the said document having been proved by the plaintiff witness No.1 and it is only then the proposed amendment has been made to insert certain facts at paragraph 24 to the written statement, the trial Court being not satisfied with the stand taken by the petitioner in the amendment petition has rejected it on the ground that the aforesaid proposed amendment of 06.06.2003 is sought to be inserted by way of amendment petition filed on 09.10.2018 i.e., after lapse of about more than 15 years that too without assigning any reason of delay.
17. It is not in dispute as has been stated hereinabove that the amendment can be allowed at any stage of the trial but the question of due diligence is necessarily to be seen by the Court of law otherwise the power under Order VI Rule 17 would be mis-utilized by the parties only to linger the legal process even otherwise also it is incumbent upon the parties, who is invoking the court of law for any relief, is supposed to approach to the Court of law within reasonable time and if parties are approaching not within the reasonable time, it is upon him to satisfy the court of law that what prevented or what led him to approach the court of law after such a delay but it transpires from the record that no such reason has been assigned in the petition filed under Order VI Rule 17 of the C.P.C.
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Secondly, the defendant namely, Late Sukhdeo Prasad Singh was out of station that is quite different to that of the statement made in the written statement since at paragraph 24 the stand has been taken that no memo of understanding was signed on 06.06.2003, therefore, it is simple denial of the execution of the said MoU on 06.06.2003, now by this proposed amendment, the said submission is trying to be improved by showing the reason that the same could not have been signed since the said defendant was not available at the place where the MoU was signed, the question would be that when it was within the knowledge of the defendant then what prevented him to insert this submission in the written statement.
18. Further herein a peculiar situation arise which is the death of the defendant on whose signature the written statement has been filed and now the legal heirs are in picture.
The question is that if the said amendment would be allowed then how the aforesaid document will be proved or disproved by the parties in course of the trial.
Further doubt which is being created in the mind of the court that after the plaintiff witness No.1 has exhibited the said document only then amendment petition has been filed which is nothing but to take advantage of the death of the original defendant since the petition has been filed to deny the MoU dated 06.06.2003 said to have not signed by late Sukhdeo Prasad Singh, the same creates doubt about bona fide approach of the defendant, otherwise if that would be the fact that late Sukhdeo Prasad Singh was not present at Dhanbad it should have been inserted by him only in course of his lifetime since as has been told by the learned counsel for the petitioner that the written statement has been filed in the year 2005 while the original defendant had died sometime in the year 2008, the legal heirs have been substituted vide order dated 21.07.2008.
19. This Court after appreciating the entire aspect of the matter and
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on going across the impugned order has found that the trial court has appreciated each and every aspect of the matter and thereafter has found that the amendment sought for under the provision of Order VI Rule 17 is not worth to be considered therefore, this Court is also of the view that it is not a fit case where any interference is required in the finding recorded by the trial Court in exercise of power conferred to this Court under Article 227 of the Constitution of India.
20. In view thereof and for the reasons stated hereinabove, this writ petition fails and is dismissed.
Saurabh
(Sujit Narayan Prasad, J.)
2 issues framed by the court
Whether the trial court Erred in refusing a petition for amendment to the written statement filed after approximately 15 years from the date of the alleged event.
Whether the lack of due diligence for the delay and the motive behind the amendment warrant interference under Article 227.
Colour shows how this judgement treated each authority
Chander Kanta Bansal vs. Rajinder Singh AnandReferred¶11
(2008) 5 SCC 117 · Who else cites this
Rajkumar Gurawra (Dead) through LRS. Vs. S.K. Sarwagi and Company Private Limited and Anr.Referred¶11
(2008) 14 SCC 364 · Who else cites this
2 provisions across 2 enactments
Rajesh Prasad Singh
Surendra Kumar Singh
Sujit Narayan Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
