High Court dismissed a civil miscellaneous petition challenging the lower court's rejection of an application to amend plaint and introduce settlement documents at the appellate stage in a land title dispute, holding that the party failed to show due diligence.
Civil miscellaneous petition dismissed as devoid of merit.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No.168 of 2020
Versus
CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR
-----For the Petitioners : Mr. Mrinal Kanti Roy, Advocate For the State : Mr. Manav Poddar, A.C. to A.A.G.-I --------
03/26.02.2021 The present civil miscellaneous petition is taken up today through Video conferencing.
2. The present civil miscellaneous petition has been filed for setting aside the order dated 18th January, 2020 passed by the District & Additional Sessions Judge-IX, Palamau in Title Appeal No.13 of 2015 whereby the application filed by the petitioners at the appellate stage under Order VI rule 17 read with Section 151 of the Code of Civil Procedure (in short ‘CPC’) for amendment in the plaint and seeking permission to bring on record certain documents claiming that the same is relevant for adjudication of the suit.
3. Learned counsel for the petitioners submits that the plaintiffs/ petitioners filed Title Suit No.49 of 2008 before the court of Civil Judge (Senior Division)-IV, Palamau at Daltonganj for declaration of right, title and interest over Plot No.191, Khata No.4 measuring an area of 37 decimals, Plot No. 187, Khata No.50 measuring an area of 40 decimals and Plot No.188 Khata No.50 measuring an area of 2 decimals, situated in village Ramgarh (hereinafter to be refereed as the ‘said land’). The said title suit was dismissed vide judgment dated 24th February, 2015. Being aggrieved by the said judgment, the petitioners filed an appeal being Title Appeal No.13 of 2015 before the court of District & Additional Sessions Judge-IX, Palamau at Daltonganj. During pendency of the said appeal, the petitioners relied on two documents of settlement parwana dated 9th September, 1946 and 11th March, 1947 by which 3.39 acres of land and 2.64 acres of land of Khata No.4 of village Ramgarh were respectively settled in favour of Babu Randhir Singh through which the
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petitioners are claiming their right, title and interest over the said land. It is further submitted that the said two settlement documents are relevant for adjudicating the dispute and as such the petitioners filed an application under Order VI rule 17 of CPC read with Section 151 CPC before the appellate court. The defendants/respondents did not file any objection to the said application of the petitioners, however, the court below vide order dated 18th January, 2020 rejected the same. The learned court below failed to appreciate that the two documents of settlement parwana proposed to be introduced in the case were quite relevant for disposal of the case as also the said documents were clarificatory in nature and it was wrongly held that the petitioners wanted to bring on record some new facts. It is also submitted that amendment can be sought at any stage of the proceeding, if the person seeking amendment is able to show that despite due diligence he could not be able to produce it at an early stage. It is further submitted that the appellate court wrongly appreciated that the amendment so proposed was of such a nature which would cause injustice to the other side. It is also submitted that if the said documents is not allowed to be brought on record, the petitioners will suffer irreparable loss and injury.
3. Heard the learned counsel for the parties and perused the materials available on record.
4. Before coming to the merit of the case, it would be appropriate to go through the content of Order VI rule 17 as well as the judicial pronouncements dealing with the scope and extent of allowing any amendment application;
“17. Amendment of pleadings.—The court may at any stage of the proceedings allow either party to alter or amend his pleading 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.”
5. In the case of Vidyabai & Others v. Padmalatha & Another reported in (2009) 2 SCC 409 , the Hon’ble Supreme has Court held as under:-
“10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as
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under:
“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.”
It is couched in a mandatory form. The court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.”
6. It is a settled proposition of law that though the court has the power to allow an application for amendment at any stage of the suit which is necessary for the purpose of determining the real question in controversy between the parties, yet by way of “proviso” certain restriction has been put to the cases where amendment applications are filed after commencement of trial. Thus, the stages of the cases have been divided into two parts for dealing with the amendment application; one is before the commencement of trial wherein an application for amendment may be allowed to determine the real issue in controversy and the other is after the commencement of the trial where before allowing the amendment application the court has to satisfy itself that the party seeking amendment has explained that in spite of due diligence, he/she could not raise the matter before the commencement of trial. This requirement is to be mandatorily followed by the courts.
7. In the present case, the petitioners have neither pleaded nor averred any sufficient reason to meet the delay caused in making the amendment application. The court below after taking into consideration the nature of the amendment sought, held that the proposed amendment made by the appellants would introduce a new fact in the pleadings which was no way concerned with the real question in controversy and adding the same in the pleadings would cause injustice to the other side. Though, the claim of the petitioners is that the two documents of settlement parwana which they wanted to bring on record was not
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available with them, they have not averred as to those documents were under whose possession and why they could not obtain the same before the commencement of the trial so as to show their due diligence which is a primary requirement of seeking amendment at the belated stage. The trial court also observed that the settlement paper dated 9th September, 1946 (marked as Exhibit-1) though also indicated regarding settlement of 3.39 acres of land of Khata no.4 of village Ramgarh, however, the pleading of the plaintiffs did not whisper even a single word about the settlement document dated 11th March, 1947 and the oral evidence of plaintiffs was also silent on the said fact and thus the same was found to a complete new fact which the plaintiff wanted to adduce at the appellate stage.
8. In view of the aforesaid factual and legal position, I do not find any infirmity in the order dated 18th January, 2020 passed by the District & Additional Sessions Judge-IX, Palamau in Title Appeal No.13 of 2015.
9. The present civil miscellaneous petition being devoid of merit is, accordingly, dismissed.
(Rajesh Shankar, J.)
Rohit
3 issues framed by the court
Whether the impugned order rejecting the application for amendment in the plaint at the appellate stage was legally infirm.
Whether the petitioners satisfied the requirement of due diligence under the proviso to Order VI Rule 17 CPC for bringing settlement documents on record after the commencement of the trial.
Whether the proposed amendment sought to introduce a new fact or merely clarify an existing one.
Colour shows how this judgement treated each authority
Vidyabai & Others v. Padmalatha & AnotherExplained¶26
(2009) 2 SCC 409 · Who else cites this
1 provisions across 1 enactments
Janakraj Kuar
Abhimanyu Singh
The State of Jharkhand
Deputy Commissioner, Palamau
Commissioner, Palamau Division
Additional Collector, Palamau
RAJESH SHANKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
