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2024 DAILYLAW 2307 (CAL)

Vijaya Laxmi Devi v. Suresh Kumar Choubey

2024-10-04

Prasenjit Biswas

body2024
JUDGMENT : Prasenjit Biswas, J. 1.This revisional application is preferred at the behest of the petitioners challenging the impugned order No. 33 dated 26.04.2024 passed by the learned Court of Joint Civil Judge Senior Division at Port Blair, District of South Andaman in connection with Title Suit No. 130 of 2018 (renumbered as Title Suit No. 196 of 2019). 2. By passing the impugned order learned Trial Court rejected the application filed by the plaintiffs/petitioners (herein) under Order VI Rule 17 of Code of Civil Procedure with a prayer for amendment of the plaint. 3. Being aggrieved and dissatisfied with the said impugned order passed by the learned Trial Court the instant revisional application is filed by the plaintiffs/petitioners (herein). 4. The petitioners/plaintiffs instituted a suit with a prayer for partition in respect of the suit property. The defendant No. 2/opposite party No. 2 (herein) entered appearance in that suit and filed his written statement denying all the material allegations as stated in the plaint. It is submitted by the petitioners that several documents/records have been placed alongwith written statement but the copy of the Will dated 8th July, 2009 was not made part of the written statement, neither proper particulars and details have been furnished in their written statement enabling these Plaintiffs to meet their defense case. 5. Mr. Jayapal, learned counsel appearing on behalf of the petitioner submits that the trial of the suit has not yet been commenced. After engaging the newly advocate by the plaintiffs and upon perusal of pleadings it is found that formal amendment in the plaint is required under the law for effective adjudication of the suit. 6. Accordingly, plaintiffs/petitioners have filed an application under Order VI Rule 17 of CPC before the learned Trial Court with a prayer of amendment of the plaint. Defendants have filed their written objection against the said amendment. After hearing of both the parties the learned Trial Court rejected the application praying for amendment filed by the plaintiffs by passing the impugned order dated 26.04.2024 by holding that the plaintiffs could not raised the matter before commencement of Trial and this amendment application is not necessary for adjudication of the case. 7. Mr. After hearing of both the parties the learned Trial Court rejected the application praying for amendment filed by the plaintiffs by passing the impugned order dated 26.04.2024 by holding that the plaintiffs could not raised the matter before commencement of Trial and this amendment application is not necessary for adjudication of the case. 7. Mr. Jayapal, learned counsel further contended that the impugned order suffers from palpable and patent irregularity and by this proposed amendment the nature of the suit in no way would be changed as in the present frame of suit. More over only issues have been framed but the evidence taking process has not yet been started. So, it cannot be said that the trial has been commenced. 8. Despite service affected upon the respondents they do not venture to appear in this case and contest the revisional application filed by the petitioners/plaintiffs. 9. The short important question that arises for consideration in the present revision application is with regard to the power of the Court to allow an application for amendment under Order VI Rule 17 of C.P.C. The Scope of Order VI Rule 17 of C.P.C and the manner in which the Courts ought to consider applications for amendment is quite well settled by a long line of decisions by the Hon'ble Supreme Court. 10. The Apex Court in case of Baldev Singh and Others Vs. Manohar Singh and Another reported in (2006) 6 Supreme Court Cases 498 wherein it was held at paragraph 8 as under: “It is well settled by various decisions of this Court as well as the High Courts in India that courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung [(1920- 21) 48 IA 214 : AIR 1922 PC 249 ] in which the Privy Council observed: (IA pp. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung [(1920- 21) 48 IA 214 : AIR 1922 PC 249 ] in which the Privy Council observed: (IA pp. 216-17) All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.” 11. In Rajesh Kumar Aggarwal v. K.K. Modi, reported in (2006) 4 SCC 385 the Hon’ble Apex Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. In this case it is held at paragraphs 18 and 19 as under: 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. 19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. 19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. In my opinion, under such circumstances when specific pleadings are there in the plaint, the relief of partition and possession not claimed, can be claimed by the plaintiff/respondent No.1 by making amendment in the prayer clause and allowing the amendment does not change the nature of suit because the existing facts have not been disturbed and no new fact was inserted. The relief of possession is a consequential relief and as per the existing pleadings, the same should have been claimed, but not claimed under some misconception and if suit is allowed and decreed in favour of the plaintiff and possession is not claimed, the plaintiff would be required to file another suit claiming possession and as such, the basic object of amendment to avoid multiplicity of suit would have been defeated if application would have been rejected.” 12. Without discussing the law laid down by the Apex Court the amendment should be allowed liberally, unless there appears an apparent mischief. The inherent and dominant purpose of allowing an amendment is to minimize litigation even if there is any plea that the relief sought by way of amendment was directed by time as arguable in the circumstances of the case when the amendment is incorporated. Such a plea also cannot be thrown away summarily without affording an opportunity of being heard into the law on the point under the facts and circumstances of the particular case. 13. In my considered opinion, by allowing the amendment application by including the some facts in the plaint, it does not mean that the suit is decreed as prayed for. The plaintiff/ revision petitioner will have to establish his case before the trial court by adducing oral and documentary evidence in support of his case. While allowing the amendment application the merit of the suit is not going to be decided. The plaintiff/ revision petitioner will have to establish his case before the trial court by adducing oral and documentary evidence in support of his case. While allowing the amendment application the merit of the suit is not going to be decided. Further, after allowing amendment application, the defendants are entitled to file additional written statement by denying averments made by the plaintiff. By allowing the same multiplicity of proceeding could be avoided and the parties need not spend their time and money for litigation. By allowing the proposed amendment no prejudice will be caused to the respondent herein. 14. The proviso appended with the respective provision provides that the application for amendment shall not be allowed after commencement of trial unless the Court is satisfied that instead of due diligence party could not have raised the matter before commencement of trial, but in number of cases it is observed and held even by the Supreme Court that said proviso is not conclusive, mandatory and puts specific bar for allowing the application after commencement of trial whereas the Court has observed that it is directory and if the Court is satisfied that the amendment is necessary for proper adjudication of the case and also to resolve the dispute between the parties, the same can be allowed. 15. In this case it is specifically stated by the plaintiffs that several documents/records based on which right was sought to be claimed by the defendant No.2 has been placed along with the statement but the copy of the alleged Will dated 08 July, 2009 was not made part of their written statement. It is said by the plaintiffs/petitioners that no proper particulars and details have been furnished in their written statement to enable the plaintiffs to meet their defense case. Upon perusal of the pleadings and materials placed it was found by the plaintiffs that some formal amendment in the plaint is necessary for proper adjudication of this case and accordingly they filed the petition under Order VI Rule 17 of the Code of Civil Procedure with a prayer for amendment. 16. It should be kept in mind that the Trial Courts which are the Courts of first instance must adopt a balanced approach in dealing with the applications and there has to be well considered reasoning behind the decision in these aspects. 16. It should be kept in mind that the Trial Courts which are the Courts of first instance must adopt a balanced approach in dealing with the applications and there has to be well considered reasoning behind the decision in these aspects. It has to be pointed out that in cases where the amendment of the plaint is necessary and the same is not allowed, it could virtually defeat the very purpose of filing the suit itself. 17. In view of the foregoing reason, I am of the considered opinion that the proposed amendment application filed by the plaintiff is to be allowed. 18. In the result: (a) this Civil Revision Petition is allowed and order dated 26.04.2024 passed by the learned Trial Court is hereby set aside; (b) the trial court is directed to permit the revision petitioner to carry out the amendment and file amended plaint; (c) the defendant is permitted to file an additional written statement if any, within 30 days from the date of filing of the amended plaint. (d) thereafter, the trial court is directed to dispose of the suit preferably within a period of six months from the date of receipt of a copy of this order without giving unnecessary adjournments to either of the side. 19. There will be no order as to costs. 20. Accordingly, CO/32/2024 is hereby allowed. 21.Urgent photostat certified copy of this order be issued to the parties upon compliance of the usual formalities.