(B) CODE OF CIVIL PROCEDURE, 1908 - (AMENDMENT ACT) OF 2002 - SECTION 16(2)(b) - ORDER 6 RULE 17 - AMENDMENT OF PLEADINGS - Whether proposed amendment is permissible after the amendment to the Code - HELD - A reading of Section 16(2)(b) would make it abundantly clear that some of the provisions are omitted under order 6 and some of the provisions are inserted or substituted by amended Code and shall not apply in respect of any pleadings filed before the commencement of the amended provision. Therefore the proviso cannot be an impediment or bar in allowing the amendment application if it is otherwise on merits deserves to be allowed.
ORDER Ajit J. Gunjal, J.
1. This petition is by the defendant No. 1 (c) in O.S. No. 10298/ 91 on the file of the 28th Addl. City Civil Judge, Bangalore. The said suit was instituted by respondents 1 to 8 for declaration that they are the absolute joint owners of the suit schedule property being the legal heirs of Venkatesh alias Venkatesh Murthy and also consequential relief of injunction restraining the defendants or their agents, servants from interfering with the peaceful possession and grant such other reliefs as deemed fit by the Court. The suit property is Sy. No. 128 of Hallada Zamini, Horamavu village, K.R. Puram Hobli, Bangalore South Taluk. The pleadings of the respondents can be summarised as follows:
2. It is the case of the plaintiffs-respondents that respondents 1 and 2 are the parents of one Venkatesh and plaintiffs to 8 as brothers and sisters of said Venkatesh. it is their case that the said Venkatesh was born in 1954. When the said Venkatesh was 7 years old, respondent No. 1 purchased the property Sy. No. 128 in his name which is the subject matter of the present proceedings. They would further contend that right from the time of birth the said Venkatesh was mentally incapacitated and unsound. He was under constant treatment for the said mental disorder and the plaintiffs had to take care of the said Venkatesh since he was incapable of comprehending things and look after himself. Due to the said infirmity, he had a very poor growth physically. In the circumstances he had to be taken care of by the others. It is their further case that some time in the year 1975 the said Venkatesh disappeared from the house and notwithstanding serious efforts made by the plaintiffs, he could not be traced. Since he was not traced it was presumed that he was dead and he has not returned ever since the date of disappearance. Suffice it to say that the plaintiffs claim certain rights in respect of the suit property through this Venkatesh.
3. The defendants have entered appearance and contested the proceedings, inter alia, contending that the suit itself is not maintainable and the plaintiffs are not entitled for the relief which they have sought.
The matter went to the trial. When the matter was set down for evidence of the defendants, an application came to be filed. The said application was under Order 6 Rule 17 of CPC seeking amendment of the pleadings so as to incorporate certain additional pleadings and also certain corrections of the survey number. The said application was seriously opposed by the defendants, inter alia, contending that the suit having been instituted in the year 1991, it was not open for the plaintiffs at this point of time more so when the matter is set down for trial that too for the evidence of the defendants to make such an application. The application which is filed at a belated stage is liable to be rejected. Another contention raised before the learned Trial Judge was that the Code Civil Procedure having come into force the application is not maintainable after the matter is set down for trial. The Learned Trial Judge however taking into consideration the material on record as well as the proposed amendment was of the opinion that the said application is to be accepted and the proposed amendment is to be permitted. The impugned order passed by the Learned Trial Judge allowing the said application for amendment is to be found at Annexure-A.
4. Mr. G V. Shantharaju, Learned Senior Counsel, appearing for the defendant has raised two fold contentions-one is, reiterting that the Code of Civil Procedure having been amended and after the amendment any application under Order 6 Rule 17 for amending the pleadings is not permissible in view of the proviso. He would further submit that by the said amendment new plea is taken. He would also further submit that after the plaintiffs' evidence was over and when the matter is set down for the defendants' evidence, the present application is filed. He would further reiterate that the said application is filed only to harass the defendants and it lacks bonafides.
5. Mr. GS. Vishweswara, Learned Senior Counsel, appearing for the plaintiffs would support the order passed by the Learned Trial Judge. He would stress that the suit was instituted in the year 1991 and the pleadings were completed only in the year 1999. The first defendant filed his written statement on 28.10.1999 the second defendant filed his written statement on 28-10-1996 and the third defendant filed the written statement on 10.3.2000. Thereafter the plaintiff was examined in the year 1999 to be precise on 3.1.1999. He was cross-examined till 2004 and it was completed on 9.1.2004. In the circumstances he submits that the delay, if any, cannot be attributed to the plaintiffs in bringing about this application for amendment. In so far as proposed amendment itself is concerned, he would submit that the proposed amendment is only to amplify the pleadings. He would further submit that by the said proposed amendment any right which is stated to have been accrued to the defendants is not taken away and the claim made under the proposed amendment is not barred by statute. In so far as maintainability of the application is concerned, he submits that amendment to the Code by itself will not be an embargo on the courts in entertaining the said application. Consequently he submits that the impugned order does not call for interference at the hands of this Court under Article 227 of the Constitution of India.
6. The only question which would fall for consideration in this petition would be whether the Learned Trial Judge was justified in allowing the said application for amendment under Order 6 Rule 17 of CPC?
7. Apparently this is a case of pot calling the kettle black. The defendants cannot make a grievance that the application for amendment is filed after a lapse of nearly 12 years. It is to be noticed that the second defendant has entered appearance only in the year 1996 and thereafter the first defendant in the year 1999 and the third defendant in the year 2000. Thereafter the plaintiff was croos-examined for a period close to five years which was concluded only on 9.1.2004, which would necessarily mean that the proceedings are still at the infant stage, in as much as, still at the stage of recording evidence. When this is the situation, the defendants cannot make a grievance that the application filed is highly belated. Even otherwise it is to be noticed that the purpose of amending the pleadings is always to minimise future litigation and also to subserve the cause of justice. If one were to look at the proposed amendment, it would clearly disclose that they are clarificatory in nature. The proposed amendment are in the following nature:
"i) after 'Sy. No. 128' to add new 'Sy. No. 128/2' and in the same para the extend '1 acre 20 guntas' be corrected and read as '1 acre 30 guntas including kharab of one gunta.
ii) In para 6, they want to delete the word "not";
iii) In para 7, line 4, 'defendants 2 to 4' be corrected and read as 'defendants 2 and 3;
iv) In para 7, they want to substitute the word 'plaintiff be deleted and in its place 'defendants' be added.
v) In the schedule to the plaint, item No. 1, "Sy. No. 128" be corrected and read as "old Sy. No. 128 new Sy. No. 128/2 measuring 1 ac 211211re 30 guntas including kharab of 1 gunta".
iv) The western boundary is to be corrected as "land belonging to Ajaramara Subbanna instead of land belonging to B.N. Govinda Reddy and Kamalanaba Reddy; and the other amendments are only in respect of certain small clerical errors which have crept in while describing the plaint schedule property.
By the proposed amendment the plaintiffs want to plead that plaintiffs 1 and 2 had purchased the plaint scheduled property in the name of their son Venkatesh who has since been missing. In fact, a perusal of the amendment para 3(3) would disclose that it is nothing but an elaboration and amplification of what has been stated in para 5 of the original plaint. A perusal of the proposed pleading does not disclose any new facts are being pleaded or admission which is stated to have been made in favour of the defendant is being taken away. As stated earlier, it is nothing but an amplification of the earlier pleadings. When that is the case, there is no reason as to why the application for amendement is to be disallowed. The law on the question of amendment of the pleadings are legion. Time and again the Apex Court as well as this Court have consistently held that any amendment of the pleadings is to be liberally construed as to minimise the litigation. The Apex Court in the case of Fritiz T.M. Clement and Anr. v. Sidhakaran Nadar and Anr. it is stated that the amendment of the pleadings are to be liberally construed. The Apex Court in the said decision has clearly stated that:
...such amendment would place defendant in a better position to defend than prejudicing him.
In the case of Pankaja and Anr. v. Yellappa (Dead) By L.Rs. once again the scope of Order 6 Rule 17 fell for consideration. The Apex Court has in no uncertain terms stated that:
So far as the Court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the Court to allow applications in spite of the delay and laches in moving such amendment application.
...where the relief sought to be added by amendment is allegedly barred by limitation, there is no absolute rule that amendments in such a case should not be allowed; Court's discretion in that regard depends on the facts and circumstances of the case and has to be exercised on a judicious evaluation thereof.
In the said decision it is further observed thus:
There is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. Since the jurisdiction to allow or not allow an amendment is discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.
In the said decision, the Apex Court has quoted with approval the case of L.J. Leach and Co., Ltd., v. Jardine Skinner and Co. which reads thus:
It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice.
In another decision reported in Ragu Thilak D. John v. S. Rayappan and Ors. (2001) 2 SCC 472 the Apex Court has held as follows:
After referring to the judgments in Charan Das v. Amir Khan, L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., Ganga Bai v. Vijay Kumar, Ganesh Trading Co. v. Moji Ram and various other authorities, this Court in B.K. Narayana Pillai v. Parameswaran Pillai held (SCC p. 715, para 3).
3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Court and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances, but it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compenstated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation.
8. A reading of the said decision would clearly indicate that any amendment which is sought will have to be liberally construed. A time barred claim could also be permitted if basis of the claim is already in the pleadings. So also is the decision of the Apex Court in the case of A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation . The aforesaid decisions on the question of amendment of pleadings under Order 6 Rule 17 would clearly indicate that the Courts should be have a liberal approach in allowing the application for amendment. But however the said liberal approach is being curtailed to some extent but not taken away by the amendment to the Code of Civil Procedure which is brought about by the Amendment Act, 2002 wherein a proviso has been added to the original provision of Order 6 Rule 17 wherein it is stated that unless compelling reasons are shown as to why the proposed amendment could not be made before the commencement of the trial generally the application for amendment will have to be considered within the ambit of proviso. The Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India has stated that the amendment to the pleadings after the amendment of the Code will have to be viewed keeping in mind the proviso to Order 6 Rule 17. But however there is no blanket ban refusing the amendment after the trial has commenced. If the cause shown is acceptable, reasonable and if the parties who have moved the Court for amendment had shown that in spite of due diligence it was not within their reach to raise the matter which he is now raising before the commencement of trial, the Court should be liberal in allowing the amendment to meet the ends of justice, to decide the controversy in question, to avoid multiplicity of proceedings and driving the parties to commence subsequent litigation.
9. It takes us to the next question whether the proposed amendment is permissible after the amendment to the Code. Apparently the Code of Civil Procedure (Amendment) Act, 2002 came into force on 1.7.2002. Section 16 of the said amendment would deal with repeals and savings. Section 16(2)(b) would read as under:
(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 (46 of 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.
10. A reading of the said provision would clearly show that the said amendment has come into force from 1.7.2002. In view of the aforesaid amendment having come into force, no amendment of the pleadings could be allowed after commencement of the trial unless the court comes to the conclusion that in spite of due diligence the plaintiff could not raise a pleading before commencement of the trial. But however this would be made applicable in a case where proceedings are instituted after 1.7.2002. A reading of Section 16(2)(b) would make it abundantly clear that some of the provisions are omitted under Order 6 and some of the provisions are inserted or substituted by amended Code and shall not apply in respect of any pleadings filed before the commencement of the amended provision. In the case on hand it is to be noticed that the suit is instituted in 1991 i.e., before the amendment was introduced under Act 22 of 2002. In this view of the matter, I am of the considered view that the proviso cannot be an impediment or bar in allowing the amendment application if it is otherwise on merits deserves to be allowed. Since all the contentions urged by the defendants fail, I am of the considered view that the impugned order passed by the Learned Trial Judge does not call for interference.
Petition stands rejected. Since the suit is of the year 1991, and the matter is set down for evidence, it is desirable that the parties to the lis should know at the earliest where they stand in legal proceedings. The Learned Trial Judge shall dispose of the suit within a period of six months from the date of receipt of the copy of the order.
Petition disposed of accordingly.