Present:- Mr. S.C. Chhabra Advocate Vs. Pritam Singh and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1059192
CourtPunjab and Haryana High Court
Decided OnMar-13-2013
AppellantPresent:- Mr. S.C. Chhabra Advocate
RespondentPritam Singh and Another
Excerpt:
c.r.no.4707 of 2007 (o&m) 1 in the high court of punjab and haryana at chandigarh. c.r.no.4707 of 2007 (o&m) date of decision:13. 03.2013 smt. pushpa rani and another ....petitioners versus pritam singh and another ....respondents before :- hon'ble mrs.justice daya chaudhary present:- mr.s.c.chhabra, advocate for the petitioners.mr.t.p.s.tung, advocate for the respondents. ***** daya chaudhary, j. the present revision petition has been filed under article 227 of the constitution of india for setting aside the order dated 02.08.2007 passed by the civil judge (senior division).ferozepur, vide which, the respondent-defendants have been allowed to amend their written statement. briefly, the facts of the case are that the petitioner-plaintiffs filed a suit for possession and mesne profits on 15.05.2003 against the respondent-defendants. the respondents filed their written statement on 10.11.2003 and thereafter, the issues were framed on 28.04.2004. an application for amendment of written statement was moved which was allowed by the trial court vide order dated 02.08.2007. the present revision petition has been filed by the petitioners to challenge the impugned order passed in allowing the application for amendment of written statement. notice of motion in this case was issued on 14.09.2007 and proceedings before the trial court were also stayed. thereafter, the c.r.no.4707 of 2007 (o&m) 2 revision petition was admitted on 10.07.2009. learned counsel for the petitioners submits that the impugned order passed by the trial court is totally contrary to the law and the provisions contained under order 6 rule 17 of the code of civil procedure. the amendment has been allowed when the suit is near completion of the trial as evidence of the petitioners has been completed in the year 2006. learned counsel also submits that the respondents have taken up altogether a different plea by the proposed amendment of para no.1 which was available to them even at the time of filing their written statement at the initial stage. learned counsel for the petitioners also relies upon the judgments of hon'ble the apex court in the cases ajendraprasadji n. pande and another vs swami keshavprakeshdasji n. and others 2007 (1) rcr (civl) 481, vidyabai and others vs padmalatha and another 2009(1) r.c.r.(civil) 763 and ajit singh vs jaswninder kaur 2009(1) rcr (civil) 152. learned counsel for the respondents submits that the trial court has passed a well reasoned speaking order by holding that the petitioners are not going to be prejudiced in any manner as the nature of the suit is not going to be changed. i have heard the arguments of learned counsel for the parties and have also perused the impugned order as well as other documents on the file. while allowing the application filed by the respondent- defendants for amendment of written statement, it has been mentioned by the trial court that amendment in the written statement is necessary for the controvers.involved in the suit and to determine the real issue of controvers.between the parties. the finding recorded by the trial court is c.r.no.4707 of 2007 (o&m) 3 reproduced as under :- “ 7. i have considered these contentions. the plaintiff has mentioned in para no.2 of the plaint that the plaintiff is the owner of the suit land. it was duty of the plaintiff to elaborate the facts regarding acquisition of the suit land. the defendant may be ignorant regarding the mode of acquisition of the suit land by the plaintiff. if the plaintiff had given details regarding the acquisition of the suit land, then the defendant might have raised all these pleas of defence in the written statement. the counsel for defendant argued that it took a long time for defendant to unearth the fraud committed by the plaintiff by procuring the sale deed on behalf of dead person. he argued that the fraud is concealed and any party can come to the court regarding fraud whenever the same is discovered. as per order 6 rule 17 cpc, the amendment of the pleadings can be allowed if such amendment is necessary for the purpose of determination of real points of controvers.between the parties. by way of proposed amendment, it can be known by the court as to whether the sale deed executed on behalf of the dead person by his attorney is genuine or not. therefore, this point goes to the root of the case. therefore, the said amendment is essential in order to adjudicate the real points of controvers.between the parties. the counsel for plaintiff argued that the plaintiff had filed a suit for share of produce against defendant which was decreed by the revenue court on 28.02.1997. the copy of that judgment passed by sdp cum collector is placed on file. but this judgment is not passed by the civil court. it is not relevant at this stage for deciding this application.”8. so far as the delay is concerned, the defendants are yet to conclude their evidence. the case was pending for evidence of the defendants c.r.no.4707 of 2007 (o&m) 4 on 14.05.2007 when this application was filed. the plaintiff can be compensated by way of costs regarding delay.” although there is no dispute with regard to proposition of law that the amendment cannot be denied on the ground of delay in case it does not cause prejudice to the other party. order 6 rule 17 of the cpc stands amended by way of proviso to order 6 rule 17 of the cpc, wherein, it has been 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 commencement of the trial. the amendment sought cannot be said to be one which was known to the petitioners before commencing of the trial. otherwise also, there is no material change in the written statement. it is not absolute proposition of law that the amendment cannot be allowed after the commencement of trial. this court in the case of tejinder singh vs surjit rai and another 2012(5) rcr (civil) 566 has held as under :- it is not absolute proposition of law that the amendment cannot be allowed even after the trial commences. this court in case tejinder singh versus surjit rai and another,2011(3) plr 318.has held as under:- “7. the rule is divided into two parts. firs.part speaks for a making amendment liberally at any stage of the proceedings before the trial commenced. the object of the rule was not to dis-allow the relief to the plaintiff merely for a technical defect, error or omission made by him in his pleadings and if he had left anything in the plaint or it unnecessarily took such plea, then he could apply for adding or deleting such pleas by way of amendment. however, vide civil procedure code, amendment of 1999, with a view to avoid the delay in adjudication of the issues, the legislature thought of deleting the provision, however, on account of raising hue and cry by the legal fraternity at large, this rule with c.r.no.4707 of 2007 (o&m) 5 amended shape was brought on the statute book w.e.f.1.7.2002 by the act no.22 of 2002. this amended provision consists of two parts. the firs.part has been discussed above, whereas, in the second part, no absolute bar has been created by the statute regarding amendment of the pleadings yet, it envisaged that no application for amendment shall be allowed after the commencement of the trial. however, if the parties to the proceedings are able to satisfy the court that in spite of the due diligence, the party could not raise issue before the commencement of the trial and the court on having been satisfied about the explanation submitted before it, could allow the amendment even after the commencement of the trial. the law of amendment has been very liberal since the very beginning. it envisages that at the time of deciding the application for amendment, the approach of the court should be liberal to ensure that substantial justice is not denied. the procedural law is handmaid of the administration of justice, meant to advance its cause, than to frustrate the same. when the substantial justice and the procedural law come in confrontation with each other, then the former would prevail over the later. it was observed in case jai jai ram manohar lal v. national building material supply, air 196.s.c.1267 as under:- “rules of procedure are intended to be a handmaid to the administration of justice. a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of the procedure. the court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala fide, or that by this blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. however, negligent or careless may have been the firs.omission, and however, late the proposed amendment, the amendment may, be allowed if it can be made without injustice to the other side.”.”8. relying on this judgment, the apex court in m/s ganesh trading co.v.moji ram, air 197.s.c.484 observed as under:- “procedural law is intended to facilitate and not to obstruct the cours.of substantive justice. provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent deviations from the cours.which litigation of particular c.r.no.4707 of 2007 (o&m) 6 causes of action must take.”.”9. following the dictum of supreme court, this court, in case sardar hari bachan singh v. maj. harbhajan singh (1975) 77 p.l.r.21, observed as under:- “it is well settled law that, however, negligent or careless may have been the firs.omission and, however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. there is no injustice if the other side can be compensated by way of costs. a plaintiff may add as new cause of action and the defendant may add a new defence. even a new case may be allowed to be introduced. the court has to take into consideration even subsequent events. a further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided. where therefore, the plaintiff sought the permission merely to add a prayer for possession which did not alter the cause of action or change the essential nature of the suit, and the erect of the refusal of the amendment would have been to derive the plaintiff to fresh suit, the amendment should be allowed.”.”10. no doubt, with a view to curtail the flow of applications after the trial commences, the law left it to the satisfaction of the courts regarding due diligence of the parties and the law of amendment envisages that if it is established that despite due diligence, the party could not have raised that matter before commencement of the trial depending upon the circumstances, the court is free to order such application.” in view of the facts and the settled proposition of law, there is no merit in the contention raised by learned counsel for the petitioners and the present petition, being devoid of any merit, is hereby dismissed. however, since the suit has been delayed as there was interim order staying the proceedings, the trial court is directed to proceed with the trial and to conclude the same preferably within a period of one year. (daya chaudhary) 13.03.2013 judge gurpreet
Judgment:

C.R.No.4707 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.R.No.4707 of 2007 (O&M) Date of Decision:

13. 03.2013 Smt.

Pushpa Rani and another ....Petitioners Versus Pritam Singh and another ....Respondents BEFORE :- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- Mr.S.C.Chhabra, Advocate for the petitioneRs.Mr.T.P.S.Tung, Advocate for the respondents.

***** DAYA CHAUDHARY, J.

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the Order dated 02.08.2007 passed by the Civil Judge (Senior Division).Ferozepur, vide which, the respondent-defendants have been allowed to amend their written statement.

Briefly, the facts of the case are that the petitioner-plaintiffs filed a suit for possession and mesne profits on 15.05.2003 against the respondent-defendants.

The respondents filed their written statement on 10.11.2003 and thereafter, the issues were framed on 28.04.2004.

An application for amendment of written statement was moved which was allowed by the trial Court vide Order dated 02.08.2007.

The present revision petition has been filed by the petitioners to challenge the impugned Order passed in allowing the application for amendment of written statement.

Notice of motion in this case was issued on 14.09.2007 and proceedings before the trial Court were also stayed.

Thereafter, the C.R.No.4707 of 2007 (O&M) 2 revision petition was admitted on 10.07.2009.

Learned counsel for the petitioners submits that the impugned order passed by the trial Court is totally contrary to the law and the provisions contained under Order 6 Rule 17 of the Code of Civil Procedure.

The amendment has been allowed when the suit is near completion of the trial as evidence of the petitioners has been completed in the year 2006.

Learned counsel also submits that the respondents have taken up altogether a different plea by the proposed amendment of para No.1 which was available to them even at the time of filing their written statement at the initial stage.

Learned counsel for the petitioners also relies upon the judgments of Hon'ble the Apex Court in the cases Ajendraprasadji N.

Pande and another vs Swami Keshavprakeshdasji N.

and others 2007 (1) RCR (Civl) 481, Vidyabai and others vs Padmalatha and another 2009(1) R.C.R.(Civil) 763 and Ajit Singh vs Jaswninder Kaur 2009(1) RCR (Civil) 152.

Learned counsel for the respondents submits that the trial Court has passed a well reasoned speaking order by holding that the petitioners are not going to be prejudiced in any manner as the nature of the suit is not going to be changed.

I have heard the arguments of learned counsel for the parties and have also perused the impugned order as well as other documents on the file.

While allowing the application filed by the respondent- defendants for amendment of written statement, it has been mentioned by the trial Court that amendment in the written statement is necessary for the controveRs.involved in the Suit and to determine the real issue of controveRs.between the parties.

The finding recorded by the trial Court is C.R.No.4707 of 2007 (O&M) 3 reproduced as under :- “ 7.

I have considered these contentions.

The plaintiff has mentioned in para No.2 of the plaint that the plaintiff is the owner of the suit land.

It was duty of the plaintiff to elaborate the facts regarding acquisition of the suit land.

The defendant may be ignorant regarding the mode of acquisition of the suit land by the plaintiff.

If the plaintiff had given details regarding the acquisition of the suit land, then the defendant might have raised all these pleas of defence in the written statement.

The counsel for defendant argued that it took a long time for defendant to unearth the fraud committed by the plaintiff by procuring the sale deed on behalf of dead person.

He argued that the fraud is concealed and any party can come to the court regarding fraud whenever the same is discovered.

As per Order 6 Rule 17 CPC, the amendment of the pleadings can be allowed if such amendment is necessary for the purpose of determination of real points of controveRs.between the parties.

By way of proposed amendment, it can be known by the court as to whether the sale deed executed on behalf of the dead person by his attorney is genuine or not.

Therefore, this point goes to the root of the case.

Therefore, the said amendment is essential in order to adjudicate the real points of controveRs.between the parties.

The counsel for plaintiff argued that the plaintiff had filed a suit for share of produce against defendant which was decreed by the revenue court on 28.02.1997.

The copy of that judgment passed by SDP cum Collector is placed on file.

But this judgment is not passed by the Civil Court.

It is not relevant at this stage for deciding this application.”

8. So far as the delay is concerned, the defendants are yet to conclude their evidence.

The case was pending for evidence of the defendants C.R.No.4707 of 2007 (O&M) 4 on 14.05.2007 when this application was filed.

The plaintiff can be compensated by way of costs regarding delay.”

Although there is no dispute with regard to proposition of law that the amendment cannot be denied on the ground of delay in case it does not cause prejudice to the other party.

Order 6 Rule 17 of the CPC stands amended by way of proviso to Order 6 Rule 17 of the CPC, wherein, it has been 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 commencement of the trial.

The amendment sought cannot be said to be one which was known to the petitioners before commencing of the trial.

Otherwise also, there is no material change in the written statement.

It is not absolute proposition of law that the amendment cannot be allowed after the commencement of trial.

This Court in the case of Tejinder Singh vs Surjit Rai and another 2012(5) RCR (Civil) 566 has held as under :- It is not absolute proposition of law that the amendment cannot be allowed even after the trial commences.

This Court in case Tejinder Singh versus Surjit Rai and another,2011(3) PLR 318.has held as under:- “7.

The rule is divided into two parts.

FiRs.part speaks for a making amendment liberally at any stage of the proceedings before the trial commenced.

The object of the rule was not to dis-allow the relief to the plaintiff merely for a technical defect, error or omission made by him in his pleadings and if he had left anything in the plaint or it unnecessarily took such plea, then he could apply for adding or deleting such pleas by way of amendment.

However, vide Civil Procedure Code, Amendment of 1999, with a view to avoid the delay in adjudication of the issues, the legislature thought of deleting the provision, however, on account of raising hue and cry by the legal fraternity at large, this rule with C.R.No.4707 of 2007 (O&M) 5 amended shape was brought on the statute book w.e.f.1.7.2002 by the Act No.22 of 2002.

This amended provision consists of two parts.

The fiRs.part has been discussed above, whereas, in the second part, no absolute bar has been created by the statute regarding amendment of the pleadings yet, it envisaged that no application for amendment shall be allowed after the commencement of the trial.

However, if the parties to the proceedings are able to satisfy the Court that in spite of the due diligence, the party could not raise issue before the commencement of the trial and the Court on having been satisfied about the explanation submitted before it, could allow the amendment even after the commencement of the trial.

The law of amendment has been very liberal since the very beginning.

It envisages that at the time of deciding the application for amendment, the approach of the Court should be liberal to ensure that substantial justice is not denied.

The procedural law is handmaid of the administration of justice, meant to advance its cause, than to frustrate the same.

When the substantial justice and the procedural law come in confrontation with each other, then the former would prevail over the later.

It was observed in case Jai Jai Ram Manohar Lal v.

National Building Material Supply, AIR 196.S.C.1267 as under:- “rules of procedure are intended to be a handmaid to the administration of justice.

A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of the procedure.

The Court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala fide, or that by this blunder, he had caused injury to his opponent which may not be compensated for by an order of costs.

However, negligent or careless may have been the fiRs.omission, and however, late the proposed amendment, the amendment may, be allowed if it can be made without injustice to the other side.”

.”

8. Relying on this judgment, the Apex Court in M/s Ganesh Trading Co.v.Moji Ram, AIR 197.S.C.484 observed as under:- “Procedural law is intended to facilitate and not to obstruct the couRs.of substantive justice.

Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent deviations from the couRs.which litigation of particular C.R.No.4707 of 2007 (O&M) 6 causes of action must take.”

.”

9. Following the dictum of Supreme Court, this Court, in case Sardar Hari Bachan Singh v.

Maj.

Harbhajan Singh (1975) 77 P.L.R.21, observed as under:- “It is well settled law that, however, negligent or careless may have been the fiRs.omission and, however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side.

There is no injustice if the other side can be compensated by way of costs.

A plaintiff may add as new cause of action and the defendant may add a new defence.

Even a new case may be allowed to be introduced.

The Court has to take into consideration even subsequent events.

A further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided.

Where therefore, the plaintiff sought the permission merely to add a prayer for possession which did not alter the cause of action or change the essential nature of the suit, and the erect of the refusal of the amendment would have been to derive the plaintiff to fresh suit, the amendment should be allowed.”

.”

10. No doubt, with a view to curtail the flow of applications after the trial commences, the law left it to the satisfaction of the Courts regarding due diligence of the parties and the law of amendment envisages that if it is established that despite due diligence, the party could not have raised that matter before commencement of the trial depending upon the circumstances, the Court is free to order such application.”

In view of the facts and the settled proposition of law, there is no merit in the contention raised by learned counsel for the petitioners and the present petition, being devoid of any merit, is hereby dismissed.

However, since the suit has been delayed as there was interim order staying the proceedings, the trial Court is directed to proceed with the trial and to conclude the same preferably within a period of one year.

(DAYA CHAUDHARY) 13.03.2013 JUDGE gurpreet