| SooperKanoon Citation | sooperkanoon.com/950387 |
| Court | Andhra Pradesh High Court |
| Decided On | Jun-26-2012 |
| Case Number | Writ Petition No.23000 of 2011 |
| Judge | V.V.S. RAO & B.N. RAO NALLA |
| Appellant | State of Andhra Pradesh, Rep. by the District Collector |
| Respondent | Special Court Under A.P. Land Grabbing (Prohibition) Act and Others |
Common Order: (V.V.S. Rao, J.)
The State of Andhra Pradesh through its District Collector, Ranga Reddy District invoked the jurisdiction of this Court under Article 226 of the Constitution of India seeking to quash the order of the Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (the Act). By the said impugned order dated 24.6.2011 made in I.A.No.356 of 2011 in LGC No.40 of 2003 the Special Court rejected permission for amendment of the pleadings in concise statement filed in LGC. As per Section 8(1) of the Act and the Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988 (the Rules), every applicant including the State alleging land grabbing by others has to submit the case in Form No.1, Column-15 that requires the applicant to file concise statement of the claims. Be it also noted, if the Special Court finds prima facie case of land grabbing as defined, it has to take cognizance of the LGC and direct publication of the cognizance in the Andhra Pradesh Gazette in Form-II A as required under the proviso to Section 8(6) of the Act and Rule 7 of the Rules. Further, Section 8(3) of the Act makes the provisions of the Code of Civil Procedure, 1908 (CPC) and the Criminal Procedure Code, 1973 (Cr.PC) applicable to the proceedings before the Special Court.
Government case
In the affidavit accompanying the I.A., for amendment, the petitioner pleaded that the application schedule land in LGC (Acs.56.20 guntas in S.Nos.10/1 and 10/2 – Old S.No.11 – Plot No.104) situated at Habsiguda Village of Uppal Mandal in Ranga Reddy District (hereafter, the schedule land) was originally maktha land of Jainuddin. Hyderabad Government acquired the land for establishment of Osmania University (OU). Nizam gave grant (inam) to Jainuddin. After death of Jainuddin in 1346 Fasli, Nizam did not issue fresh grant. But one Habibuddin trespassed into the land. He sold the land and the respondents are claiming the property through those sale deeds. The trespasser was evicted under the Andhra Pradesh Land Encroachment Act, 1905 (the LE Act) and the same was also notified. Habibuddin died on 30.12.1967 and after his death his alienees have no right over the property. To support this claim of the Government, an amendment was sought to the effect that Jainuddin was makthedar; after his death regrant was not made by the Ruler and consequently the property reverted and vested in the Government. They contended that the amendment does not in any manner change the cause of action or nature of the LGC nor prejudices the respondents.
Case of the respondents
Dr.V.RajeshwaraRao (respondent No.26 herein) filed main counter affidavit revealing the case as summed up in the next paragraph. Some of the respondents filed a common counter and the remaining respondents adopted the same.
The application for amendment is not maintainable. The application schedule lands are not maktha lands. These lands were not acquired for establishment of OU. The allegation that Habibuddin nor his alienees have no right or claim is denied. In 1956 OU – respondent No.36 herein – filed O.S.No.1 of 1956 for recovery of possession and the suit was dismissed. Appeal being CCCA No.61 of 1959 was preferred before this Court. It was also dismissed. Thereafter the Government initiated the proceedings under the LE Act. The same was challenged in writ proceedings. The High Court allowed the same on 30.6.1977 taking the view that the summary LE proceedings are not permissible. The Government filed Civil Appeals in the Supreme Court. By judgment dated 16.3.1982 in Government of A.P. v Tummala Krishnarao (1982) 2 SCC 134 : AIR 1982 SC 1081) the Supreme Court dismissed the appeals. The Government then filed O.S. No.36 of 1982 on the file of the Court of the Principal Subordinate Judge, Ranga Reddy for declaration and possession of the application schedule properties. The suit was filed alleging that the Government acquired the lands from late Jainuddin who was the pattadar of the lands and, therefore, the petitioner cannot now be allowed to amend the pleadings belatedly taking contradictory pleas. If the amendment is allowed after a period of 25 years, the matter has to be reopened and the respondents have to file their additional counters and documents, and lead evidence. This would further delay the matter. The proposed amendment is barred by limitation. The amendment sought is not additional plea as alleged and will change the cause of action and nature of the suit.
Impugned order of the Special Court
Whether the amendment sought for would change the nature or cause of action of the LGC? Whether in spite of due diligence the applicant could not raise the matter before commencement of the trial? These two points were addressed by the Special Court. Considering both the points together, the impugned order holds that the amendment application shows lack of ‘due diligence’ on the part of the petitioner as the plea is raised after twenty-five years after filing the suit, and two years after dismissal of amendment application. On other aspect of change of cause of action and nature of the case, as well, the conclusion of the Special Court went against the petitioner. The relevant observations are as follows.
The whole concise statement runs on the footing that the land was acquired from Late Zainuddin under the provisions of Hyderabad Land Acquisition Act IX of 1309 Fasli. Whether the land possessed by Zainuddin was maqta land or not, there is no specific pleading at all except the suffix ‘maqtadar’ added to the name Zainuddin. The wife of Zainuddin filed counter denying the alleged acquisition of the land. So, the crux of the matter in LGC on the basis of rival pleadings is whether the land was acquired from Zainuddin or not, and the result would follow the finding therein. Adding the work “Maqtadar” as a suffix to the name Zainuddin would not lead to the conclusion that the subject land was a maqta land unless there is a specific pleading. Pleading must be always specific. A cloudy pleading by way of a remote lifeless indication cannot be said to be a specific pleadings. Therefore, it must be held that there is no earlier pleading stating that the land taken from Zainuddin was ‘maqta land’. That way we are helpless in acceding to the contention of senior counsel Sri N.Subba Reddy. The proposed amendment also contradicts the earlier stance of applicant-State. In fact, several documents were got marked on behalf of the State to show that the land was acquired by the Government from Zainuddin. If the subject land vested in Government after abolition of Jagir/Inams, there was no need for the Government to acquire land unless Jagirdar/Inamdar was granted patta. … … Thus, if proposed amendment is allowed, it would introduce a new case. The character of the suit would change. It would negate the earlier pleading and runs contrary to the original claim. As already held, due diligence is lacking on the part of applicant-Government when the proposed amendment changes the character and nature of the suit the general rule that all amendments that would decide the real question in controversy cannot be invoked here.
Submissions
Sri N.Subba Reddy, the Counsel for the petitioner submits that the amendment application is bona fide; it is necessary for proper adjudication of all issues and to decide the real question in the controversy; the amendment does not cause any prejudice to the contesting respondents and that the prejudice, if any, can be compensated in terms of money. It does not result in change of cause of action and the refusal of amendment would lead to multiplicity of proceedings.
Sri S.Bal Chand, the Counsel for respondent No.36 herein submits that the Special Court committed an error in relying on Order VI Rule 17 of CPC as amended by CPC (Amendment) Act, 2002 (2002 CPC Amendment) which as per Section 16(2) of the said Act is only prospective with effect from 01.7.2002 and has no application to I.A.No.256 of 2001 filed by the petitioner. Nextly he would contend that Exs.B1 and B2 filed by the respondents and written statement filed by Habibuddin in O.S. No.1 of 1956 show that the schedule land is maktha/ inam land granted to Jainuddin and, therefore, when the relief claimed by the petitioner remains the same, an additional plea cannot be denied to be inserted in the concise statement.
Both the Counsel relied on the decisions in AkhilRanjan Das Gupta v B.N.Biswas (AIR 1954 CWR 536), Rahamtullav Mastan Seth (1956 ALT 806), PirgondaHongonda Patil v Kalgonda Shidgonda Patil (AIR 1957 SC 363), an unreported judgment of this Court in V.V.Ramanv Agro Industries Co-op. Estate (CCCA No.43 of 1974, dated 02.8.1977), State Bank of Hyderabad v Town Municipal Council (2007) 1 SCC 765), FomentoResorts and Hotels Ltd v Minguel Martins (2009) 3 SCC 571), RevajeetuBuilders and Developers v Narayanaswamy and Sons (2009) 10 SCC 84), JaswantKaur v Subhash Paliwal (2010) 2 SCC 124)and State of Maharashtra v Hindustan Construction Company Ltd (2010) 4 SCC 518).
Sri B.V.Subbaiah, Senior Counsel for respondents 44, 45, 52 and 53, Sri Venkata Raghuramulu for respondents 27, 73, 74, 74 and 76, and Sri T. Praveen Kumar for respondents 58 and 61 made the following submissions. The entire structure of LGC would be changed if the amendment is allowed; in the earlier suits filed by OU land was held to be private land; in concise statement there was not even material allegation that the land was maktha land and, therefore, the petitioner cannot be permitted to take inconsistent pleas; if the amendment is allowed, it amounts to change of cause of action and introducing new pleading which is contrary to earlier pleading including the finding of facts in TummalaKrishna Rao and, therefore, new pleadings cannot be introduced; and the amendment is belated and, therefore, it would cause prejudice and cannot be compensated in terms of money. Learned Counsel for the respondents relied on Kanda v Waghu (AIR 1950 PC 68),D.L.F. Housing and Construction Co. (P) Ltd v Sarup Singh (1969) 3 SCC 807 : AIR 1971 SC 2324), Modi Spinning and Weaving Mills Co. Ltd v Lodha Ram and Co. (AIR 1977 SC 680), Tummala Krishna Rao, SampathKumar v Ayyakannu (2002) 7 SCC 559 : AIR 2002 SC 3369),Rajesh Kumar Aggarwal v K.K. Modi (2006) 4 SCC 385 : AIR 2006 SC 1647), RevajeetuBuilders and Developers andHindustan Construction Company Limited.
Certiorari jurisdiction
The order of the Special Court refusing amendment is challenged in the certiorari proceedings under Article 226 of the Constitution of India. The arguments in the case spread over four days and the parties argued the matter as an appeal. We cannot, however, be forgetful of the limitations in the exercise of certiorari jurisdiction and scope of interference with orders of the Special Court under Article 226. Therefore the only point we need to advert to is whether the impugned order of the Special Court refusing amendment suffers from grave error apparent on the face of record warranting issue of certiorari.
The Court of judicial review would not ordinarily interfere with the finding of facts however grave they may be. It is only concerned with grave error of law which is apparent on the face of record. The error of law may arise when a tribunal wrongfully rejects admissible evidence or considers inadmissible evidence. In SyedYakoob v Radhakrishnan (AIR 1964 SC 477), it was held as follows.
There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding.
(emphasis supplied)
In JagdishPrasad v Angoori Devi (AIR 1984 SC 1447) the law in SyedYakoob was reiterated thus.
… … a writ of certiorari is issued for correcting the errors of jurisdiction committed by the courts or tribunals in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally or improperly i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice. A caution was indicated by saying that the jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the Court is not entitled to act as a court of appeal. That necessarily means that the findings of fact arrived at by the inferior court or tribunal are binding. An error of law apparent on the face of the record could be corrected by a writ of certiorari, but not an error of fact, however grave it may appear to be.
(emphasis supplied)
In C.I.T. v Karam Chand Thapar and Brothers (1989) 2 SCC 31 : AIR 1989 SC 1045), the issue was whether the finding of fact of Income Tax Appellate Tribunal can be interfered with in judicial review. Answering the plea in negative, the Supreme Court observed.
It is well settled that the Tribunal is the final fact-finding body. The questions whether a particular loss is a trading loss or a capital loss and whether the loss is genuine or bogus are primarily questions which have to be determined on the appreciation of facts. The findings of the Tribunal on these questions are not liable to be interfered with unless the Tribunal has taken into consideration any irrelevant material or has failed to take into consideration any relevant material or the conclusion arrived at by the Tribunal is perverse in the sense that no reasonable person on the basis of facts before the Tribunal could have come to the conclusion to which the Tribunal has come. It is equally settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse.
(emphasis supplied)
In H.P.Gandhiv Gopi Nath (1992) 2 SCC Supp. 312) the principle was again elucidated thus:
Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, to a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself.”
In Surya Dev Rai v Ram Chander Rai (2003) 6 SCC 675 : AIR 2003 SC 3044), the principles of in certiorari proceedings were summed up as below.
(1) Certiorari, under Article 226 the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules or procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(2) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(3) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(4) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(5) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
From the above binding authorities, the law may be culled out as follows.
1) The High Court is not an appellate authority over the decision of the special tribunals. While exercising the power of judicial review, the High Court cannot be oblivious to the conceptual difference between appeal and review;
2) The petition for a judicial review would lie only on grounds of grave errors of law apparent on the face of the record and not on the ground of error of fact, however grave it may appear to be;
3) When the tribunal renders a decision after determining the facts, no application for judicial review could be maintainable only on the ground that it has committed an error of fact, however grave it may appear, unless it is shown that such a finding is based on no evidence and the error of fact itself can be regarded as error of law in the sense that admissible evidence was rejected and inadmissible evidence was relied on;
4) The orders passed by the tribunal by exercising discretion cannot be interfered unless it is shown that exercise of discretion itself is perverse or illegal in the sense that the tribunal did not follow its earlier decision or binding authority to finding of facts and law as decided by the High Court or the Supreme Court, and
5) When the tribunal disposes of an application by applying the binding precedents of the High Court as well as the Supreme Court, it cannot be said it has committed any error of law apparent on the face of the record; in such cases the limited review before the High Court would be whether the binding principle has been appropriately applied or not; or the tribunal's decision which is rendered in ignorance of the statutory law on which case it must be held to suffer an error apparent on the face of the record.
Judicial review in Land Grabbing cases
The scope of judicial review of the order passed by the Special Court either in exercise of its original jurisdiction or appellate jurisdiction has been considered by the Supreme Court in KondaLakshmana Bapuji v Government of A.P. (AIR 2002 SC 1012). It was held that if the Special Court has not excluded relevant material from the consideration and not taken into consideration irrelevant material, its order cannot be interfered with under Article 226 of the Constitution of India. In State of A.P. v P.V.Hanumantha Rao (2003 (7) Supreme 456)dealing with the judicial review of orders of Special Court it was laid down as under.
True it is that remedy of writ petition available in the High Court is not against the 'decision' of the subordinate court, tribunal or authority but it is against the 'decision making process'. In the 'decision making process', if the court, tribunal or authority deciding the case, has ignored vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining. … … This Court has recognised the right of the High Court to interfere in orders of sub-ordinate courts and tribunals where (1) there is an error manifest and apparent on the face of the proceedings such as when it is based on clear misreading or utter disregard of the provisions of law and (2) a grave injustice or gross failure of justice has occasioned thereby.
No doubt, it was held that neither in exercise of power of writ under Article 226 nor in supervisory jurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence.
(emphasis supplied)
In A.P. Housing Board v Md.Sadathulla (2007) 6 SCC 566), referring to KondaLakshmana Bapuji the scope of judicial review in respect of orders passed under the Act, it is observed as under.
It was also held that the jurisdiction of High Courts under Article 226 as also of this Court under Article 136 of the Constitution is limited and findings of the fact arrived at by the Special Court cannot be interfered with in exercise of constitutional jurisdiction. The law laid down in Konda Lakshmana Bapuji was reiterated and quoted with approval in State of A.P. v. P.V. Hanumantha Rao (dead) through L.Rs. and Anr. (2003)10SCC121 by observing that an order passed by the Special Court can be interfered with by a High Court in exercise of power of judicial review where (1) there is an error manifest and apparent on the face of the proceedings such as when it is based on clear misreading or utter disregard of the provisions of law, and (2) a grave injustice or gross failure of justice has occasioned thereby. [See also GouniSatya Reddi v. Government of A.P. and Ors. AIR 2004 SC 3661 = (2004) 7 SCC 398].
(emphasis supplied)
In K. Sharada Bai v Shamshunnisa (2008) 3 SCC 49 : AIR 2008 SC 1105) the Supreme Court indicated that when the order of the Special Court is passed on appreciation of oral and documentary evidence, the writ Court cannot interfere with the order. The relevant observations are as below.
Inasmuch as the above conclusion is based on the appreciation of oral and documentary evidence led by the applicant and the respondents as well revenue records and the report of the Commissioner, the said conclusion cannot be faulted with. The High Court, after analyzing all the materials and finding that the petitioners before them who are appellants before us are land grabbers and grabbed 12 1/2 guntas of land, concurred with the decision arrived at by the Special Court and dismissed their writ petitions.
In the light of the abundant acceptable materials in the form of oral and documentary evidence coupled with the report of the Mandal Revenue Officer and of the Commissioner, we agree with the conclusion arrived at by the Special Court and the High Court and reject the claim of the appellants.
Therefore, though there is a tendency on the part of the lawyers to argue writ petitions filed against the orders of Special Court as appeals, we cannot treat them as appeals. The judicial review is permissible to a limited extent when (i) the relevant material is excluded and irrelevant material is considered, (ii) there is an error manifest and apparent on the face of proceedings, and (iii) a grave injustice or gross failure of justice is occasioned thereby.
Point for consideration
The well settled principles as summed up as above limit our enquiry. The error apparent or manifest in the impugned order can only attract certiorari to quash the order of the Special Court constituted to exercise the supplemental common law jurisdiction hitherto vested in the Civil Courts. The three distinct aspects pressed by the Government and OU can be considered under separate headings.
Effect of amended provision
Rule 17 of Order VI of CPC allows a party to the proceedings to alter or amend his pleadings at any stage of the proceedings by showing that such amendments are necessary for the purpose of determining the real question in controversy between the parties. The provision was amended by 1976 CPC amendment whereafter the pleadings could be amended only in limited situations. By Section 16 of 1999 CPC Amendment Act, Rules 17 and 18 of Order VI were completely omitted. Again by Section 7 of 2002 CPC Amendment Act, these were introduced making it obligatory to obtain leave of the Court to amend the pleadings after commencement of the trial by showing that in spite of due diligence the party could not raise the matter before the trial. For ready reference we extract Order VI Rule 17 of CPC as existed in 1976, after 1999 CPC amendment and 2002 CPC amendment, in the table below.
| Order VI Rule 17 as existed after 1976 Amendment w.e.f. 01.2.1977 (no changes were made) | Order VI Rule 17 as existed after 1999 Amendment came into force w.e.f. 01.7.2002 (AIR (9) 1922 PC 249) | Order VI Rule 17 existed after 2002 Amendment came into force w.e.f. 01.7.2002 (2003) 1 SCC 49) |
| 17. Amendment of Pleadings:- The Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings 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. | Rules 17 and 18 shall be omitted.(N.B. Till 01.2.2002 the Rules 17 and 18 as they existed in CPC 1908 as amended in 1976 continued to be in force) | 17. Amendment of Pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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. |
(i) that they do not work injustice to other side, and (ii) that they are necessary for the purpose of determining the real question in the controversy. Amendment should be refused only where the other party cannot be placed in the same position as if pleading had been originally correct but the amendment would cause him injury which could not be compensated in terms of money (PirgondaHongonda Patil). But if any amendment amounts to setting up of and alteration of real matter in controversy between the parties, it cannot be allowed (Ma Shwe Mya v Maung Mo Hnaung (2005) 6 SCC 344) and Kanda).
Order VI Rule 17 became a cause for delayed adjudication. Considering the problem, Justice V.S.Malimath as well as Law Commission of India in its 129th Report suggested among others various measures, to curb the practice of filing applications for amendments whenever the parties liked. Accepting the same, 1999 CPC Amendment was enacted and by Section 16(iii), Rules 17 and 18 of Order VI CPC were omitted. Even before it was brought into force by the Central Government by issuing a notification under Section 1(2) thereof, the Parliament again enacted 2002 CPC Amendment Act. 1999 Amendment Act was challenged in Salem Advocate Bar Assn. (I) v Union of India (2009) 3 SCC 511). A Division Bench of the Supreme Court appointed an advisory committee under the chairmanship of Justice M.Jagannadha Rao, retired Judge of the Supreme Court inter alia “to ensure that amendments made become effective and result in quicker dispensation of justice”.
The committee filed three-part report before the Supreme Court. The Division Bench of the Supreme Court in Salem Advocate Bar Assn. (II) v Union of India (1884) 26 Ch D 700 (CA) considered the report and accepted various proposals made by the committee and issued directions to the High Courts, Central Government and State Governments to expeditiously take up follow-up action in that regard. Interesting aspect of this, is that there was no serious objection either for dropping Rules 17 and 18 of Order VI CPC by 1999 Amendment Act or again re-introducing the same by 2002 Amendment Act.
The Supreme Court dealt with Order VI Rule 17 as restored by 2002 Amendment and observed that, “to some extent the proviso to Rule 17 of Order VI curtails absolute discretion to allow amendment at any stage … but if the application is filed after commencement of trial it has to be shown that in spite of due diligence, such amendment could not have been sought earlier, and that the object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision”. Thus a distinction between the applications for amendment filed before commencement of trial and those filed after commencement of trial is highlighted and the curtailment of Court’s discretion by the amendment is approved.
Section 16 of 1999 Amendment Act omitted Rules 17 and 18 of Order VI of CPC. This came into effect on 06.06.2002. By Section 7 of 2002 Amendment Act Rules 17 and 18 were inserted permitting the amendments before commencement of trial and if a party proves that in spite of due diligence, he/she could not raise before commencement of trial, discretion was given to the Court to allow amendments sought after commencement of trial. Section 16 of 2002 Amendment Act repealed the amendments made by the State legislature or High Court before that Act but by clause (b) of sub-section (2) saved, Rules 17 and 18 of Order VI in their application in respect of pleadings filed before the commencement of Section 16 of 1999 Amendment Act. So to say, the amendments sought prior to 06.6.2002 can be construed by the Court without applying the proviso to Rule 17 of Order VI. What is the effect of this on the consideration of applications for amendment filed in the suits and other proceedings initiated before 06.6.2002.
In Town Municipal Council, the Supreme Court considered Section 16(2)(b) of 2002 Amendment Act and held that, “there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order VI Rule 17 of CPC shall not apply”. In SumeshSingh v Phoolan Devi (2009) 3 SCC 511), the same view was reiterated holding that the amendments carried out to CPC shall only apply in respect of suits filed after coming into force of the amending Acts. In view of this, the observations by the Special Court that the petitioner failed to exhibit due diligence in seeking amendment in time, are not called for because the Special Court did not reject the applications for amendment on that ground alone. The factum of dismissal of similar application being I.A.No.242 of 2006 two years before the present application also weighed with the Special Court. Indeed, applying the well settled principles which were interpretatively read into Order VI Rule 17 as it existed prior to 1999 and 2002 Amendment Acts were considered and the amendment was rejected. Therefore, we do not feel persuaded by the argument of Sri K.Bal Chand that the impugned order suffers from error only on that ground. The impugned order, we may, reiterate is based on different grounds and merely because the Special Court made certain observations in this regard, the petitioner cannot succeed in this writ petition.
Contradictions in the pleadings and introducing a new case
It is convenient to deal with these two aspects together. The case of the petitioner before the Special Court is that the petition schedule land forming part of Acs.301.00 in old survey Nos.1 to 10, 16 to 27 (new survey Nos.93/2 to 9, 40/1 to 5 and 43 to 52) was acquired by the Nizam Government from previous owners Jainuddin, Nawab Jung Bahadur and Babar Mirza for OU. The University could not be established. The Government wanted the owners to refund the compensation. As they could not do so, the proposals to give part of the land were accepted and subsequently, the Collector again fixed compensation. The land of Jainuddin was also acquired in the process, but it was encroached by the respondents’ predecessors in title. Thereafter, as seen from the concise statement, there have been three rounds of litigation either between the State Government and/or OU on one hand, and the private parties who claimed to have purchased the land on the other hand. In the first round of litigation, a suit being O.S.No.1 of 1956 was filed on the file of the Court of the District and Sessions Judge, Hyderabad District by OU for possession. It was dismissed and the appeal before the City Civil Court appeal being C.C.C.A.No.61 of 1959 was also dismissed by this Court on 24.01.1964.
In the second round of litigation, at the instance of OU, State Government initiated steps to recover possession under the LE Act. Possession was also allegedly taken and notification was issued to that effect on 03.6.1967. Ultimately the case ended in Supreme Court. In TummalaKrishnarao, the Supreme Court did not approve the proceedings under the Land Acquisition Act, 1894 and gave liberty to the State Government to file a suit for declaration of title.
In the third round of litigation, the suit filed O.S.No.36 of 1986 on the file of the Court of the Principal Subordinate Judge, Ranga Reddy District for declaration of title and recovery of possession. In 2003, the same stood transferred to Special Court as L.G.C.No.40 of 2003 (present proceedings). The case of the Government all along in these matters has been summarised by the Supreme Court in TummalaKrishnarao as follows.
We are concerned in these appeals with three groups of lands situated in Habsiguda, Hyderabad East Taluk, Andhra Pradesh. Those lands are: RS No. 10/1, which corresponds to Plot No. 94 admeasuring 10 acres and 2 guntas; RS No. 10/2 which corresponds to Plot No. 104 admeasuring 9 acres and 33 guntas; and RSs Nos. 7, 8 and 9 which correspond to Plot No. 111 admeasuring 26 acres and 14 guntas. These lands belonged originally to Nawab Zainuddin and after his death, they devolved on Nawab Habibuddin. Sometime between the years 1932 and 1937, certain lands were acquired by the Government of the Nizam of Hyderabad under the Hyderabad Land Acquisition Act of 1309 Fasli, the provisions of which are in material respects similar to those of the Land Acquisition Act, 1894. The lands were acquired for the benefit of the Osmania University which was then administered as a Department of the Government of Hyderabad. The University acquired an independent legal status of its own under the Osmania University Revised Charter, 1947, which was promulgated by the Nizam.
The question whether the aforesaid three plots of land were included in the acquisition notified by the Government of Nizam became a bone of contention between the parties, the Osmania University contending that they were so included and that they were acquired for its benefit and the owner, Nawab Habibuddin, contending that the three plots were not acquired. On February 13, 1956 the Osmania University filed a suit (OS No. 1 of 1956) against Nawab Habibuddin, in the City Civil Court, Hyderabad, claiming that the three lands were acquired by the Government for its benefit and asking for his eviction from those lands. That suit was dismissed in 1959 on the ground that Plot No. 111 was not acquired by the Government and that though Plots Nos. 94 and 104 were acquired, the University failed to prove its possession thereof within 12 years before the filing of the suit. In regard to Plots Nos. 94 and 104, it was found by the trial court that Habibuddin had encroached thereupon in the year 1942, which was more than 12 years before the filing of the suit. Civil Appeal No. 61 of 1959 filed by the University against that judgment was dismissed on January 24, 1964 by the High Court which affirmed the findings of the trial court. The State Government was not impleaded as a party to those proceedings.
On May 8, 1964 the Osmania University wrote a letter to the Government of Andhra Pradesh, requesting it to take steps for the summary eviction of persons who were allegedly in unauthorised occupation of the three plots. On December 8, 1964, the Tahsildar, Government of Andhra Pradesh, acting under Section 7 of the Land Encroachment Act, 1905, issued a notice to Nawab Habibuddin to vacate the lands and on December 15, 1964 the Tahsildar passed an order evicting him from the lands. The appeal filed by Habibuddin to the Collector was dismissed in 1965 and the appeal against the decision of the Collector was dismissed by the Revenue Board in 1968. During the pendency of the appeal before the Revenue Board, the respondents purchased the plots from Habibuddin for valuable consideration and on the death of Habibuddin, they were impleaded to the proceedings before the Revenue Board. They preferred an appeal from the decision of the Revenue Board to the Government but that appeal was dismissed on November 26, 1973.
The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary enquiry contemplated by Sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. Maybe, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.
By seeking an amendment in 2011 in suit (now LGC) which is pending since 1986, the Government wants to plead that Jainuddin was granted Maktha (inam patta); after his death there was no re-grant and therefore, the land stood reverted to the State (Nizam) because the makthadar can only enjoy the property during his lifetime. This would certainly change the nature of title set up by the Government. When in the second round of litigation, the matters reached the apex Court and the Government only projected their case based on land acquisition proceedings, the Special Court was correct in rejecting the amendment holding that it would not only contradict Government’s earlier case but also results in introducing a totally different case. Such an amendment would certainly cause grave prejudice to the contesting respondents.
In Rajesh Kumar Aggarwal the Supreme Court noticed that Order VI Rule 17 of CPC consists of two parts. The first part is discretionary leaving it to the Court to order amendment of pleadings whereas the second part is imperative and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. Therein the Supreme Court also pointed out that where the subsequent events sought to be introduced in the pleadings by way of amendment shorten litigation besides preserving and safeguarding the rights of both the parties, the Court ought to allow the amendment as a rule of justice, equity and good conscience. But if any amendment results in changing the basic structure of the suit, the amendment may be refused (see paragraphs 16, 17 and 18 of SCC).
In RevajeetuBuilders the Supreme Court referring to the leading English case Cropper v Smith (1884) 26 Ch D 700 (CA) and other leading decisions on the subject, reiterated that whether amendment is necessary to decide real controversy; whether any prejudice or injustice to other party is likely to cause; and whether compensating the opposite party with costs would mitigate the hardship, are the questions which need to be considered by the Court while ordering amendment. The principles relevant for the purpose were indicated as follows.
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
Thus if the amendment changes basic structure of the suit or amendment brings out fundamental changes in the nature and character of the suit, the Court cannot permit amendment (Rajesh Kumar Aggarwal andRevajeetu Builders). Even compensating opposite party with costs would not mitigate because prejudice caused by the fundamental changes brought out in the suit would defeat the justice. In this case as we have pointed out above in the very first stage of litigation as well as the second stage of litigation all along, the case of the Government has been that the land was acquired for OU and the respondents purchased the land from a land grabber who had no right to sell the property. Now altogether a different case is sought to be set up, which cannot be permitted in a case which is five decades old.
Counsel for Government and the counsel for OU placed reliance on various documents which appears to have already marked in the trial before the Special Court to contend that in view of the evidence to show that Jainuddin was Makthadar having got the grant from the Nizam, nobody could have claimed the grant after his death and therefore, no prejudice would be caused by bringing in amendment by the Government. We are afraid such a submission cannot be accepted. Any amendment which removes the level playing field between the parties cannot be allowed by a Court. Indeed, the Government never projected such a case anywhere in the long drawn battle. Further as pointed out in TummalaKrishnarao the question as to title to three plots has to be decided by the civil Court with reference to the acquisition proceedings. This cannot be ignored nor a party to the same decision of the Supreme Court can be allowed to project altogether a different case. It is well settled that no amount of evidence can be looked into without therebeing a proper pleading. Even if the documents to which this Court’s attention has been invited are construed as suggested by the counsel, in the absence of any pleading, much help cannot be derived from those documents. We, however, hasten to add that we are only making these observations with reference to the amendment application and must not be understood to have expressed any opinion on the contents of the documents, some of which are marked by the respondent themselves.
In the result, for the above reasons, we do not find any grave error apparent on the face of record in the impugned order passed by the Special Court. There is no necessity to interfere with such well considered order. The writ petition as also the miscellaneous petitions shall stand dismissed. Consequently, the vacate petitions shall stand disposed of accordingly. There shall be no order as to costs.
(Per Hon’ble Sri Justice B.N.Rao Nalla (As Hon’bleSri Justice B.N.RaoNallais abroad, as advised by the Hon’blethe Acting Chief Justice, the draft Judgment was sent by email id., plnrao_plnrao@yahoo.co.in of P.L.NarasimhaRao, Personal Secretary to Hon’bleSri Justice V.V.S.Rao. In response thereto, His Lordship has communicated through email agreeing with the Judgment proposed. It is learnt that BNRN,J is not likely to resume duties of the office before 10.07.2012, the date on which VVSR,J would be demitting office on superannuation. Therefore, after obtaining the assent, this Judgment is delivered on behalf of the Bench.)
I have gone through the draft Judgment sent to my e-mail address, since I am abroad.
I agree.