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Monday, May 7, 2018

Order 6 Rule 17 of the Code of Civil Procedure,=The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case.=The High Court was of the view that Proviso to Order 6 Rule 17 of the Code of Civil Procedure, as duly amended, laid down that once the trial had commenced, no amendment could be allowed unless the court were to come to the conclusion that the party could not have raised the matter before the commencement of the trial despite due diligence.= At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the defendants.

1
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4568 OF 2018
(Arising out of SLP(Civil) Nos.7710 of 2018)
Gurbakhsh Singh and others ……Appellants
VERSUS
Buta Singh and another ..…. Respondents
JUDGMENT
Uday Umesh Lalit, J.
Leave granted
2. Civil Suit No.195 of 1968 filed by respondent No.1 for declaration on
the basis of reversionary rights was decreed ex-parte against the
predecessor-in-interest of the present appellants. After having come to know
about such ex parte decree dated 30.06.1969, present suit was filed by the
appellants for setting aside said decree.
2
3. The appellants pleaded in the suit that the file in respect of Civil Suit
No.195 of 1968 was not traceable in the record room. Issues were framed
and thereafter two official witnesses were examined, at which stage the
appellants preferred an application seeking amendment of the plaint. The
amendment sought by the appellant was as under:
“3-A. That the perusal of the copy of the order/judgment dated
30.06.1969 and decree shows that the defendant No.1 filed that
suit in the year 1968 deliberately without giving all the
particulars of the land at that point of time in the plaint in spite
of the fact that consolidation of holding did take place in the
year 1961-1962 and gave the old numbers before the
consolidation with ulterior motive. Since old numbers were not
in existence at the time of filing of the suit, an ex parte decree
has been procured by suspension of the material facts.
a) Land measuring 48 kanals 7 marlas entered at rect. No.39,
Killa No.19/2, 12, 19/1, 18/2, 10, 23, rect. No.38, killa No.5,
6/1, rect. No.60, killa No.2/1min.
b) Land measuring 36 kanals 16 marlas entered at rect. No.38,
kill No.16/2, 25/1, 14/2, 6/3, 24, 15/1, rect. No. killas
No.14, 15/1.
c) Land measuring 68 kanals entered at rect. No.213, killas
No.16/2, 14, 15, 17/1, 16/2, rect. No.114, killa No.11, 12, 10, 9,
rect. No.212, killa No.21, rect. No.92, killa No.5. It may also
be mentioned here that the suit filed by Buta Singh, defendant
No.1 alone as shown in the copy of the order/judgment and
decree of civil suit No.195 of 1968 without impleading all the
legal heirs of vendor Mehnga Singh and when the 2nd suit was
filed after the death of Mehnga Singh which was pending
before the court of Sh. Rajesh Garg, no detail of the vendees
and their successors in interest has been given in the plaint. At
the most if the decree is not set aside a fact disputed and denied
then too may the defendant No.1 is only at the best can claim
relief to the extent of 1/9th share of the total property and other
3
defendant No.17 to 24 are not legally entitled to any relief in
view of the ex parte decree passed in civil suit No.195 of 1968.
3-B That the prayer clause also requires to be amended. So
before the words “costs of the suit and after the words” during
the pendency of the suit following prayer may also be inserted.
4. The aforesaid application came to be dismissed by the trial court
observing that the appellants had failed to exercise due diligence and that the
facts in question could have been raised before framing of the issues. The
rejection of the application for amendment was challenged by way of Civil
Revision No.5373 of 2014 in the High Court. It was submitted on behalf of
the appellants that there was no change in the nature of the suit except that
specific khasra numbers were sought to be specified by way of amendment.
It was further submitted that the amendment would not prejudice the case of
the defendants.
5. The High Court, however, dismissed said revision petition by its
judgment and order dated 25.07.2017, which is presently under appeal. It
was observed by the High Court:
“No doubt, the amendment would not change the nature of the
suit, however, all amendments which do not change the suit
cannot be allowed particularly after the commencement of the
trial. It has been found by the Court that necessary pleadings
are already in existence in the original plaint.”
4
The High Court was of the view that Proviso to Order 6 Rule 17 of the
Code of Civil Procedure, as duly amended, laid down that once the trial had
commenced, no amendment could be allowed unless the court were to come
to the conclusion that the party could not have raised the matter before the
commencement of the trial despite due diligence.
6. In the present case the record of Civil Suit No.195 of 1968 in which
ex parte decree was passed on 30.06.1969 is not traceable. In the
circumstances, there could possibly be some inability in obtaining correct
particulars well in time on part of the appellants. At the time when the
application for amendment was preferred, only two official witnesses were
examined. The nature of amendment as proposed neither changes the
character and nature of the suit nor does it introduce any fresh ground. The
High Court itself was conscious that the amendment would not change the
nature of the suit. In the given circumstances, in our view, the amendment
ought to have been allowed. In any case it could not have caused any
prejudice to the defendants.
5
7. While allowing amendment of plaint, after amendment of 2002, this
Court in circumstances similar to the present case, in Abdul Rehman and
Anr. vs. Mohd. Ruldu and Ors.1
, had observed:
“11. The original provision was deleted by Amendment Act
46 of 1999, however, it has again been restored by
Amendment Act 22 of 2002 but with an added proviso to
prevent application for amendment being 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. The
above proviso, to some extent, curtails absolute discretion to
allow amendment at any stage. At present, if application is
filed after commencement of trial, it has to be shown that in
spite of due diligence, it could not have been sought earlier.
The object of the rule is that courts should try the merits of
the case that come before them and should, consequently,
allow all amendments that may be necessary for determining
the real question in controversy between the parties provided
it does not cause injustice or prejudice to the other side. This
Court, in a series of decisions has held that the power to
allow the amendment is wide and can be exercised at any
stage of the proceeding in the interest of justice. The main
purpose of allowing the amendment is to minimise the
litigation and the plea that the relief sought by way of
amendment was barred by time is to be considered in the
light of the facts and circumstances of each case. The above
principles have been reiterated by this Court in J. Samuel &
Others v. Gattu Mahesh and Others2
 and Rameshkumar
Agarwal v. Rajmala Exports (P) Ltd and Others.3
 Keeping
the above principles in mind, let us consider whether the
appellants have made out a case for amendment.”
1
 (2012) 11 SCC 341
2
 (2012) 2 SCC 300
3
(2012) 5 SCC 337
6
8. We, therefore, allow this appeal and accept the application for
amendment preferred by the appellants. The plaint shall stand amended in
terms of the proposed amendment. The trial court is directed to proceed
with the matter accordingly. There will be no order as costs.
………………………J.
(Arun Mishra)
…………………..……J.
(Uday Umesh Lalit)
New Delhi,
April 27, 2018

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