Sumit Gupta v. Prema Gupta

16. Mr. Tripathi has also placed reliance on the judgment of the Supreme Court in Asian Hotels (North) Ltd. v. Alok Kumar Lodha[1] and Alkapuri Cooperative Housing Society Ltd. v. Jayntibhai Naginbhai[2].

17. Mr. Paramjeet Singh, learned Counsel for the respondent/plaintiff, arguing per contra, submits that Order VI Rule 17 of the CPC permits for all such amendments to be incorporated as are necessary to decide the real issue in controversy between the parties.

18. The issue in controversy being the entitlement of the respondent to the suit properties, and the petitioner having pleaded competing titular rights on the basis of the Gift Deeds dated 6th February 2017 and 16th February 2017, Mr. Singh submits that the challenge to the Gift Deeds was essential in order to appropriately adjudicate on the real nature of the controversy between the parties.

19. Besides, he submits, the amendment had been sought at a pretrial stage and no serious prejudice would result to the petitioner even if the amendments were allowed.

20. In that view of the matter, and keeping in mind the fact that the impugned order was essentially discretionary in nature, Mr. Singh submits that no case for interference with the impugned order under Article 227 of the Constitution of India can be said to exist.

21. Having heard learned Counsel for the parties and perused the material on record, and in view of the law on the subject, as it stands today, I am of the opinion that the impugned order dated 25th July 2019 does not invite interference under Article 227 of the Constitution of India.

22. The respondent, in the suit instituted by her against the petitioner, was claiming titular rights in respect of the suit properties on the basis of the Will dated 16th February 2017 stated to have been executed by R.D. Gupta, whereunder the suit properties had been entirely bequeathed to the respondent, to the exclusion of all other legal heirs of R.D. Gupta, including the petitioner. The claim for injunction, as contained in the suit, was entirely predicated on the titular rights claimed by the respondent over the suit properties. According to the plaint, the respondent was the absolute owner of the suit properties by virtue of the Will dated 16th February 2017 supra, and the petitioner had no right, whatsoever, over the suit properties. It was on this basis that the respondent sought injunction against the petitioner from creating third party rights in respect of the suit properties.

23. As against this, the written statement filed by the petitioner asserted titular rights in respect of the suit properties on the basis of Gift Deeds dated 6th February 2017, also stated to have been executed by R.D. Gupta. Once these Gift Deeds had been asserted by the petitioner, the trial court would, in examining the rival titular claim, have to necessarily examine the claim of the petitioner predicated on the Will dated 16th February 2017, vis-a-vis the claim of the respondent predicated on the Gift Deeds dated 6th February 2017.

24. In these circumstances, it was but necessary for the respondent to challenge the Gift Deeds on the basis of which the petitioner claimed title. Indeed, if such a challenge were not to be allowed, the entire proceedings would become skewed, as the petitioner had, in his written statement filed by way of response to the respondent’s suit, disputed the Will on the basis of which the respondent claimed title. Once the petitioner had disputed the Will on the basis of which the respondent claimed title, the respondent could not be restrained from disputing the Gift Deeds on the basis of which the petitioner claimed title.

25. It cannot, therefore, be said that, by amending the plaint to raise such a dispute, the nature of the claim and the nature of the controversy was changed. The claim was, and continues to be, a claim of rival titular rights over the suit properties. The issue to be determined by the Court is the party in whose favour such titular rights enure.

26. By, therefore, amending the plaint to incorporate a challenge to the Gift Deeds asserted by the petitioner, it cannot be said that the respondent was seeking to alter the cause of action in the plaint or the nature of the suit.

27. Even otherwise, it has been held by the Supreme Court in Abdul Rehman v. Mohd. Ruldu[3] that it is permissible for a plaintiff to, after the filing of a written statement by the defendant, amend the plaint to incorporate a challenge to any claims that the defendants may have raised in the written statement. One may refer to the paras 12,13,18 and 19 of the said report in this regard: “12. It is true that originally the appellants have approached the trial court with a prayer for permanent prohibitory injunction restraining Respondents 1-3 herein from forcible and illegal dispossession of the appellants herein from the land in dispute. Respondents 1-3 herein (Defendants 1-3 therein) filed a written statement wherein they specifically alleged that they have stepped into the shoes of Ramzanan and Smt Bashiran and Rashidan on the basis of the sale deeds dated 25-8-2003. It is the claim of the appellants that the abovesaid Ramzanan and Smt Bashiran and Rashidan have no concern with the ownership of the land in dispute and no right to alienate the suit land to the defendants or anybody else. In view of the stand taken by the defendants in their written statement, in the application filed under Order 6 Rule 17 of the Code, the appellants have specifically raised that the alleged Sale Deeds Nos. 1810 and 1811 dated 25-8-2003 in favour of Defendants 1-3 executed by Ramzanan and Bashiran and Rashidan are liable to be set aside and have no effect on the rights of the plaintiffs and Saifur Rehman qua the suit land and Mutations Nos. 781 and 782 sanctioned on the basis of abovenoted sale deeds dated 25-8-2003 are also liable to be set aside. In view of the claim of the appellants, we verified the necessary averments in the written statement of Defendants 1 and 3 and we agree with the stand of the appellants.

13. Next, we have to see whether the proposed amendments would alter the claim/cause of action of the plaintiffs. In view of the same, we verified the averments in the unamended plaint. As rightly pointed out by Ms Manmeet Arora, learned counsel for the appellants that the entire factual matrix for the relief sought for under the proposed amendment had already been set out in the unamended plaint. We are satisfied that the challenge to the voidness of those sale deeds was implicit in the factual matrix set out in the unamended plaint and, therefore, the relief of cancellation of sale deeds as sought by the amendment does not change the nature of the suit as alleged. It is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by the trial court and the High Court cannot be sustained. It is not in dispute that the relief sought by way of amendment by the appellants could also be claimed by them by way of a separate suit on the date of filing of the application. Considering the date of the sale deeds and the date on which the application was filed for amendment of the plaint, we are satisfied that the reliefs claimed are not barred in law and no prejudice should (sic would) have been caused to Respondents 1-3 (Defendants 1-3 therein) if the amendments were allowed and would in fact avoid multiplicity of litigation. *****

18. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.

19. In the light of various principles which we have discussed and the factual matrix as demonstrated by the learned counsel for the appellants, we are satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendants 1-3) are in no way prejudiced and they are also entitled to file additional written statement if they so desire…...”

28. Insofar as the scope of Order VI Rule 17 of the CPC is concerned, there is wealth of authority on the point. The judgment of the Supreme Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd[4] (“LIC” hereinafter) digests almost all the earlier decisions on the point, whereafter the law has been enunciated, in the said decision, in paras 19 to 32 of the report, thus:

20. Again in T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board[6], this Court observed as follows:

21. So far as the answer to the specific plea that the claim of damages is barred by limitation and cannot be permitted at this stage is concerned, it becomes necessary to examine the various judicial pronouncements of this Court. The principles governing an amendment which may be permitted even after the expiry of the statutory period of limitation were laid down by the Privy Council in its judgment in Charan Das v. Amir Khan[7]. In this case, the Privy Council laid down the principles thus: “…..That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases: see for example Mohummud Zahoor Ali v. Rutta Koer, where such considerations are outweighed by the special circumstances of the case, and AIR 1957 SC 357

AIR 1921 PC 50 their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one.”

22. It would be useful to also notice the observations of this Court in, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil[8], wherein this Court considered an objection to the amendment on the ground that the same amounted to a new case and a new cause of action. In this case, this Court laid down the principles which would govern the exercise of discretion as to whether the court ought to permit an amendment of the pleadings or not. This Court approved the observations of Batchelor, J., in the case of Kisandas Rupchand v. Rachappa Vithoba Shilwant[9], when he laid down the principles thus:

23. This Court has repeatedly held that the power to allow an amendment is undoubtedly wide and may be appropriately exercised at any stage in the interests of justice, notwithstanding the law of limitation. In this behalf, in Ganga Bai v. Vijay Kumar10, this Court held thus:

24. Again in Ganesh Trading Co. v. Moji Ram11, this Court laid down the principles thus:

25. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (See South Konkan Distilleries v. Prabhakar Gajanan Naik12 )

26. But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of statutory period of limitation.

27. In this behalf, in A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation13, this Court held thus:

28. In case entitled, G. Nagamma v. Siromanamma15, this Court considered the proposed amendment of the plaint and noticing that neither the cause of action would change nor the relief would be materially affected, allowed the same. This Court in this case noticed that in the plaintiff's suit for specific performance, the plaintiff was entitled to plead even inconsistent pleas and that in the present case, the plaintiffs were seeking only the alternative reliefs. It appears that the plaintiffs had filed a suit for specific performance of an agreement of re-conveyance. By the application under Order VI Rule 17 of the CPC for amendment of the plaint, the appellants were pleading that the transactions of execution of the sale deed and obtaining a document for re-conveyance were single transactions viz. mortgage by conditional sale. They also wanted to incorporate an alternative relief to redeem the mortgage. At the end of the prayer, the plaintiff sought alternatively to grant of a decree for redemption of the mortgage. This amendment was permitted by this Court.

29. In Pankaja v. Yellappa (dead) by lrs.16, this Court held that it was in the discretion of the court to allow an application under

AIR 1967 SC 96: (1966) 1 SCR 796 [L.R.] 19 Q.B. 394

Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The Court noticed that there was no absolute rule that the amendment in such a case should not be allowed. It was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would be apposite to notice the observations of this Court in this pronouncement in extenso. The principles were laid down by this Court thus:

30. From the above, therefore, one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the 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.

31. In Ragu Thilak D. John v. S. Rayappan17, this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the suit itself like the one made by the High Court in the case on hand.

32. In a decision in Vishwambhar v. Laxminarayan (Dead) through Lrs18., this Court held that the amendment though properly made cannot relate back to the date of filing of the suit, but to the date of filing of the application.”

29. I have, in my judgment in Amit Bansal v. CSH Power Himoinsa Pvt. Ltd19, had an occasion to examine the earlier decisions on the point on Order VI Rule 17 of the CPC and to cull out what appear to me, to be the propositions emanating therefrom.

30. I have, in the said decision, adverted to the judgment in LIC[3] and, thereafter, have proceeded to observe thus, in paras 46 and 47 of the report:

16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

17. In our view, since the cause of action arose during the pendency of the suit proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court.

19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.”

47. It would be appropriate, as the issue arises in case after case, to distil, from the above decisions, the defining principles governing exercise of jurisdiction under Order VI Rule 17 of the CPC (where the prayer for amendment is made prior to commencement of trial):

(i) Ordinarily, the Court is required to be liberal while dealing with a prayer for amendment. Prayers for amendment of written statements are required to be treated even more liberally than prayers for amendment of plaints.

(ii) Where the Court finds that declining the prayer for amendment would result in the applicant suffering irreparable loss or injury, the amendment should be allowed. Qua the opposite party who opposes the amendment, the Court is required to examine whether the amendment would result in irreversible injustice; else, it should be allowed.

(iii) There is no absolute bar to allowing an amendment which introduces a cause of action which is, by then, barred by time. While, ordinarily, such an amendment would be refused, the matter ultimately rests with the discretion of the Court and, if the amendment is found necessary in the interests of justice, it would be allowed. The fact that the amendment introduces a relief which, by then, is barred by time is, therefore, merely a consideration to be borne in mind by the Court.

(iv) The ultimate consideration has to be subserving of the cause of justice and avoiding multiplicity of litigation.

(v) All amendments are mandatorily required to be allowed which

(a) do not work injustice to the other side, and (b) are necessary for determining the real questions in controversy between the parties. It must be remembered, in this context, that Courts are ultimately required to adjudicate on the merits of the cases that come before them.

(vi) If an amendment is sought to correct an inefficiency in originally stating the case, it should be allowed. Such an error should be permitted to be rectified by amendment, so long it is not fraudulent, and the remedial steps taken in that regard do not unjustifiably injure accrued rights.

(vii) All amendments which are necessary to determine the real issue in controversy in the suit, should be allowed.

(viii) Amendments which alter or substitute the cause of action originally pleaded should not be allowed.

(ix) Amendments which seek to negate admissions of fact, or which are mutually destructive therewith, should not be allowed. On the other hand, inconsistent pleas and alternative reliefs can be permitted to be introduced by amendment.

(x) An amendment which does not set up a new case, or introduce a new cause of action, but merely amounts to incorporating a different or additional approach to the same facts, should be allowed, even after expiry of limitation.

(xi) The expression “cause of action”, in this context, does not mean “every fact which it is material to prove to entitle the plaintiff to succeed”, which is its normally understood connotation. It only means a new claim made on a new basis constituting new facts. The word “new case” has to be understood as meaning “new set of ideas”.

(xii) An amendment which seeks to introduce an additional relief, the factual basis for which already exists in the plaint as originally filed, should be allowed.

(xiii) An amendment which merely adds to the facts already pleaded should be allowed.

(xiv) Courts should not adopt a hypertechnical approach while dealing with prayers for amendment of pleadings. Technicalities of law should not be allowed to hamper administration of justice.

(xv) In this context, the Court should bear in mind the fact that its objective should be adjudicating and deciding on the competing and conflicting rights of parties, and not punishing parties for their mistakes.

(xvi) If a new cause of action arises during the pendency of a suit, and the plaintiff would be entitled to file a fresh suit based thereon, the plaintiff should be allowed to amend the existing suit and introduce the claim by amendment. Events subsequent to the filing of the suit have, therefore, also to be borne in mind by the Court.

(xvii) The Court examining a plea of amendment is not concerned with the correctness, falsity, or merits of the case that the amendment seeks to set up. The Court should not, therefore, record any findings on the merits of the amendment, or the stand that is sought to be canvassed thereby.” (Emphasis Supplied)

31. Viewed thus, it is clear that no exception can be taken to the decision of the learned Civil Judge to allow the respondent’s application under Order VI Rule 17 of the CPC.

32. Adverting to the judgments cited by Mr. Tripathi, it is clear that they are distinguishable on facts.

33. Asian Hotels[1] was a case in which Asian Hotels had been granted licences for individual shops in the Hyatt Residency Hotel (hereinafter referred to as the “Hotel”) at Delhi to various shopkeepers including the Alok Kumar Lodha, the respondent before the Supreme Court.

34. Alok Kumar Lodha sought to revoke the licences vide notice dated 29th May 2020. The licensees (the respondent before the Supreme Court) instituted a suit against Asian Hotels before this Court, seeking a declaration that the licences were irrevocable and perpetual and that their proposed revocation was illegal and void. A decree of declaration was also sought, to the effect that the respondents had unfettered right to occupy and use the shop in their possession.

35. During the pendency of the suit, Asian Hotels moved an application under Order VI Rule 17 of the CPC, seeking to amend the plaint. The amendment dealt with certain mortgages created by the licencees in respect to the Hotel with various banks. Asian Hotels sought to contend, by the amendment, that the mortgages crated in favour of certain banks by the respondent licensees were illegal and void ab initio. Consequential amendments challenging the said mortgages, and seeking a declaration that the mortgages were illegal and void were, therefore, sought to be incorporated in the plaint. A parallel amendment to the prayer clause was also proposed.

36. The Supreme Court noted that, by the amendment, an entirely new controversy was being sought to be introduced. The controversy in the suit as originally filed, it was noted, dealt with the right of the respondent licensees to continue in the shops in their occupation, whereas the claim that was sought to be introduced by amendment was with respect to the validity of the mortgages created by the respondents in the Hotel in favour of various banks. The mortgages did not form any part of the cause of action originally pleaded in the suit. Neither did the suit contemplate or envisage any challenge to the said mortgages. It was in these circumstances that the Supreme Court held that such a wholesale incorporation of an entirely new cause of action, foreign to the cause of action on the basis of which the suit was originally instituted, could not be permitted under Order VI Rule 17 of the CPC. One may reproduce, to advantage, paras 33, 34 and 36 of the report, thus:

37. Alkapuri[2], similarly, disallowed the amendment that was sought in that case, on the ground that it was predicated on an entirely different cause of action, distinct from the cause of action forming subject matter of the suit originally instituted, which had arisen prior to the institution of the suit. Para 18 of the report reads thus:

38. In the present case, there is no alteration of the cause of action in the suit as originally instituted by the respondent against the petitioner, by the amendment that the respondent seeks to incorporate. The respondent was, at all times and continues to be, asserting her titular rights in respect of the suit properties.

39. The suit, as originally instituted merely referred to the Will on the basis of which such rights were pleaded. The petitioner, in his written statement filed by way of reply to the suit, asserted, per contra, two Gift Deeds on the basis of which the petitioner claimed parallel titular rights.

40. It was necessary, therefore, for the respondent, to succeed in the suit to contest the claim of the petitioner on the basis of the Gift Deeds asserted by him. It was for this reason that a challenge to the said effect, with a parallel declaration that the Gift Deeds were null and void, was sought to be incorporated by way of amendment. It cannot, therefore, be said that the amendment either altered the original cause of action or changed the nature of the suit. The nature of the suit continues to remain a suit by which titular rights in respect of the suit properties are being asserted.

41. Besides, the amendment was sought at a pre-trial stage. There is a vital and fundamental difference between the amendment sought after, vis-a-vis an amendment which is sought before, trial has commenced. An amendment sought after the trial has commenced is subject to the rigours of the proviso to Order VI Rule 17 of the CPC, in which case the party seeking amendment has to satisfy the court as to why the facts which were sought to be incorporated by way of amendment were not originally pleaded. No such responsibility attaches to a party who seeks to amend the pleadings prior to commencement of trial.

42. As such, the issue of whether the respondent was, or was not, aware of the facts which were now being sought to be incorporated by the amendment, when the suit was filed, as also the reason as to why, if the respondent was so aware, the said facts were originally not pleaded, are of no relevance as the amendment was sought prior to commencement of trial.

43. Where the amendment is sought prior to commencement of trial, the proviso to Order VI Rule 17 does not apply. The case is then governed by the main part of Order VI Rule 17, which mandates – as is apparent by the use of the word “shall” – on the court to allow all such amendments as are necessary for the court to adjudicate on the real nature of the controversy between the parties.

44. It cannot be said the amendments that the respondent sought to incorporate in the plaint were not necessary for the court to adjudicate on the real nature of the controversy between the parties.

45. The learned Civil Judge was, therefore, bound by law to allow the said amendments. In doing so, she has merely conformed to the discipline of Order VI Rule 17 of the CPC. The impugned order is, therefore, completely in accordance with the provisions of the CPC and does not call for any interference by this Court.

46. The petition is, therefore, dismissed, with no order as to costs.

C. HARI SHANKAR, J.

NOVEMBER 10, 2022