Rajesh Kumar Yadav & Anr. v. Ganesh Singh Yadav

10. I have heard Mr. Swastik Singh, learned Counsel for the petitioner and have perused the material on record.

11. The learned ASCJ is correct in his observation that the only ground urged in the amendment application filed by the petitioners, for not urging, earlier, the pleas which they now sought to urge by way of amendment, was that there was an error on the part of the Counsel who drafted the written statement.

12. Order VI Rule 17 of the CPC reads as under: ―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.‖

13. The proviso to Order VI Rule 17 is clear and categorical. It engrafts a statutory proscription to allowing amendments after trial has commenced in the suit 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. In order to escape the rigour of the proviso, therefore, the party seeking to amend the plaint or the written statement would have to establish that (i) due diligence was exercised by it and (ii) despite exercise of due diligence, the party could not have raised the matter before commencement of trial. These are twin considerations, which are cumulatively required to be satisfied where amendment of pleadings is sought after trial commences.

14. In the present case, the application seeking amendment does not even satisfy the first condition. A plea of due diligence is antithetical to a plea of error or negligence on the part of the Counsel. They cannot cohabit. One destroys the other. The submission, of the petitioners, in their amendment application, that the pleas being sought to be introduced by amendment were omitted in the written statement owing to negligence of the Counsel amounts to an explicit admission that there was want of due diligence. Once such an admission was made, no occasion arose to examine whether the second ingredient, requires satisfaction to escape the rigor of the proviso to Order VI Rule 17 of the CPC, was or was not pleaded. If there was want of due diligence at the time when the pleadings were originally drafted and filed, ipso facto, the proviso to Order VI Rule 17 would kick in, and the amendments would be barred.

15. Mr. Swastik Singh has invited my attention to three judicial authorities. They are the judgment of the Supreme Court in Varun Pahwa v. Renu Chaudhary[1], and the judgment of the High Court of Uttarakhand in Raghubar Datt Maulekhi v. State of Uttarakhand[2] and of the High Court of Telangana and Andhra Pradesh in J. Yadagiri Reddy v. J. Hemalatha[3].

MANU/UC/0512/2018 MANU/AP/0060/2016

16. The decision of the Supreme Court in Varun Pahwa[1] is clearly distinguishable. The amendment that was sought to be incorporated in that case was in the title of the suit. What was sought to be contended was that, instead of mentioning the name of the company as the plaintiff, the name of one of its directors had been mentioned. This, it was sought to be submitted, was owing to negligence of Counsel.

17. The Supreme Court held that such an inadvertent error could not be refused to be corrected, when it was attributable to negligence of Counsel. For this purpose, the Supreme Court relied on the well established principle that rules of procedure are merely hand maiden to dispensation of substantial justice.

18. The present case cannot be analgised to Varun Pahwa[1]. The amendments that the petitioners sought to incorporate, in the written statement, by way of amendments were considerable and amounted to raising substantial pleas of fact and law much beyond the pleas which was contained in the written statement. The amendment could not be compared, in any manner of speaking, with an amendment in the cause title, as was the situation which obtained before the Supreme Court in Varun Pahwa[1]. Substantive amendments, such as those which the petitioners sought to incorporate in the written statement, when sought to be made after trial commences, had necessarily to pass the test of the proviso to Order VI Rule 17. They cannot be allowed at the drop of a hat, merely by accepting a plea of negligence of Counsel.

19. In Raghubar Dutt Maulekhi[2], though the bar of the proviso to Order VI Rule 17 of the CPC was pressed into service by the respondents, the judgment of the High Court does not indicate any clear finding on the said plea. The High Court has proceeded on the general principle that amendment of pleadings ought, in normal course, to be allowed and a lenient view adopted in that regard. As such, this judgment in my view cannot be pressed into service as an expression of judicial opinion on the applicability of the proviso to Order VI Rule 17 of the CPC.

20. In J. Yadagiri Reddy[3], the amendment that was sought was only in the relief claimed in the suit. No amendment to the substantive paragraphs in the suit, whether of facts or of law was sought. Para 3 of the decision in J. Yadagiri Reddy[3] reads thus: “3. The case of the plaintiff is that Jambula Kasi Reddy and Jambula Venkat Reddy are joint owners of land of an extent of Ac.51.16 gts situated in several survey numbers at Dasarlapally Village, Kandukur Mandal, Ranga Reddy District. They have partitioned the said property in equal measure. Thus, each got Ac.25.28 gts. Sri. Jambula Kasi Reddy was having 4 sons. Sri. J. Anjan Reddy, the father of the plaintiff, J. Yadagiri Reddy, the defendant No. 1, J. Surender Reddy, the defendant No. 2 and J. Ganesh Reddy, the defendant No. 3 in the suit. After the death of Jambula Kasi Reddy, all his 4 sons have succeeded to the above lands. The father of the plaintiff and the defendant Nos. 1 to 3 have executed a registered gift deed vide document No. 787 of 1992 dated 04.05.1992 in favour of the 5th defendant, their sister, in respect of land of an extent of Ac.1.34 gts in Sy. NO. 30 part, to an extent of Ac.1.20 gts in Sy. No. 31 part, to an extent of Ac.1.26 gts in Sy. No. 59 part. Thus, making a total extent of Ac.5.00 gts out of the total extent of Ac.25.28 gts, which they have succeeded to upon the death of their father, Jambula Kasi Reddy. It is the case of the plaintiff that the 2 sale deeds in question have been executed on 12.12.2003 with a view to defeat the rights and interests of the plaintiff petitioner. In those set of circumstances, the plaintiff instituted suit O.S. No. 1383 of 2005 seeking partition of the joint family properties and for allotment of one share to the plaintiff and for delivery of such a share by metes and bounds to her. She also sought for cancellation of the 2 sale deeds executed on 12.12.2003. ……. Defendant Nos. 4 and 6, in whose favour they stand, have been impleaded for that very reason to the suit. But however, she has realized that the cancellation of sale deeds is not the appropriate relief that can be sought for by the plaintiff as she is not one of the parties to the aforementioned 2 sale deeds and on the other hand, she ought to have claimed the relief of declaration that such sale deeds are null and void and not binding on the plaintiff. Hence, the I.A. No. 1295 of 2014 has been filed, seeking declaration, by way of amendment.” (Emphasis supplied)

21. It is clear from a reading of the afore-extracted passage of J. Yadagiri Reddy[3] that the amendment that was sought was to introduce a prayer of declaration, which was not contained in the original suit. The judgment does not indicate that, to substantiate this prayer, any substantive amendments, in the body of the suit, were proposed.

22. The justification for the decision of the High Court in holding that the prayer for amendment ought to have been allowed is to be found in para 12 of the report which reads thus: “12. The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation.”

23. Again, to compare the decision in J. Yadagiri Reddy[3] with the present case would be to compare chalk with cheese. I have already set out, in extenso, the amendments that the application of the petitioner under Order VI Rule 17 sought to incorporate in the written statement filed by the petitioner. They are substantial amendments both of facts and law. They cannot in any manner be compared with technical amendments in the cause title or the introduction of a prayer for declaration which was inadvertently omitted in the suit.

24. There is no absolute embargo on introducing, by way of amendment, pleas of fact and law such as those which the petitioner desired to introduce into the written statement. No such absolute bar exists even after trial has commenced. The only requirement, where the amendment is sought after commencement of trial is that the applicant seeking amendment should satisfy the Court that, despite due diligence, he could not have raised the matter before commencement of trial. If the applicant seeking amendment establishes that these twin conditions stand satisfied, he is certainly entitled to amend the pleadings as sought.

25. The learned ASCJ however, holds, in the present case, that the only plea advanced to justify not raising the pleas that were being sought to be introduced by amendment in the present case was error on the part of the Counsel who drafted the written statement. As I have already observed hereinabove, the very admission of error constitutes admission of want of due diligence. That by itself is sufficient to justify rejection of the prayer for amendment, as trial had already commenced.

26. Suffice it, therefore, to state that the learned ADJ cannot be said to have erred, on facts or in law, in holding that no sufficient justification, as envisaged by the proviso to Order VI Rule 17 of the CPC, had been advanced by the petitioner for his plea to amend the suit.

27. The present petition has been preferred under Article 227 of the Constitution of India. Article 227 confers, on the High Court, a very limited jurisdiction. This Court cannot, exercising its jurisdiction under Article 227 of the Constitution of India, substitute its subjective satisfaction for the subjective satisfaction of the court below. Where the Court below has erred in discharging its function in a manner as would call for supervisory correction, the High Court can interfere under Article 227. Else, it has to hold its hands.

28. Regarding the restricted scope of the jurisdiction that Article 227 of the Constitution of India vests in the High Court, one may refer to the decisions in Estralla Rubber v. Dass Estate (P) Ltd.4, Garment Craft v. Prakash Chand Goel[5], Puri Investments v. Young Friends and Co.6, Sadhana Lodh v. National Insurance Co.[7] and Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd.[8] The relevant passages from these judgments may also, therefore, be reproduced thus:

2022 SCC OnLine SC 620 Estralla Rubber[6]: ―7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand[9] in para 12 has stated that the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh v. Amarnath10. This Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarte11 has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order.‖ ***** Garment Craft[7] “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft12 ] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court AIR 1972 SC 1598 AIR 1954 SC 215 AIR 1975 SC 1297 2019 SCC OnLine Del 11943 or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar13 ] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd[6] has observed: (SCC pp. 101-102, para 6) ―6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.‖ ***** Puri Investments[8] ―14. In the case before us, occupation of a portion of the subject-premises by the three doctors stands admitted. What has been argued by the learned counsel for the appellant is that once the Tribunal had arrived at a finding on fact based on the principles of law, which have been enunciated by this Court, and reflected in the aforesaid passages quoted from the three authorities, the interference by the High Court under Article 227 of the Constitution of India was unwarranted. To persuade us to sustain the High Court's order, learned counsel appearing for the respondents has emphasized that full control over the premises was never ceded to the medical practitioners and the entry and exit to the premises in question remained under exclusive control of the respondent(s)-tenant. This is the main defence of the tenant. We have considered the submissions of the respective counsel and also gone through the decisions of the fact-finding fora and also that of the High Court. At this stage, we cannot revisit the factual aspects of the dispute. Nor can we re-appreciate evidence to assess the quality thereof, which has been considered by the two fact-finding fora. The view of the forum of first instance was reversed by the Appellate Tribunal. The High Court was conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are: —

(i) Erroneous on account of non-consideration of material evidence, or

(ii) Being conclusions which are contrary to the evidence, or

(iii) Based on inferences that are impermissible in law.

15. We are in agreement with the High Court's enunciation of the principles of law on scope of interference by the supervisory Court on decisions of the fact-finding forum. But having gone through the decisions of the two stages of fact-finding by the statutory fora, we are of the view that there was overstepping of this boundary by the supervisory Court. In its exercise of scrutinizing the evidence to find out if any of the three aforesaid conditions were breached, there was re-appreciation of evidence itself by the supervisory Court.

16. In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum. ……‖ ***** Sadhana Lodh[9] “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.” Ibrat Faizan10 ―28. The scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by this Court in the case of Estralla Rubber v. Dass Estate (P) Ltd[6], which has been consistently followed by this Court (see the recent decision of this Court in the case of Garment Craft v. Prakash Chand Goel[7] ). Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution. Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article 227 of the Constitution of India.‖

29. Within the narrow confines of the jurisdiction vested in this Court by Article 227 of the Constitution of India, it is clear that no such error can be said to have been committed by the learned ASCJ, while passing the impugned order, as calls for supervisory correction.

30. Resultantly, this petition is dismissed in limine.

C.HARI SHANKAR, J AUGUST 4, 2022