Ram Das Vs Mukesh Chandra And Ors.

"20. In Revajeetu Builders & Developers vs. Narayanaswamy & Sons, (2009) 10 SCC 84, this Court once again considered the scope of amendment of pleadings. In paragraph 63, it concluded as follows:

"Factors to be taken into consideration while dealing with applications for amendments

63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(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."

"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."

"9. Considering the objects of both the provisions, i.e., Section 10 and Order 37 wider interpretation of the word ''trial'' is not called for. We are of the opinion that the word ''trial'' in section 10, in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the ''trial'' really begins after the Court or the Judge grants leave to the defendant to contest the suit. Therefore, the Court or the Judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if(b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted."

"3. I am also of the view that the learned Munsiff is not correct in his view as to the point of time when trial commences for the purposes of the proviso to Order VI Rule 17 as amended by the Amendment Act of 2002. The expression "trial" is of very wide import. In its widest sense, trial will include all proceedings right from the stage of institution of a plaint in a civil case to the stage of its final determination by a judgment and decree of the Court. In a slightly narrower sense, trial connotes, as the learned Munsiff observes, the stage from the formulation of issues till the final judgment. In a still narrower sense which in my opinion is the common parlance idea of trial it will mean only the stage of actual adducal of evidence - documentary or oral. The Supreme Court, held in the context of summary suits under Order XXXVII as well as Section 10 of Civil Procedure Code that the meaning to be given to the expression "trial" will depend upon the nature and object of the provision and the context in which it is used and went on to hold that having regard to the scheme of the summary procedure provided by Order XXXVII, a stage of determination of the matter in issue arises only after the defendants obtain leave and therefore trial in that context will really begin only after the leave is granted to the defendants.

4. In Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd. ((1998) 5 SCC 69), their Lordships of the Supreme Court were only following an earlier decision by a Bench of 4 Judges of the Supreme Court in Harish Chandra Baipai and Anr. v. Triloki Singh and Anr. (AIR 1957 SC 444) wherein it was held that in a limited sense ''trial'' means only the final hearing of the petition consisting of examination of witnesses, filing of documents and addressing of arguments. But that expression can connote the entire proceedings before an Election Tribunal from the time when the election petition was transferred to it under Section 86 of the Representation of People Act till it pronounces the award. Their Lordships were interpreting the word ''trial'' of election petitions in the context of 86(4) of the Representation of People Act as well as Section 92 of the C.P.C. A Division Bench of the Allahabad High Court held interpreting the word ''trial'' under Section 540 Cr. P.C. that the Legislature has assigned different meanings to the expression ''trial'' in various provisions of the Code and that the meaning of the term has to be in the context and intendment of each individual provision [Ran Jeet and Ors. v. The State (AIR 1958 All. 439)].

5. A closer scrutiny of Section 7 of the Amendment Act of 2002 under which Rule 17 of Order XI is re-introduced after its omission under the Amendment Act of 1999 will reveal that Rule 17 subject to newly introduced proviso has been brought back in its original form. Thus under Rule 17 as it stands now and as it stood before its omission by Act 46 of 1999 at any stage of the proceedings all amendments necessary for the purpose of determining the real question in controversy can be allowed. The proviso only introduces a check for grant of amendment applications after the commencement of trial and even in the proviso the legislative intendment of granting necessary amendments at any stage is discernible since the Court can allow amendment even after the commencement of the trial to a party who is diligent. Having regard to the easily discernible intendment of the Legislature behind the reintroduction of Order VI, Rule 17, I have no difficulty to hold that the expression ''trial'' has been employed in the proviso to Rule 17 only in what the Supreme Court described as the narrow sense of examination of witnesses, production of documents in evidence and all stage subsequent to the same. Under the special list system which is being followed by our subordinate courts for trial of civil cases what is done is that issues are settled under Order XIV after a hearing and thereafter opportunity is given for the parties to take what is commonly described as pre-trial steps and then only suits are special listed for trial. Trial, therefore, in the context of Order VI, Rule 17 means the commencement of actual trial or adducal of evidence. In my view, the Legislature wanted to have a check on the grant of the amendment applications after commencement of the trial since the same is likely to cause prejudice to parties who had already adduced evidence and may necessitates recalling of witnesses who have already been examined.

The result of the above discussion is that the revision succeeds. The impugned order is set aside and the amendment application (I.A. 12/03) is allowed on condition that the revision petitioner pays a sum of Rs. 500/- to the respondents through their counsel appearing in this Court within two weeks from today. If the payment is not made as aforesaid, the impugned order will stand confirmed and the C.R.P. will stand dismissed.

Revision allowed."

"14. The question, therefore, is whether the plaintiff had established his title to the suit property. The plaintiff, though somewhat belatedly, attempted to amend the plaint to make his claim more precise so as to enable the court to adjudicate upon it more satisfactorily. We see force in the contention of learned senior counsel for the appellant that the trial court ought to have allowed the amendment so as to enable it to decide the dispute in a more satisfactory manner. The appellate court, it appears to us, was also not justified in harping upon the so-called absence of bona fides on the part of the plaintiff in approaching the court. What was called for, was an independent appraisal of the various documents produced by the plaintiff in the light of the pleadings and the oral evidence available, to come to a conclusion whether the plaintiff had established his title or not. In that context, the appellate court ought to have seen that the trial court was in error in refusing the amendment of the plaint which would have enabled the court to render a decision in a more satisfactory manner.

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17. We find that the trial court and the appellate court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial court within three months from this date as per the practice followed in the trial court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment."

"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."