The Allahabad High Court has dismissed a petition observing that when an amendment application is filed at a belated stage, it is required to be seen as to whether it has been filed with bonafide intention or only to delay proceedings and if it is the latter case, no interference is required.
A single-judge bench of Justice Neeraj Tiwari passed this order while hearing a petition filed by Braj Bhushan Lal Awasthi.
The petition has been filed seeking following reliefs :-
“(I) Set aside the order dated 01.12.2021 passed by the 3rd Additional District Judge, Kanpur Dehat in Civil Revision No 25/2013 (Braj Bhushan Vs. Smt. Urmila Devi and others) as well as order dated 11.07.2013 passed by Additional Civil Judge (Senior Division), Kanpur Dehat.
(II) Direct the court below to allow the amendment application (paper No 289-Ka) dated 08.04.2013 filed by the petitioner before the Trial Court.”
Counsel for petitioner submitted that plaintiff-petitioner has filed original Suit No. 2 of 1993 along with interim injunction application in 1993 for cancellation of sale deed, which was rejected order dated 08.02.1994.
Against the said rejection order, plaintiff-petitioner preferred appeal. During the pendency of appeal, plaintiff petitioner has filed amendment application for amending the plaint. The said appeal as well as amendment application was rejected. Against both the orders, plaintiff-petitioner has preferred Writ Petition before the Court, which was dismissed vide order dated 17.09.2010. However, liberty was given to the plaintiff-petitioner to file an amendment application before the Court below.
It is next submitted that in compliance of order dated 17.09.2010, plaintiff-petitioner has filed an amendment application in Original Suit under Order VI Rule 17 read with Section 151 CPC on 08.04.2013. In the amendment application, he has clarified the facts and also brings on record certain new facts, which were not in his knowledge at the time of filing of the complaint. The opposing party has also filed an objection and trial Court vide order dated 11.07.2013 has dismissed the amendment application on the ground of delay.
Aggrieved by the order dated 11.07.2013, plaintiff-petitioner has preferred Civil Revision before the District Judge on 15.02.2014, which was also dismissed order dated 01.12.2021 without considering the facts of the case. Hence the present petition.
The counsel for the petitioner said that the plaintiff petitioner has challenged the orders dated 01.12.2021 as well as 11.07.2013 basically on the ground that under Order VI Rule 17 of CPC, amendment application may be allowed at any stage of proceedings and the same cannot be rejected only on the ground of laches. Such dismissal order precluded the plaintiff-petitioner from justice.
The counsel for the petitioner further said that it is undisputed that original suit was filed in 1993 and provisions of CPC i.e Order VI Rule 17 was amended vide Civil Procedure (Amendment) Act, 2002 which came into force w.e.f 01.07.2002. Rule 16(1)(b) of Act, 2002 provides that provisions of rules, 5, 15, 17 & 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code or Civil Procedure (Amendment) Act, 1999 and section 7 of the Act.
In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of State Bank of Hyderabad vs Town Municipal Council; 2007 (1) SCC 765. Sri Kirti Kumar Nirkhi, counsel for opposite party has vehemently opposed the submissions of the counsel for petitioner and submitted that first of all, amendment application was rejected on the ground that amendment application so filed was not in accordance with Order VI Rule 17 of CPC, which provides that amendment can only be allowed prior to commencement of trial and further, after due diligence, if plaintiff-petitioner could not produce relevant facts.
It is next submitted that the intention of the Court was very much clear that the suit has to be decided at the earliest, but without any reason, after delay of more than three years, petitioner-plaintiff has filed amendment application again. The Court below has rejected the same with clear cut finding of fact that evidence in the said suit is closed and matter is listed for argument. Further, in the amendment application, it is nowhere mentioned that amendment is required in the plaintiff, relevant facts are not known to the plaintiff-petitioner earlier. Therefore, Court below has rightly rejected the amendment application along with finding of fact not denied by the plaintiff-petitioner.
It is next submitted that not only this, earlier the Court order dated 17.09.2010 passed in writ petition has directed the Court below to decide the suit within one year. The said order was never produced before the Court below.
The Court observed,
Issue before the Court is as to whether in light of Order VI Rule, 17 of CPC, up to what stage, amendment application may be allowed and what would be the consequences of delay in filing of amendment application.
So far as facts of the case are concerned, it is undisputed that after rejection of Original Suit, petitioner plaintiff has filed appeal and during the pendency of appeal, he has filed amendment application for amending the plaint, which was also rejected. Against both the orders, petitioner-plaintiff has preferred Writ Petition of 1998 before the Court, which was dismissed vide order dated 17.09.2010 with liberty to the plaintiff-petitioner to file amendment application before the Court below. It is also undisputed that while dismissing the writ petition, the Court has also directed to decide the appeal expeditiously and dispose of Original Suit at the earliest. Instead of filing amendment application forthwith, petitioner-plaintiff has filed amendment application on 08.04.2013 i.e almost about three years after closing of evidence and when the case was listed for final argument. Now the question is as to whether such amendment applications may be entertained by the Court below or not. There is no doubt on this point that the Apex Court has taken a consistent view that amendment application may be allowed at the second appellate stage, Court is required to take liberal view and further amendment application would not be rejected on the ground of delay, in case delay is bonafide without any ill intention.
There is also no dispute on this point that as per Act, 2002, amended provisions would not be applicable to the pending pleadings, but it is required to be seen as to whether the purpose of filing of amendment application is bonafide or only to delay the proceedings.
Now, the issue before the Court is to decide under which circumstances, amendment application may be allowed even if it has been filed at a very belated stage.
The Court noted,
In the case, it is undisputed that liberty was given to petitioner-plaintiff to file a fresh amendment application coupled with this fact that there was also direction of the Court to decide the appeal as well as suit at the earliest.
Not only this, in writ petition, the Court order dated 17.09.2010 had directed to decide the suit within one year, which is not disclosed. Apart from that, petitioner-plaintiff himself has filed a Civil Misc writ petition, which was disposed of vide order dated 08.03.2013 with direction to the Court below to decide the suit within six months, which is also not disclosed in the petition. In compliance with the order of the High Court, Court below has proceeded to decide the suit and accordingly, evidence of both the parties were closed and matter was listed for final argument. At this stage, petitioner-plaintiff has preferred amendment application, which was rejected vide impugned order dated 01.12.2021.
The Court is of the view that once the Court has granted liberty to file second amendment application, there is no occasion for the petitioner-plaintiff to wait for three years when the suit was listed for final hearing and also, in the meantime, he himself has filed Civil Misc writ petition before the Court for early disposal of suit.
“In fact, it is nothing but an attempt to linger on the proceeding by filing such amendment application, therefore, Court below has taken right view that it is nothing but an attempt to raise the complexity in the matter and allowing the amendment application would change the nature of case based on those facts which were very well in the knowledge of petitioner-plaintiff since the date of filing of suit.
Though, the judgments so cited by counsel for petitioner may favour petitioner-plaintiff in case it was filed with bonafide intention to meet the end of justice, but in the case, those judgments would not come into the rescue of petitioner for the reasons that intention of petitioner-plaintiff is not fair in filing amendment application. On one hand, petitioner-plaintiff himself has filed writ petitions for early disposal of suit and on the other hand, he has taken the chance to linger on the proceeding by filing amendment application at a very belated stage.
Therefore, while dealing such situation where amendment application is filed at a very belated stage, it is required to be seen as to whether it has been filed with clean hand, bonafide intention or only with intention to delay the proceedings and if the second one is found, no interference is required as the case is.
Under such facts of the case, the Court is not impressed to interfere with the orders dated 01.12.2021 and 11.07.2013,” the Court further observed while dismissing the petition.