At, High Court of Karnataka Circuit Bench OF Kalaburagi
By, THE HONOURABLE MR. JUSTICE B. VEERAPPA
For the Petitioner: Ravi B. Patil, Advocate. For the Respondent: R.V. Nadagouda, AAG.
(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records in Misc.No.25/2009 on the file of Principal District Judge at Bidar and a writ of certiorari any other writ or direction to quash the order impugned dated 21.08.2015 passed on I.A.No.XI filed under Order VI Rule 17 CPC in Misc.No.25/2009 as at Annexure-E passed by the Principal District Judge at Bidar.)
1. The petitioner filed the present writ petition for writ of certiorari to quash the impugned order dated 21.08.2015 passed on I.A.No.XI filed under order VI Rule 17 of CPC by allowing the writ petition.
I. Facts of the Case:
02. The present respondent who is the petitioner in Misc.No.25/2009 filed a petition under Section 31 (1) (a) and (aa) and Section 32 of State Financial Corporation’s Act 1951 for recovery of Rs.18,33,36,036/- with future interest at 22.50% p.a. on Rs.16,90,93,743/- and interest at the rate of 21% p.a. on Rs.01,42,42,293/- from respondent No.2, 3, 4, 5 and 6(a) jointly and severally contending that 1st respondent has borrowed the money from petitioner and other respondents have stood as guarantors inspite of the repeated requests they have not paid the borrowed amount etc.. The other respondents have not filed any written statement, except respondent No.2 i.e., present petitioner denying the liability. When the matter was posted for arguments at the stage present respondent filed an application under Order VI Rule 17 R/w. Section 151 of CPC for amendment of their claim at Rs.16,57,00,682/- and interest at the rate of 21% p.a. and contended that the originally the corporation authority has filed a suit for recovery of Rs.18,33,36,035/-. He further contended that at the time of filing of the petition, a wrong statement of account was prepared prior to the appropriation of the amount had been provided to the advocate for filing and based on that the Misc. Petition was came to be filed claiming larger amount that was due from the respondents. This mistake was noticed recently and a revised statement of account was already available in the file traced. According to the revised statement of accounts, the above position of appropriation is reflected. The amended is only the figures as brought out in the amendment application. The cause of action does not change and the evidenc
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already tendered to the extent of revised figures only requires to be considered. Amendment now sought is no way changes the character of the Misc. Petition or in no way affects the respondent. In fact there is reduction in their liability consequent to the appropriation that has been reflected in the statement of accounts. Therefore sought for amendment.03. Per contra respondent No.2 only filed objections contending that application is filed at belated stage and cannot be allowed. Further contended that proposed amendment application filed in the month of August-2015 and claim made in the proposed amendment is completely time barred. Therefore, any alternation or prayer which is time barred cannot be incorporated by way of amendment. Therefore, sought to dismiss the application. The trial Court after considering the entire material on record by the impugned order dated 21.08.2015 has allowed the application for amendment. Hence, the present writ petition is filed.II. Rival contentions of the learned counsel for the parties:04. I have heard the learned counsels for the parties to the lis.05. Sri.R.B.Patil, learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court, allowing the application for amendment is erroneous and contrary to the material on record. Further contended that when amendment sought for at the belated stage of proceedings, the trial Court ought to have rejected the application, as the amendment sought is to modify the entire claim of the respondent-Corporation and the main defense of the petitioner that the statement of account maintained by the respondent corporation is without any basis and there is no amount payable by the respondent No.2. Therefore, the amendment of the pleading at the later stage of the proceeding is contrary to the proviso of Order VI Rule 17 CPC which require to be rejected the application. He further contended that PW.2 has specifically admitted the loopholes in the statement of account produced at Ex.P.16 and has not chosen to make any application seeking to correct the said defect. However, only during the final argument when the said defects were relied to disprove the claim of the respondent-Corporation, the application is preferred seeking to amend the petition. Hence, the application is filed with a malafide intention to fill up the lacuna created under the evidence by producing the revised statement of objection. Therefore, Sri.R.V.Patil, learned counsel for the petitioner sought to quash the impugned order passed by the trial Court by allowing the writ petition.06. Per contra Sri.R.V.Nadagouda, learned counsel for the respondent sought justify the impugned order passed by the trial court and strongly contended that the application filed for amendment, no way to prejudice the case of the 2nd respondent nor changes the character of the suit. What is sought is only reduction of the amount claim in the main petition. He further contended that at any stage of the proceedings, the amendment can be allowed unless the same is alter the nature of the original suit. In support of his contention, the learned counsel for the respondent relied judgment of Hon’ble Supreme Court in the case of Mount Mary Enterprises V/s Jivratna Medi Treat Private Limited, reported in (2015) 4 SCC 182 in the case of State of Madhya Pradesh V/s Union of India and another. (2011) 12 SCC 228. Therefore he sought to dismiss the petition.III. The point for determination and discussion:07. In view of the rival contentions of the learned counsel for the parties to the lis, the only point that arises for consideration in the present writ petition is:“Whether trial court is justified in allowing the application for amendment and U/o 6 Rule 17 of Civil Procedure Code in the facts and circumstances of the present case?”08. Having heard learned counsel for the parties to the lis. It is undisputed fact that the present respondent filed the originally Miscellaneous No.25/2009 under the provisions of Section 31 (1) (a) & (aa) and Section 32 of the State Financial Corporation Act, for recovery of Rs.18,33,36,035/- after completion of evidence. The respondent who is the petitioner before the trial court has restricted his claim at Rs.15,51,73,823/- assigning the reasons on what circumstances of the application for amendment is filed.09. The trial court considering the entire material on record, recorded a specific finding that now the petitioner - corporation wants to deleted para Nos.23 and 24 in the main petition and to delete the column No.1(a) in the prayer column and substitute the new prayer stated in the IA No.11. As per the amendment the prayer to be substituted in case application is allowed then, the amount to be recovered Rs.15,51,73,823/-. Even though there are two statement of accounts, the petitioner has filed Ex.P16 and another is revised statement of account stated in the IA No.XIII. But, the amendment sought for does not alter the nature or characteristic of the petition. If the 2nd respondent feels that the calculation made in the revised statement is wrong then, 2nd respondent has every liberty to demonstrate how the calculation is wrong. But considering the main petitions and the applications, the entire petition is for recovery of amount by enforcing liability of the respondent as per guarantee deeds executed by them. Therefore if the application is allowed that does not mean that, defence set out by the 2nd respondent in the course of cross – examination is taken away. If the application is allowed the 2nd respondent has every liberty to cross-examine the witnesses by seeking recalling of the witnesses and also to adduce fresh evidence in support of the 2nd respondent. Therefore the trial court of the opinion, application has to be allowed.10. It is undisputed fact that the present respondent filed Miscellaneous Petition, by way of amendment restricting his claim reducing from Rs.18,33,36,036/- to 15,51,73,823/-, merely reduction of his claim amount in the main petition will not take away by the characteristic of the petition, or nature of the suit and no way prejudice to the case of the 2nd respondent / present petitioner. In fact it was a reduction, liability more then Rs.2,00,00,000/- (Two Crores) approximately and he should have filed present writ petition.IV. Dictums of the Hon’ble Apex Court:11. The Hon’ble Supreme Court while considering the provisions Order 6 Rule 17 and proviso amendment of pleadings in the State of Madhya Pradesh V/s Union of India and another reported in (2011) 12 SCC 268 held as under:6. In order to consider the claim of the plaintiff and the opposition of the defendants, it is desirable to refer the relevant provisions. Order 6 Rule 17 of the Code of Civil Procedure, 1908 (in short “the Code”) enables the parties to make amendment of the plaint which reads as under:“17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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.”7. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier.8. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.9. Inasmuch as the plaintiff State of Madhya Pradesh has approached this Court invoking the original jurisdiction under Article 131 of the Constitution of India, the Rules framed by this Court i.e. the Supreme Court Rules, 1966 (in short “the Rules”) have to be applied to the case on hand. Order 26 speaks about “pleadings generally”. Among various Rules, we are concerned about Rule 8 which reads as under:“8. The Court may at any stage of the proceedings allow either party to amend his pleadings in such manner and on such terms as may be just, but only such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”The above provision, which is similar to Order 6 Rule 17 of the Code prescribes that at any stage of the proceedings, the Court may allow either party to amend his pleadings. However, it must be established that the proposed amendment is necessary for the purpose of determining the real question in controversy between the parties.10. This Court, while considering Order 6 Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:(i) Surender Kumar Sharma v. Makhan Singh, at para 5: (SCC p.627)“5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.”(ii) North Eastern Railway Admn. v. Bhagwan Das, at para 16: (SCC p. 517)“16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda patil which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.”(iii) Usha Devi v. Rijwan Ahamd, at para SCC p.722)“13. Mr. Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05)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 on the court to allow an amendment of the written statement at any stage of the proceedings.’ “(iv) Rajesh Kumar Aggarwal v. K.K. Modi, at paras 15 & 16: (SCC pp.392-93)“15. The object of the rule is that the 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.“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.”(v) Revajeetu Builders and Developers v. Narayanaswamy and Sons, at para 63: (SCC p.102)“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 bonafide or mala fide;(3) the amendment should not cause such prejudice to the order 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.”The above principles make it clear that courts have ample power to allow the application for amendment of the plaint. However, they must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.12. Admittedly in the present case, mere allowing the application for amendment filed by the respondent for reduction of the claim amount will not take away right of the 2nd respondent at any stage of the proceeding, the amendment can be allowed if it is not alter the nature of the suit. Admittedly in the present case, the proposed amendment will not alter nature of the suit as rightly allowed at the trial court.13. The Hon’ble Supreme Court while considering the provisions of Order 6 Rule 17 R/w Section 151 of CPC, in the case of Mount Mary Enterprises V/s Jivratna Medi Treat Private Limited, reported in (2015) 4 SCC 182 at para 7 to 13 held as under:7. “In our opinion, as per the provisions of Order 6 Rule 17 of the Civil procedure code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs.13,50,000/but as the market value of the property was actually Rs.1,20,00,000/-, the appellant – plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint”.8. It is also pertinent to note that the defendant had made an averment in Para 30 of the written statement filed in Suit No.1955 of 2010 that the plaintiff had undervalued the subject-matter of the suit. It had been further submitted in the written statement that the market value of the suit property was much higher than Rs.14 lakhs. The defendnat had paid Rs.13.5 lakhs for the said premises in the year 2002 when the said premises had been occupied by a tenant bank. Even according to the defendant, vaue of the suit property had been undervalued by the plaintiff in the plaint. If in pursuance of the averment made in the written statement the plaintiff wanted to amend the plaint so as to incorporate correct market value of the suit property, the defendant could not have objected to the amendment application whereby the plaintiff wanted to incorporate correct value of the suit property in the plaint by way of an amendment. The other contention that the valuation had already been settled cannot be also be appreciated since the High Court has held that the said issue was yet to be decided by the trial court.9. The main reason assigned by the trial court for rejection of the amendment application was that upon enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected.10. With regard to the amendment of the plaint, the following observation has been made by this Court in North Eastern Railway Admn. v. Bhagwan Das: (SCC p.517, para 16)“16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the revevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the filed, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of nto working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.”11. In our opinion, on the basis of the aforestated legal position, the amendment application made by the plaintiff should have been granted, especially in view of the fact that it was admitted by the plaintiff that the suit property was initially undervalued in the plaint and by virtue of the amendment application, the plaintiff wanted to correct the error and wanted to place correct market value of the suit property in the plaint.12. For the aforestated reasons, we are of the view that the amendment application should not have been rejected by the trial court and the High Court should not have confirmed the order of rejection. We, therefore, set aside the impugned judgment delivered by the High Court and the order dated 22.11.2013 of the trial court, whereby the amendment application had been rejected.13. We allow the appeal and direct the trial court to permit the appellant-plaintiff to amend the plaint as prayed for in the amendment application so as to change valuation of the suit property. There is no order as to costs.V. Conclusion:14. For the reasons stated above, the point raised in the present writ petition has to be answered in the affirmative holding that the learned Principal District is justified in allowing the application for amendment and the same is in accordance with law. The petitioner has not made out any ground to quash the impugned order passed by the trial court by exercising the powers of this court under the Article 227 of the Constitution of India.Accordingly writ petition is dismissed.