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Patna High Court

Ramchandra YadavversusAnatar Devi

Decided
Disposal
DISPOSED

Holding

The amendment petition filed at the belated stage of the suit was not allowed, and the lower court's order dismissing it was affirmed.

Summary

The petitioners, a group of Yadav family members, filed an amendment petition in a suit (P.S. Case No.09 of 2005) after both parties had closed their evidence. The Sub Judge dismissed the amendment, holding that it was filed at a belated stage. The petitioners appealed, arguing that the amendment was necessary to determine the real question in controversy and relied on the Supreme Court’s decision in Life Insurance Corporation of India v. Sanjeev Builders (AIR 2022 SC 4256). The respondents contended that the amendment was a tactic to delay disposal and should be rejected. The Patna High Court, after considering the Supreme Court principles on amendment of pleadings, concluded that the amendment was filed at the final stage and therefore could not be allowed. Consequently, the court dismissed the petitioners’ application, affirming the lower court’s order.

Issues considered

  • Whether an amendment to pleadings filed after the evidence is closed and at the final stage of the suit should be allowed.
  • Whether the proposed amendment changes the nature of the suit or introduces a new cause of action.
  • Whether allowing the amendment would cause prejudice or injustice to the opposite party.
  • Applicability of Order II Rule 2 and Order VI Rule 17 of the CPC to the present amendment petition.

Legislation cited

Subjects

  • amendment of pleadings
  • Civil Procedure Code
  • Order II Rule 2
  • Order VI Rule 17
  • belated amendment
  • prejudice
  • real question in controversy
  • limitation

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CIVIL MISCELLANEOUS JURISDICTION No.1991 of 2017
                ======================================================
           1.1. Phuliya Devi, wife of Late Ramchandra Yadav.
           1.2. Kari Devi, W/o Late Ramchandra Yadav.
           1.3. Runa Devi.
           1.4. Poonam Devi
                      Both daughters of Late Ramchandra Yadav.
           1.5. Sitesh Kumar Yadav.
           1.6. Nitesh Kumar Yadav
                        Both sons of late Ramchandra Yadav
                        all resident of village - Kalna, Ward No. 5, P.O. and P.S. Basopatti,
                District- Madhubani.
           2.    Maheshwar Yadav
           3.    Ram Balak Yadav.
                        Both 2 & 3 sons of late Chaudhary Yadav.
                        All Resident of Village- Harlakhi Tola, Ranipatti, P.O.- Harlakhi, P.S.
                 Harlakhi, District- Madhubani.

                                                                              ... ... Petitioners
                                                    Versus

           1.    Anatar Devi W/o Ganpat Yadav
           2.    Binod Yadav S/o Late Ganpat Yadav.
                        Both are resident of Village-Kalna, P.S.-Harlakhi, District-
                 Madhubani.
           3.    Paltu Yadav.
           4.    Umesh Yadav
                       Both sons of Late Satya Yadav and resident of Village and P.O.-
                 Basopatti, P.S. Harlakhi, District- Madhubani.
           5.    Mithilesh Yadav S/o Binda Yadav Resident of Village- Mauzapatti, P.O.
                 Bisaul, P.S.- Harlakhi, District- Madhubani.

                                                           ... ... Respondents
                 ======================================================
                 Appearance :
                 For the Petitioners   :       Mr. Ratanakar Jha, Advocate
                 For the Respondents   :       Mr. J.S. Arora, Sr. Advocate
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
                                       ORAL ORDER

6   04-09-2023                    In this case, the petitioners are challenging the

                   order dated 14.06.2017 passed by learned Sub Judge, Benipatti
Patna High Court C.Misc. No.1991 of 2017(6) dt.04-09-2023
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          in P.S. Case No.09 of 2005, by which the learned Sub Judge has

          dismissed the amendment petition filed by the petitioners.

                           2.      Learned counsel for the petitioners submits

          that the learned Sub Judge while rejecting the amendment

          petition has not considered the fact that proposed amendment do

          not change the nature of the suit. He also submits that the

          learned Sub Judge has also not considered the fact that proposed

          amendment was necessary for determining the real question in

          controversy between the parties. Therefore, this Court may

          quash the impugned order and allow the amendment petition

          filed by the petitioners in the Court below.

                           3.      In support of his submissions, learned

          counsel for the petitioner has relied upon a recent decision of

          the Hon’ble Supreme Court rendered in the case of Life

          Insurance Corporation of India vs. Sanjeev Builders Private

          Limited & Anr. reported in AIR 2022 SC 4256.

                           4.      Learned senior counsel for the respondents

          submits that in the Court below the evidence of both the parties

          has been closed and the amendment being sought by the

          petitioners is at the last stage of the case just to delay the

          disposal of the case and therefore, the Court below has rightly

          dismissed the amendment petition filed by the petitioners.
Patna High Court C.Misc. No.1991 of 2017(6) dt.04-09-2023
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                           5.       I have considered the rival submissions of

          the parties and also perused the materials on record including

          the decision of the Hon’ble Supreme Court rendered in the case

          of Life Insurance Corporation of India vs. Sanjeev Builders

          Private Limited & Anr. (supra). Paragraph no.70 of the

          aforesaid decision is the conclusion of the Hon’ble Supreme

          Court in the matter, which reads as under:-

                           “70. Our final conclusions may be summed up thus:

                                (i) Order II Rule 2 CPC operates as a bar against
                                    a subsequent suit if the requisite conditions for
                                    application thereof are satisfied and the field of
                                    amendment of pleadings falls far beyond its
                                    purview. The plea of amendment being barred
                                    under    Order     II Rule   2 CPC      is, thus,
                                    misconceived and hence negatived.
                                (ii) All amendments are to be allowed which are
                                    necessary for determining the real question in
                                    controversy provided it does not cause injustice
                                    or prejudice to the other side. This is
                                    mandatory, as is apparent from the use of the
                                    word “shall”, in the latter part of Order VI Rule
                                    17 of the CPC.
                                (iii) The prayer for amendment is to be allowed
                                    (i) if the amendment is required for effective and
                                    proper adjudication of the controversy between
                                    the parties, and
                                    (ii) to avoid multiplicity of proceedings,
                                    provided
                                            (a) the amendment does not result in
Patna High Court C.Misc. No.1991 of 2017(6) dt.04-09-2023
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                                           injustice to the other side,
                                           (b) by the amendment, the parties seeking
                                           amendment does not seek to withdraw
                                           any clear admission made by the party
                                           which confers a right on the other side
                                           and
                                           (c) the amendment does not raise a time
                                           barred claim, resulting in divesting of the
                                           other side of a valuable accrued right (in
                                           certain situations).
                                   (iv) A prayer for amendment is generally
                                   required to be allowed unless
                                           (i) by the amendment, a time barred
                                           claim is sought to be introduced, in
                                           which case the fact that the claim would
                                           be time barred becomes a relevant factor
                                           for consideration,
                                           (ii) the amendment changes the nature of
                                           the suit,
                                           (iii) the prayer for amendment is
                                           malafide, or
                                           (iv) by the amendment, the other side
                                           loses a valid defence.
                                   (v) In dealing with a prayer for amendment of
                                   pleadings,      the      court   should   avoid   a
                                   hypertechnical approach, and is ordinarily
                                   required to be liberal especially where the
                                   opposite party can be compensated by costs.
                                   (vi) Where the amendment would enable the
                                   court to pin-pointedly consider the dispute and
                                   would aid in rendering a more satisfactory
                                   decision, the prayer for amendment should be
Patna High Court C.Misc. No.1991 of 2017(6) dt.04-09-2023
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                                   allowed.
                                   (vii) Where the amendment merely sought to
                                   introduce an additional or a new approach
                                   without introducing a time barred cause of
                                   action, the amendment is liable to be allowed
                                   even after expiry of limitation.
                                   (viii) Amendment may be justifiably allowed
                                   where it is intended to rectify the absence of
                                   material particulars in the plaint.
                                   (ix) Delay in applying for amendment alone is
                                   not a ground to disallow the prayer. Where the
                                   aspect of delay is arguable, the prayer for
                                   amendment could be allowed and the issue of
                                   limitation framed separately for decision.
                                   (x) Where the amendment changes the nature of
                                   the suit or the cause of action, so as to set up an
                                   entirely new case, foreign to the case set up in
                                   the plaint, the amendment must be disallowed.
                                   Where, however, the amendment sought is only
                                   with respect to the relief in the plaint, and is
                                   predicated on facts which are already pleaded
                                   in the plaint, ordinarily the amendment is
                                   required to be allowed.
                                   (xi) Where the amendment is sought before
                                   commencement of trial, the court is required to
                                   be liberal in its approach. The court is required
                                   to bear in mind the fact that the opposite party
                                   would have a chance to meet the case set up in
                                   amendment. As such, where the amendment does
                                   not result in irreparable prejudice to the
                                   opposite party, or divest the opposite party of an
                                   advantage which it had secured as a result of an
              Patna High Court C.Misc. No.1991 of 2017(6) dt.04-09-2023
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                                                 admission by the party seeking amendment, the
                                                 amendment is required to be allowed. Equally,
                                                 where the amendment is necessary for the court
                                                 to effectively adjudicate on the main issues in
                                                 controversy between the parties, the amendment
                                                 should be allowed. (See Vijay Gupta v.
                                                 Gagninder Kr. Gandhi & Ors., 2022 SCC
                                                 OnLine Del 1897).” s


                                         6.      In the present case, it is an admitted position

                        that the parties have led their evidences and thereafter the

                        application for amendment has been filed. In the above decision,

                        the Hon’ble Supreme Court has held that amendment should not

                        be allowed at a belated stage. I find that the amendment petition

                        filed in the Court below is at the fag end of the case, which

                        should not be allowed and the Court below has rightly rejected

                        the amendment petition.

                                         7.      In view of the above, this application is

                        dismissed.


                                                                 (Sandeep Kumar, J)

pawan/-

U         T


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