P.A. JAYALAKSHMIversusH. SARADHA AND ORS.

                       [2009] 11 S.C.R. 131


                        P.A. JAYALAKSHMI                           A
                                 v.
                    H. SARADHA AND ORS.
                 (Civil Appeal No. 4586 of 2009)
                          JULY 21, 2009
                                                                   B
            [S.B. SINHA AND DEEPAK VERMA, JJ.]

        Code of Civil Procedure, 1908:

        Or. V/11, r. 9 and Or. VI, r. 17 - Distinction between -   c
    Discussed.

          Or. VIII, r. 9 and proviso to Or. VI, r. 17 - Additional
    pleadings - Suit for partition - Application filed by defendant-
     appellant seeking leave to file additional written statement -
     Rejected by Courts below - Justification of - Held: On facts, D
    justified - The application was filed at a much belated stage
    - Statutory limitations brought about by reason of
     amendments in CPC to be kept in mind.

         Respondents filed suit for partition in the year 2004.    E
    Appellant filed written statement in 2006 and on 1-3-2007,
    filed application purportedly in terms of Or.VIII, r.9 CPC
    seeking leave to file additional written statement with
•   regard to a Will in regard to the suit property, which was
    not mentioned in the written statement. By that time           F
    examination of one witness was over. The Will was
    purportedly executed in· 1993 and it was urged by the
    appellant that she discovered the existence of Will only
    on 5-2-2007. The said application was dismissed by the
    Trial Court. Revision petition filed by appellant was          G
    dismissed by the High Court.

       In appeal to this Court, it was contended that the
    Courts below failed to take into consideration that in

                                131                                H
    132      SUPREME COURT REPORTS           [2009] 11 S.C.R.


A effect and substance, appellant's application should have      ·~
  been treated to be one for amendment of written
  statement as envisaged under Order VI, r.17 CPC and not
  one for leave to file additional pleadings as envisaged
  under Or.VIII, r.9 thereof; that the appellant having raised
B a contention that she discovered the existence of Will
  only on 5-2-2007, even the requirements of the proviso
  appended to Or.VI, r.17 CPC must be held to have been
                                                                 ·t
  satisfied and that by reason of the said application, the
  appellant did not bring about any change in the principal
c contention raised in her written statement as the said Will
  was sought to be brought on record wherefor requisite
  pleadings were necessary only to support her case that
  the property in question was not a joint family property.

          Dismissing the appeal, the Court
D
                                                                      ...
         HELD: 1. With a view to put an end to the practice of
  fili.ng applications for amendments of pleadings belatedly,
  a proviso was added to Order VI Rule 17. CPC. Order VI
  Rule 17 speaks of amendment of pleadings whereas
E Order VIII Rule 9 CPC provides for subsequent pleadings
  by a defendant. The distinction between the two
  provisions is evident. Whereas by reas'ln of the former
  unless a contrary intention is expressed by the court, any
  amendment carried out in the pleadings shall relate back       •
F to the date of filing original thereof, subsequent pleadings
  stand on different footings. [Para 8] [137-D-H; 138-A]

      2. In the present case, for reasons best known to the
  appellant, she had chosen to file her application seeking
  leave to file additional pleadings. Such a stand might have
G been taken by her with a view to obviate the bar created
  by reason of the proviso appended to Order VI, Rule 17
  of CPC; The firm stand taken by the appellant both before >
  the Trial Court as also the High Court was that her
  application was under Order VIII, Rule 9 of CPC . At no
H
      P.A. JAYALAKSHMI v. H. SARADHA AND ORS.              133


~ point of time, a contention was raised that she wanted to       A
  amend her pleadings. [Para 9] [138-8-C]

        3. Ordinarily at such a belated stage, leave for filing
   additional written statement is usually not granted.
   Noticeably one of the plaintiffs was examined on 1.3.2007.     8
   Despite the fact that the appellant is said to have
   discovered the existence of the Will on or about 5.2.2007,
t- no question was put to the said witness with regard to
   the said Will or otherwise. It is only at a later stage that
   the aforementioned application for grant of leave to file      C
   additional written statement was moved. There cannot be
   any doubt or dispute that the courts should be liberal in
   allowing applications for leave to amend pleadings but it
   is also well settled that the courts must bear in mind the
   statutory limitations brought about by reason of the Code
   of Civil Procedure (Amendment) Acts; the proviso               D
   appended to Order VI Rule 17 being one of them. [Para
   10] [138-D-F]

       North Eastern Railway Administration, Gorakhpur v.
  Bhagwan Das (Dead) By LRs. (2008) 8 SCC 511; Bollepanda         E
  P. Poonacha & Anr. v. K. M. Madapa (2008) 13 SCC 179 and
  Vidyabai & Ors. v. Padmalatha & Anr. (2009) 2 SCC 409,
  relied on.

                       Case Law Reference:
                                                                  F
      (2008) s sec 511         relied on            Para 10
      (2008) 13 sec 119        relied on            Para 10
      (2009) 2 sec 4_09        relied on            Para 10
                                                                  G
      CIVIL APPELLATE JURISDICTION : Civil Appeal No:
  4586 of 2009.

      From the Judgment & Order dated 04.09.2007 of the High
  Court of Judicature at Madras in Civil Revision Petition No.
                                                                  H
    134       SUPREME COURT REPORTS                [2009) 11 S.C.R.


A   1643 of 2007 in M.P. No. 1 of 2007~

          K.V. Viswanathan, S. Lesi, V. Balaji and P. Narasimhan
    for the Appellants.

        B.K. Pal, T.S. Shanthi, V. Balachandran for the
8   Respondents.

          The Judgment of the Court wa$ delivered by

          S.B. SINHA, J. 1. Leave gr~mted.
c        2. Distinction between Order VIII Rule 9 of the Code of Civil
    Procedure and Order VI Rule 17 thereof is the question involved
    in this appeal. It arises out ·of a judgment and order dated
    4.9.2007 passed by a learned Single Judge of the High Court
    of Judicature at Madras in CRP (NOP) No.1643 of 2007.
D
         3. Before embarking on the said question, we may notice
    the admitted fact:

       Anantha Subramania Iyer had two brothers. They were
  members of ~joint family. By reason of a deed of partition
E dated 23.8.1962, the saia join.t family properties were
  partitioned in terms whereof the properties Involved in the
  present suit were allotted to Anantha Subramania Iyer. He had
  two sons and five daughters. Appellant JS one of them. He
  allegedly executed a Will on or about 18.3 . 1993 in terms
F whereof he bequeathed the property in suit in favour of his wife.
  The said Will was said to have been attested by his sons.
  Anantha Sumramania passed away on 19.3.1993. Indisputably,
  his wife also passed away on 13.8.1993. P.A. Ganesan, one
  of the sons of Anantha Subramania Iyer passed away on
G 24.5.1998 leaving behind his wife and three daughters who are
  respondent Nos.1 to 4 herein. The said respondents filed a suit
  for partition in the year 2004. According to them, the suit            >
  property was a joint family property and both the brothers being
  coparceners had 1/3rd share therein. Apart therefrom, they
H
         P.A. JAYALAKSHMI v. H. SARADHA AND ORS.                    135
                       [S.B. SINHA, J.]

'    claimed their share also in the property which P.A. Ganesan
     had inherited from his father, and, thus, the same came to 81
                                                                            A

     21 for each of the sons of Anantha Subramania Iyer and 1/21
     share so far as his daughters including the appellant are
     concerned.
                                                                            8
           4. Appellant filed her written statement on 7.4.2006, inter
     alia, contending that after the death of Anantha Subramania
,_
     Iyer, the properties in suit devolved upon each of his children
     equally as a result whereof she inherited 1/7th share therein.
     Allegedly, she discovered on or about 5.2.2007 that Ana'ntha
     Subramania Iyer had executed a Will in favour of his wife. On
                                                                            c
     or about 1.3.2007, she filed an application for leave to file
     additional written statement. By an order dated 27.3.2007, the
     learned Trial Judge dismissed the said application, opining :
          1
          '10. The petitioner/4th defendant has filed this petition after   D
         the start of the enquiry proceedings in this suit and after
         examination of the PW1 in full stating that one Anantha
         $ubramania Iyer had executed a WILL on 18.3.93, that a
         copy of the same traced out only now and hence it is to
         be considered that mentioning of the same in the additional        E
         written statement itself would be a belated one and further
         failure to mention this in the written statement filed on
         7.11.2006 and after the start of trial filing a petition seeking
~        permission to file additional written statement with regard
         to a WILL which has not been mentioned in the written
                                                                            F
         statement seems not acceptable and the petition is a
         belated one."

          5. Aggrieved thereby and dissatisfied therewith, the
     appellant filed a Civil Revision Petition which by reason of the
     impugned judgment has been dismissed by the High Court,                G
_,   stating :

         "On a careful consideration of the reasons stated by the
         learned senior counsel appearing for the Respondent, this
         Court is of the view that the introduction of the Will said to     H
    136      SUPREME COURT REPORTS                 [2009] 11 S.C.R.
                                                                             F-
                                                                         +
A         have been executed by Ananthasubramaniam dated
          18.3.1993 could not be con.sidered to receive the same.
          For the reasons that if the Will is received by the Court,
          then 'the rights of the parties will be completely changed.
          Under such circumstances the share claimed by the
B         Plaintiff in the suit will also be changed. Under such
          circumstances, this Court is not inclined to interfere with
          the order passed by the learned Additional District and-
          Sessions Judge, (Fast Track Court No.II), Coimbatore. This
          Court does not find any valid reasons, the revision is no
c         merits and the same is dismissed. Cons:equently;
          concerned M.P. No.1 of 2007 is closed. No cost."

        6. Mr. Vishwanathan, learned senior counsel
                                                , appearing on
    behalf of the appellant, would urge :

D          (1)   The learned Trial Judge as also the High Court
                 committed a serious error in passing the impugned
                 judgment insofar as they failed to take into
                 consideration that in effect and substance,
                 appellant's application should have been treated to
E                be one for amendment of written statement as
                 envisaged under Order VI Rule 17 of the Code of
                 Civil Procedure and not one for leave to file
                 additional pleadings as envisaged under Order VIII
                 Rule 9 thereof.
F          (2)   The appellant having raised a contention that she
                 discovered the existence of Will only on 5.2.2007,
                 even the requirements of the proviso appended to
                 Order VI R.ule 17 of the Code of Civil Procedure
                 must be held to have been satisfied.
G
          (3)    By reason of the said application, the appellant did
                 not bring about any change in the principal            .I
                 contention raised in her written statement as the
                 said Will was sought to be brought on record
                 wherefor requisite pleadings were necessary only
H
    P.A. JAYALAKSHMI v. H. SARADHA AND ORS.                    137
                       [S.B. SINHA, J.]

            to support her case that the properties in question       A
            belonged to Anantha Subramania Iyer and the same
            was not a joint Mitakshara Coparcenery property.

     7. Mr. B.K. Pal, learned counsel appearing on behalf of the
respondent, on the other hand, supported the impugned                 B
judgment contending that the appellant had all along contended
that the said application wa_s filed in terms of Order VI 11 Rule 9
of the Code of Civil Procedure.

     8. By reason of Code of Civil Procedure (Amendment) Act,
1976, measures have been taken for early disposal of the suits.       C
In furtherance of the aforementioned Parliamentary object,
further amendments were carried out in the year 1999 and
2002.
     With a view to put an end to the practice of filing . o
applications for amendments of pleadings belatedly, a proviso
was added to Order VI Rule 17 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 pleadings in such manner and on· such terms            E
     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.        F
    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."

     Order VI Rule 17 speaks of amendment of pleadings                G
whereas Order VIII Rule 9 provides for subsequent pleadings
by a defendant. The distinction between the two provisions is
evident. Whereas by reason of the former unless a contrary
intention is expressed by the court, any amendment carried out
                                                                      H
    138       SUPREME COURT REPORTS               [2009] 11 S.C.R.


A   in the pleadings shall relate back to the date of filing original
    thereof, su~sequent pleadings stand on different footings.
               '   '

       9. For reasons best known to the appellant, she had
  chosen to file her application seeking leave to file additional
  pleadings. Such a stand might have been taken by her with a
B
  view to obviate the bar created by reason of the proviso
  appended to Order VI Rule 17 of the Code of Civil Procedure.
                                                                        ~
  The firm stand taken by )he appellant both before the Trial Court
  as also the High Court was that her application was under ,
  Order VIII Rule 9 of the Code of Civil Procedure. At no point of
c time, a contention was raised that she wanted to amend her
  pleadings.

        10. Ordinarily at such a belated stage, leave for filing
  additional written statement is usually not granted. We may
D no~ice that one of the plaintiffs was examined on 1.3.2007. It is         ;.-
  acpepted at the bar that despite the fact that the appellant is
  sa.id to have discovered the existence of the Will on or about
  5.2.2007, no question was put to the said witness with regard
  to the said Will or otherwise. It is only at a later stage that the
E aforementioned application Jor grant of leave to file additional
  written statement was moved. There cannot be any doubt or
  dispute that the courts should be liberal in allowing applications
  for leave to amend pleadings but it is also well settled that the
  courts must bear in mind the statutory limitations brought about
                                                                            "
F by reason of the Code of Civil Procedure (Amendment) Acts;
  the proviso appended to Order VI Rule 17 being one of them.

         In North Eastern Railway Administration, Gorakhpur v.
    Bhagwan Das (Dead) By ~Rs. [(2008) 8 SCC 511], the law
    has laid down by this Court in the following terms:
G
          "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
H         postulates amendment of pleadings at any stage of the
       P.A. JAYALAKSHMI v. H. SARADHA AND ORS.               1391
                     [S.B. SINHA, J.]
        proceedings. In Pirgonda Hongonda Patil v. Ka/gonda A
        Shidgonda PatiP which still holds the field, it was held that
        all amendments ought to be aJlowed which satisfy the two
        conditions: (a) of not working injustice to the other side,
        and (b) of being necessar-Y for the purpose of determining
        the real questions in controversy between the parties. B
        Amendments should be refused only where the other party
        cannot be placed in the same position as if the pleadin~ 1
        had been originally correct, but the amendment would·
        cause him an injury which could not be compensated in
        costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar ·     c
        Mohan/al Ka/war')."

         Yet again, in Bollepanda P. Poonacha & Anr. v. K.M.
    Madapa [(2008) 13 SCC 179]. the law is laid down in the
    following terms :
                                                                    D
        "15. A belated counterclaim must be discouraged by this
        Court. See Ramesh Chand Ardawatiya v. Anil Panjwani.
        We are, however, not unmindful of the decisions of this
        Court where a defendant has been al-lowed to amend his
        written statement so as to enable him to elaborate his E
;       defence or to take additional pleas in support of his case.
        The Court in such matters has a wide discretion. It must,
        however, subserve the ultimate cause of justice. It may be
        true that further litigation should be endeavoured to be
        avoided. It may also be true that joinder of several causes F
        of action in a suit is permissible. The Court, must,
        however, exercise the discretionary jurisdiction in a
       judicious manner. While considering that subservance of
       justice is the ultimate goal, the statutory limitation shall
        not be overstepped. Grant of relief will depend upon the G
       factual background involved in each case. The Court,
       while undoubtedly would take into consideration the
       questions of serious injustice or irreparable loss, but
        nevertheless should bear in mind that a provision for
        amendment of pleadings is not available as a matter of H
    140       SUPREME COURT REPORTS                  [2009) 11 S.C.R.


A         right under all circumstances. One cause of action cannot
          be allowed to be substituted by another. Ordinarily, effect
          of an admission made in earlier pleadings shall not be
          permitted to be taken away. See State of A.P. v. Pioneer
          Builders6 and Steel Authority of India Ltd. v. Union of
B         lndia7 and Himmat Singh v. IC/ India Ltd."

                                                 (Emphasis supplied)

       Yet again, in Vidyabai & Ors. v. Padmalatha & Anr. [(2009)
  2 SCC 409), this Court upon taking into consideration the effect
C of the insertion of proviso to Order VI Rule 17 held as under :

          "10. By reason of the Civil Procedure Code (Amendment)
          Act, 2002 (Act 22 of 2002), Parliament inter alia inserted
          a proviso to Order 6 Rule 17 of the Code, which reads as
D         under:

          "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
E         commencement of trial."

          It is couched in a mandatory form. The court's jurisdiction
          to allow such an application is taken away unless the
          conditions precedent therefor are satisfied viz. it must
F         come to a conclusion that in spite of due diligence the
          parties could not have raised the matter before the
          commencement of the trial.

          xxx            xxx            xxx
G         19. It is the primal duty of the court to decide as to whether
          such an amendment is necessary to decide the real
          dispute between the parties. Only if such a condition is
          fulfilled, the amendment is to be allowed. However, proviso
          appended to Order 6 Rule 17 of the Code restricts the
H         power of the court. It puts an embargo on exercise of its
           P.A. JAYALAKSHMI v. H. SARADHA AND ORS.                     141
                         (S.B. SINHA, J.]
            jurisdiction. The court's jurisdiction, in a case of this nature   A
            is limited. Thus, unless the jurisdictional fact, as envisaged
            therein, is found to be existing, the court 'Nill have no
            jurisdiction at all to allow the amendment of the plaint."

            11. We; therefore, do not find any legal infirmity in the
                                                                               8
        orders passed by the High Court. This appeal is, therefore,
        dismissed with costs. Counsel's fee assessed at Rs.10,000/-
    r   (Rupees ten thousand only).

        8.8.8.                                        Appeal dismissed.




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