RAJKUMAR GURAWARA (DEAD) THR. L.RS.versusM/S S.K. SARWAGI & CO. PVT. LTD. & ANR.

              - ·---- -- ltoosr8s.C.R~foo

A          RAJKUMAR GURAWARA (DEAD) THR. L.RS.
                                   v.
           MIS S.K. SARWAGI & CO. PVT. LTD. & ANR.
                   (Civil Appeal No. 3576 o'f 2008)
                            MAY 14, 2008
B
        [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
                                                                            *
          Code of Civil Procedure, 1908 - C~ 6 r. 17 - Amendment                 r
                                                                                 I
  of plaint - Sought at the stage of arguments - Permissibility-
C Held: Amendment of the plaint can be permitted at any stage
  of the proceedings, but subject to certain conditions :.... Jn the            '"'"~




D
  instant case, plaintiff failed to satisfy those conditions - Plain-
  tiff also failed to take recourse to the amendment at appropri-
  ate time - Hence amendment cannot be permitted.
          Appellant-plaintiff filed a suit for declaration of his
                                                                                '
    exclusive right to do mining operation in the suit prop- ~
    erty. Thereafter first respondent filed an application for
    its impleadment and was impleaded as second defendant
  · after closing of the evidence and during course of the ar-                  ~
E guments. Thereafter, appellant filed an application under
    Order VI Rule 17 r/w s.151 CPC for amendment of the plaint
    praying for possession over the suit property and for
    grant of damages. The application was allowed. First .
    respondent filed revision petition, which was allowed by
F tiigh Court dismissing the application for amendment. ,.
    Hence the present appeal.
         Dismissing the appeal, the Court
       HELD: 1.0rder VI Rule 17 C.P.C. confers jurisdiction
G on the Court to allow either party to alter or amend his
  pleadings at any stage of the proceedings on such terms
  as may be just. Such amendments seeking determina-                    ~
  tion of the real question of the controversy between the
  parties shall be permitted to be made. Pre-trial amend-
H                                .700
      RAJKUMAR GURAWARA (DEAD) THR. L.RS. v.           701
      . M/S S.K. SARWAGI & CO. PVT. LTD. & ANR.

ments are to be allowed liberally than those which are A
sought to be made after the commencement of the trial.
In the former case, the opposite party is not prejudiced
because he will have an opportunity of meeting the
amendment sought to be made. In the latter case, namely,
after the commencement of trial, partlcularly, after comple- B
tion of the evidence, the question of prejudice to the op-
posite party may arise and in such event, it is incumbent
on the part of the Court to satisfy the conditions pre-
scribed in the proviso. [Para 5) [706-C,D,E,F]
      2. The grant of application for amendment be sub- C
ject to certain conditions, namely, (I) when the nature of it
is changed by permitting amendment; (ii) when the
amendment would result introducing new cause of ac-
tion and intends to prejudice the other party; (iii). when
allowing amendment application defeats the law of limi- D
tation. The plaintiff not only failed to satisfy the conditions
prescribed in proviso to Order VI Rule 17 but even on
merits his claim is liable to be rejected. [Para 7) [708-E,F]
      3. In the present case, prior to filing of the suit, no-
tices wer.e exchanged between the parties. In reply to the E
plaintiff's notice, it was specifically asserted that the first
respondent(D2) was carrying on mining activities in the
suit schedule lands. The perusal of the reply notice is-
sued by first respondent to the plaintiff, clearly shows
that the plaintiff was made known that the suit lands were F
in possession of first respondent having taken them on
lease from the Government. With the said information in
the reply notice about the mining being carried on by first
respondent, the plaintiff filed the said suit without implead-
ing him for possession and damages. It is explicit from G
the written statement filed by D-1 that the plaintiff was
made known of the fact that the Government issued or-
der transferring mining lease held by A.P. Mineral Devel-
opment Corporation in favour of first respondent and the
leased lands are in possession and enjoyment of first re- H
    702       SUPREME COURT REPORTS                [2008] 8 S.C.R.


A spondent. lnspite of the plaintiff being put in knowledge
  of the act of the person in possession of the suit property
  did not choose to implead the first respondent which
  came on record on its own application as D-2 in the suit.
  It is clear that inspite of reply notice and specific plea taken
B in the written statement of D-1, the plaintiff did not chose
  to take steps to get the plaint amended suitably and in-
  stead allowed the suit to go on and examined the wit-
  nesses on his behalf and cross-examinE!d the witnesses             °"
  produced by the defendants. Only during the stage of ar-
c guments,     the plaintiff came up with an application under
  Order VI Rule 17 CPC seeking amendment of the plead-
  ings. [Paras 6 and 7] [706-G,H, 707-A,B, 7'07-E-H, 708-A,B]
        4. Though even after commencement of the trial, par-
  ties to the proceeding are entitled to seek amendment, in
D the light of the factual details such as clear information in
  the reply notice prior to the filing of the suit and specific      ~
  plea in the written statement of D-1 which contained de-
  tails of Government Orders leasing out the suit property
  in favour of D-2, the action of the plaintiff at the stage of
E argument can not be permitted. Admittedly, the plaintiff
  failed to adhere to the said recourse af: the appropriate
  time. [Para 7] [708-B,C]
         CIVIL APPELLATE JURISDICTfON: Civil Appeal No. 3576
    of 2008
F
          From the final Judgment and Order dated 17.8.2004 of
    the High Court of Judicature of Andhra Pradesh at Hyderabad
    in Civil Revision Petition No. 1738 of 2004
      Siddharth Luthra, Shashi M. Kapila,Arundhati Katju, Kuna!
G Tandon and Vikas Mehta for the Appellants.
         A.V. Rangam, Buddy A. Ranganadhan, Manoj Sexena,
                                                                      ~
    Rajneesh Kr. Singh, Rahul Shukla and T.V. George for the Re-
    spondents.                                                            (



H         The Judgment of the Court was delivered by·
                                                                          1"
            RAJKUMAR GURAWARA (DEAD) THR. L.RS. v.         703
     M/S S.K. SARWAGI & CO. PVT. LTD. & ANR. [P. SATHASIVAM, J.]

          P. SATHASIVAIVI, J. 1. Leave granted.                            A
           2. Challenge in this appeal is the order dated 17.08.2004
     of the High Court of Andhra Pradesh at Hyderabad in Civil Re-
     vision Petition No. 1738 of 2004 whereby the High Court al-
     lowed the revision filed by respondent No.1 herein.
..        3. the brief facts leading to the filing of this appeal are:
                                                                           B

           On 05.01.1948, the father of the appellant purchased the
     suit lands at Ayitham Valasa Village, Grividi Mandal,
     Vizianagaram, Andhra Pradesh along with some other proper-
     ties for Rs.9, 176/- at a public auction held under the liquidation   C
     proceedings in O.P. No. 30 of 1946 on the file of the District
     Court at Vizianagaram before the Official Liquidator at
     Vizagpatnam (Visakhapatnam) in the matter of the Indian Com-
     panies Act, 1913 and of the Vizianagaram Mining Co. Ltd. in
     liquidation and the Rajah Saheb and others as creditors in pur-       D
     suance of the order dated 6.3.1946 passed by the High Court
     of Madras in O.P. No. 25 of 1946. The suit lands were regis-
     tered on 30.4.1948 under the Registered Document No. 732 of
     1948 in Book I, Volume 346 at pages 14 7 to 151 in the office of
     the Registrar at Vizianagaram in favour of the father of the ap-      E
     pellant conveying, transferring and assigning all the rights in-
     cluding ownership, possession and interests of Vizianagaram
     Mining Co. Ltd., i:e., right to mining operations, use and sell the
     said lands. The mining operations were carried over the said
     lands in the name and style as M/sAshwani Rajkumar Mining &           F
     Trading Company by the father of the appellant. In 1958, the
     father of the appellant expired. After the death of father, the
     appellant was carrying the mining operations. In 1960, the ap-
     pellant left Vizianagaram for Jagadalpur because of his other
     business work. In 2001-2002, the appellant came to know that          G
     respondent No.2 - State of Andhra Pradesh, was planning to
     lease out the said lands for mining operation to other compa-
     nies. On 22.3.2002, the appellant issued a notice under Sec-
     tion 80 C.P.C. to the State through his counsel asking the State
     not to give the suit property on lease to any other party and not     H
    704       SUPREME COURT REPORTS                  [2008] 8 S.C.R.


A to interfere with the rights and interest of the appellant over the
  suit lands. On 8.7.2002, the appellant came to know that re-
  spondent No.2-State has invited some companies to take the
  suit lands on lease against the rights and interest of the appel-
  lant. On 20.8.2002, the appellant filed Original Suit No.6 of2002
8 in the Court of the Additional District Court, Vizianagaram seek-
  ing declaration of his exclusive right to do mining operation, to     •
  use and sell over the suit lands against respondent No.2' s in-
  fringement of such exclusive right of the appellant over the suit
  lands. An application of ad-interim injunction was also filed re-
c straining respondent No.2 from ever leasing the suit land to
  strangers against the interest of the appellant over the said
  lands. When the trial was about to close in the said suit, on
  11.6.2003, an application under Order 1 RulEi 10 CPC was filed
  by respondent No.1 herein to be added as defendant No.2 in
  the original suit on the ground that a deed has been executed in
0
  its favour by the State leasing the suit lands for mining opera-
  tions. On 11. 7.2003, the said application was allowed by the
  Additional District Judge and respondent No.1 herein was
  added as defendant No.2 in the original suit.
E       .Thereafter on 14.10.2003, an application was moved on
  behalf of respondent No.1 for appointment 1Df a local Commis-
  sioner to note the physical features of the suit lands and to file
  his report. The said application was allowed by order dated
  23.10.2003 and a local Commissioner was appointed. On
F 3.12.2003, the Commissioner inspected the suit lands and filed
  its report stating that the suit lands were in possession of re-
  spondent No.1 and mining operations were carried by it. In
  December, 2003 itself, the appellant herein moved an applica-
  tion under Order VI Rule 17 C.P.C. for amendment of the plaint
G and also consequential relief for possession of the suit lands
  and for damages trespassing into and canrying on mining op-
  erations on the suit lands and the same was allowed on
  10.3.2004. Against the said order, respondent No.1 approached
  the High Court by way of revision petition. By order dated
  17.8.2004, the High Court allowed the said revision petition.
H
            RAJKUMAR GURAWARA (DEAD) THR. L.RS. v.         705
     MIS S.K. SARWAGI & CO. PVf. LTD. & ANR. [P. SATHASIVAM, J.]
.l
     Aggrieved by the said order, the a_bove appeal has been filed          A
     by way of special leave.
          4. Heard Mr. Siddharth Luthra, learned senior counsel ap-
     pearing for the appellants and Mr. A.V. Rangam, learned coun-
     sel appearing for respondent No.1 and Mr. Manoj Saxena,
     learned counsel appearing for respondent No.2 .                         B
•
           5. Originally, the appellant/plaintiff filed the suit for declara-
     tion of his exclusive right to do mining operation in the suit prop-
     erty. However, after impleadment of M/s S.K. Sarwagi and Com-
     pany as second defendant (first respondent herein) after closing c
     of the evidence and during the course of argument, the plaintiff
     filed an application under Order VI Rule 17 read with 151 CPC
     for amendment of the plaint praying for possession over the plaint
     schedule mentioned property from the defendants and for grant
     of damages of Rs. 5.00 lacs in favour of the plaintiff for their min-
                                                                              D
     ing operations without consent of the plaintiff in the plaint sched-
     ule property. Though the learned Additional District Judge al-
     lowed the application for amendment on payment of cost of Rs.
     300/- the High Court in a civil revision filed under Article 227 of
     the Constitution of India set aside the same and dismissed the
     application for amendment which is the subject matter in this E
     appeal. In order to consider whether the appellant/plaintiff has
     made out a case for amendment of his plaint, it is useful to refer
..   Order VI Rule 17 CPC which reads as under:-
           "17. Amendment of pleadings.- The Court may at any                F
           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:
                                                                            G
          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."                                            H
     706        SUPREME COURT REPORTS                     [2008] 8S.C.R.

A              The first part of the rule makes it abundantly clear that at
        any stage of the proceedings, parties are free to alter or amend
        their pleadings as may be necessary for the purpose of deter-
        mining the real questions in controversy. However, this rule is
        subject to proviso appended therein. The said rule with proviso
  B again substituted by Act 22 of 2002 with effect from 01.07.2002
        makes it clear that after the commencement of the trial, no ap-
                                                                              •
        plication for amendment shall be allowed. However, if the par-
        ties to the proceedings able to satisfy the court that in spite of
       due diligence could not raise the issue before the commence-
  C ment of trial and the court satisfies their explanation, amend-
        ment can be allowed even after commencement of the trial. To
        put it clear, Order VI Rule 17 C.P.C. confors jurisdiction on the
        Court to allow either party to alter or amend his pleadings at
        any stage of the proceedings on such terms as may be just.
        Such amendments seeking determination of the real question
  0
        of the controversy between the parties shall be permitted to be
        made. Pre-trial amendments are to be allowed.liberally than
        those which are sought to be made after the commencement of
        the trial. As rightly pointed out by the High Court in the former
   . · case, the opposite party is not prejudiced because he will have
  E an opportunity of meeting the amendment sought to be made.
      · In the latter case, namely, after the commencement of trial, par-
        ticularly, after completion of the evidence, the question of preju-
        dice to the opposite party may arise and in such event, it is
        incumbent on the part of the Court to satisfy the conditions pre-     •
. F scribed in the proviso.
        6. With this background, let us consider the application
  filed by the plaintiff and the orders passed by the District Court
  as well as the High Court. We have already stated that origi-
G nally the suit was filed against the sole defendant and subse-
  quently the second defendant came on record as per the order
  dated 11.07.2003. It is the case of the plaintiff that he is the
  absolute owner of the suit schedule lands. It is not in dispute
  that prior to filing of the suit, notices were exchanged between
  the parties. In their reply dated 18.8.2001 to the plaintiff's no-
H
       RAJKUMAR GURAWARA (DEAD) THR. L.RS. v.         707
MIS S.K. SARWAGI & CO. PVT. LTD. & ANR. [P. SATHASIVAM, J.]

tice, it was specifically asserted that the first respondent herein,    A
namely M/s S.K. Sarwagi & Co. Pvt. Ltd. is carrying on mining
activities in the suit schedule lands. The perusal of the reply
notice issued by D-2 to the plaintiff, which has been extracted
by the High Court in the impugned order, clearly shows that the
plaintiff was made known that the suit lands were in possession         B
of D-2 having taken them on lease from the Government. With
the said information in the reply notice about the mining being
carried on by D-2, the plaintiff filed the said suit without implead-
ing him for possession and damages.

      7. The other relevant fact to be noted is the plea taken in C
the written statement filed by D-1 wherein, it is specifically stated
that the suit schedule lands are classified as poramboke lands
in survey and settlement operations and that the Government
issued G.O. Ms. No. 459 (Industries and Commerce) Depart-
ment, dated 28.11.1998 leasing out an extent of 18.35 hect- D
ares of land covered under Survey Nos. 106 and 107 of Ayitham
Valasa Village in favour of A.P. Mineral Development Corpora-
tion for mining purpose for twenty years. It is further averred
that the Government in G.O. Ms. No. 102 (Industries and Com-
merce) Department .. dated 20.2.2001 issued Orders transfer- E
ring the mining lease held by A.P. Mineral Development Corpo-
ration in favour of M/s Sarwagi and Co. Pvt. Ltd. for the unex-
pired period of lease, i.e. upto 1.6.2019. As rightly observed
15y the High Court, it is explicit from the written statement filed
by D-1 that the plaintiff was made known of the fact that the F
Government issued order transferring mining lease held by A.P.
Mineral Development Corporation in favour of Mis Sarwagi and
Co. P. Ltd. (D-2) and the leased lands are in possession and
enjoyment of Mis Sarwagi & Co. P. Ltd. As rightly pointed out
by the learned counsel for the contesting respondent, in spite of G
the plaintiff being put in knowledge of the act of the person in
possession of the suit property did not choose to implead the
said Mis Sarwagi & Co. P. Ltd. (D-2) which came on record on
its own application as D-2 in the suit. It is clear that in spite of
reply notice and specific plea taken in the written statement of
                                                                      H
    708       SUPREME COURT REPORTS                    [2008) 8 S.C.R.


A D-1, the plaintiff did not chose to take steps to get the plaint
  amended suitably and instead allowed the suit to go on and
  examined the witnesses on his behalf and cross-examined the
  witnesses produced by the defendants. Only during the stage
  of arguments, the plaintiff came up with an application under
B Order VI Rule 17 seeking amendment of the pleadings. We
  have already explained the implication of proviso to Rule 17.
  Though even after commencement of the trial, parties to the
  proceeding are entitled to seek amendment, in the light of the
  factual details such as clear information in the reply notice prior
c to the filing of the suit and specific plea in the written statement
  of D-1 which contained details of Government Orders leasing
  out the suit property in favour of D-2, the action of the plaintiff at
  the stage of argument can not be permitted. Admittedly, the
  plaintiff failed to adhere to the said recourse at the appropriate
  time. Further it is relevant to point out that in the original suit,
0
  the plaintiff prayed for declaration of his exclusive right to do
  mining operations and to use and sell the suit schedule prop-
  erty and in the petition filed during the course of the arguments,
  he prayed for recovery of possession and damages from the
  second defendant. It is settled law that the grant of application
E for amendment be subject to certain conditions, namely, (i) when
  the nature of it is changed by permitting amendment; (ii) when
  the amendment would result introducing new cause of action
  and intends to prejudice the other party; (iii) when allowing
  amendment application defeats the law of limitation. The plain-
F tiff not only failed to satisfy the conditions prescribed in proviso
  to Order VI Rule 17 but even on merits his claim is liable to be
  rejected. All these relevant aspects have been duly considered
  by the High Court and rightly set aside the iorder dated 10.3.2004
  of the Additional District Judge.             ·
G
         8. In the result, we find no merit in the appeal and the same
  is dismissed. There shall be no order as. to costs.
    K.K.T.                                        Appeal dismissed.

H