Supreme Court of India
USHA DEVIversusRIJWAN AHAMD & ORS.
- Citation
- 2008 INSC 60
- Decided
- 17 January 2008
- Disposal
- Case Allowed
- Bench
- G P MATHUR
Holding
The amendment of the plaint should be permitted as the trial had not yet commenced for the purposes of the proviso and the amendment is necessary to bring the real dispute before the Court.
Summary
Usha Devi filed a suit for a permanent injunction over a parcel of land described in the plaint. The defendants objected to the description, and during a related miscellaneous proceeding the plaintiff’s husband affirmed the description. Two years later the plaintiff sought to amend the plaint to correct the description, claiming an inadvertent error. The trial court rejected the amendment, holding that the plaintiff had not exercised due diligence because the defect was raised earlier by the defendants, and the High Court affirmed. On appeal, the Supreme Court held that the amendment should be allowed, noting that the case was analogous to Sajjan Kumar v. Ram Kishan and that refusing the amendment would impede the real issue and cause execution difficulties. The Court allowed the amendment subject to a modest cost, and the defendants may amend their written statement in response.
Issues considered
- Whether an amendment to the plaint under Order 6 Rule 17 CPC is barred after the commencement of trial when the plaintiff alleges lack of due diligence.
- When does the 'commencement of trial' occur for the purpose of the proviso to Order 6 Rule 17 CPC.
- Whether correcting the description of the suit property amounts to a change of cause of action rendering the suit non‑maintainable.
- Whether the respondents can oppose the amendment by amending their written statement.
Legislation cited
- Code of Civil Procedure, 1908s. Order 6 Rule 17 (with proviso), s. Section 115, s. Section 151
Subjects
Amendment of plaintOrder 6 Rule 17 CPCDue diligenceCommencement of trialPermanent injunctionCivil procedure
Judgment
[2008) 1 S.C.R. 795
+ USHA DEVI A
\I.
RIJWAN AHAMD & ORS.
(C.A. No. 481 of 2008)
JANUARY 17, 2008
B
~
(G.P. MATHUR AND AFTAB ALAM, JJ.)
~
Code of Civil Procedure, 1908; 0. 6 r. 17:
Amendment of pleading - Suit for issuance of permanent
injunction against respondent-Amendment petition correcting c
certain description of the property in the Schedule to plaint -
Rejected by trial Court - Challenge to - Dismissed by High
Court - On appeal, Held: Wrong description of suit property
pointedly brought up by defendants not only in written statement
but also in course of proceedings of a Miscellaneous case - D
There was a lock of due diligence on the part of plaintiff-
appellant for not raising the discrepancy in the plaint inspite
of settlement of relevant issues - In terms of proviso to 0. 6
r. 17, amendment after commencement of trial is barred unless
Court came to the conclusion that the party could not have E
raised the matter inspite of due diligence before the
commencement of trial - Tl'fough refraining to make any
pronouncement as to exactly when the trial can be said to have
commenced, the Court held that the amendment was
~
necessary for the purpose of bringing to the fore the real F
question in controversy between the parties and refusal to
permit the amendment would create complications at
execution stage in case plaintiff succeeds in the suit - Hence,
allowed - It is open to respondent to make corresponding
amendment in the written statement, if so desired.
G
i Appellant filed a suit seeking permanent injunction
against respondents-defendants restraining them from
interfering with her rights over the suit property and
further directing them not to build or demolish the building
795 H
796 SUPREME COURT REPORTS [2008] 1 S.C.R.
A already existing on the suit land. The description of the
suit premises was given in the Schedule to the plaint. The
defendant-respondents raised objection to the description
of the suit property as given in the Schedule. Later, the
appellant-plaintiff filed a Misc. Petition under Order 39, Rule
B 2(A) read with Section 151 C.P.C. In that proceeding, the
husband of the plaintiff was examined as one of the
witnesses, and he stuck to the stand that the disputed
property was correctly described in the plaint. However, )>
"
later an amendment petition was filed by the plaintiff
c stating that due to inadvertence the suit land was wrongly
described in the Schedule to the plaint. The petition was
rejected by the trial Court holding that the plaintiff inspite
of due diligence could not have raised this discrepancy
in the plaint after nearly 2 years of the settlement of the ..
issues and after witnesses have been examined on oath
D
in a Misc. Case. Aggrieved by the order of the trial court, a
writ petition was filed by the plaintiff, which was dismissed
by the High Court. Hence the present appeal.
Appellant contended that the proviso to rule would
E come into play only after the commencement of trial and
in this case the trial court was in error in rejecting the
appellant's prayer invoking Jhe due diligence clause in
the proviso; that neither the framing of issues nor the
proceedings of Misc. case could be taken as commence-
F ment of trial; that the prayer for amendment was made at
the pre-trial stage and, therefore, the prayer should have
been allowed in terms of unamended r.17 of 0.6.
Respondents submitted that the plaintiff-appellant
had obtained interim injunction against the defendants
G in regard to the property as described in the plaint and
the proposed amendment made it manifest that the
defendants were made to suffer injunction for a long time
with regard to their own property; that on the plaintiffs
own showing the suit in its present form was bound to
H fail and the permission to amend the plaint would,
USHA DEVI v. RIJWAN AHAMD & ORS. 797
therefore, amount to giving an undue advantage to him; A
t that the proposed amendment would not only change the
suit property but would also change the cause of action
and would thus render the suit not maintainable in any
event; and that the prayer for amendment was made after
the commencement of the trial. B
Allowing the appeal, the Court
HELD: 1.1 In its amended form, 0. 6 R. 17 ·of Civil
Procedure Code carries a proviso that bars any
amendment after the commencement of trial unless the C
court came to the conclusion that inspite of due diligence
the party could not have. raised the matter before the
commencement of trial. {Para - 5) [801-F]
1.2 The trial court found and held that there was
singular lack of due diligence on the part of the appellant- o
plaintiff inasmuch as the wrong description of the suit
property was pointedly brought up by the defendants not
only in the written statement but also in course of the
-l proceedings of the Misc. Case. (Para - 6) [801-G]
-;
2.1 In view of the decision of this Court in the case of E
Sajjan Kumar, the instant appeal deserves to be allowed.
(Para - 10) [805-C]
2.2 It is clarified that order of this Court does not
venture to make any pronouncement on the larger issue
as to the stage that would mark the commencement of trial F
of a suit but this Court found that the appeal in hand is
closer on facts to the decision in Sajjan Kumar and
following that decision the prayer for amendment in the
present appeal should also be allowed. (Para - 10) [805-D]
G
Sajjan Kumar vs. Ram Kishan (2005) 13 SCC 89 -
.. i relied on.
Ajendraprasadji N.Pandey & Anr. vs. Swami
Keshavprakeshdasji N. & Ors. (2006) 12 SCC 1 - held
inapplicable. H
798 SUPREME COURT REPORTS (2008) 1 S.C.R.
A 2.3 It will be open to the defendants-respondents to
raise their objection in regard to the amended plaint by
making any corresponding amendments in their written
statement. (Para - 11) [805-F]
2.4 As to the submission of the respondents that as
8 a result of the description of the suit property in the plaint
the defendants-respondents had to suffer injunction
against their own property, ends of justice would meet by
).
allowing the proposed amendment subject to a cost of
Rs.10,000/-. (Para - 12) [805-G & HJ
c
2.4 The appellant is allowed to make the proposed
amendment in the plaint subject to payment of Rs.10,000/-
as cost to the respondents-defendants. (Para - 12)
[806-A]
D CIVILAPPELLATE JURISDICTION: Civil Appeal No. 481
of 2008.
t---
From the Judgment and final Order dated 13. 7 .2006 of
the High Court of Jharkhand at Ranchi in W.P. (C) No. 2325 of
2006.
~-
E
Devashish Bharuka, Hansa Bharuka, Abhiseke Mohan
.._
Sinha and Dr. Sushi! Balwada for the Appellant.
S.R. Sharma and S. Balaji for the Respondents.
l
F The Judgment of the Court was delivered by )....
AFTAB ALAM, J. 1 Leave granted.
2 This appeal is directed against the order dated July 13,
2006, passed by the High Court in W.P.(C) No.2325 of 2006. It
--
G
is a brief and non-speaking order by which the High Court
dismissed the writ petition and affirmed the order passed by ~
the trial court which, in turn, had rejected the appellant's petition +-
under Order 6, Rule 17 of the Code of Civil Procedure ('CPC'
for short) for amendment of the suit property as described in
the Schedule to the plaint.
H
USHA DEVI v. RIJWAN AHAMD & ORS. 799
[AFTAB ALAM, J.]
t 3 The material facts are brief and simple. In the year 2002, A
the appellant filed a suit, inter alia, seeking permanent injunction
restraining the respondents-defendants from interfering with her
rights over the suit property and further directing them not to
build or demolish the building already existing on the suit land.
In the Schedule to the plaint, the description of the suit premises B
was given as follows :
~
_,, "Southern half portion of measuring an area of 1937.97
sq.feet = 0.04.448 acres or 0.04.9120 acres bearing at
present holding Nos.304, before that 275 and presently
201, Ward No.IV(Old) New 13, of GiridihMunicipality c
having double storied house together the land over which
it stands bounded as follows :-
xxx xxx xxx xxx
xxx xxx xxx xxx D
xxx xxx xxx xxx"
The defendant-respondents filed their written statement in
which objection was especially taken to the description of the
suit property as given in the plaint. On behalf of the respondents E
it was stated that the area of land that might possibly be the
subject matter of any dispute was much smaller and the plaintiff
had described properties lawfully belonging to them as the suit
property. No rejoinder to the written statement was filed on behalf
of the plaintiff and on the basis of the pleadings issues were F
framed on August 13, 2002. Thereafter, the proceedings in the
suit remained in abeyance but on August 5, 2002, the appellant-
plaintiff filed a Misc. Petition under Order 39, Rule 2(A) read
with Section 151 C.P.C. (registered as Misc.Case No.28/2002)
for alleged breach of an interim injunction earlier granted in her G
favour. In that proceeding, the husband of the plaintiff was
- -t examined as one of the witnesses. In course of his cross-
examination, it was repeatedly put to him that he did not have
any idea of the suit land and that he would not claim all the area
mentioned in the Schedule to the plaint but the plaintiffs claim
H
800 SUPREME COURT REPORTS [2008] 1 S.C.R.
A would be only over one decimal of land. It was also suggested
to him that the rest of the land admittedly belonged to the
defendants and further that any alleged dispute between the
parties could only be over a very limited area and not the entire
property as stated in the Schedule to the plaint. The witness
s (the appellant's husband), however, denied the suggestions
made on behalf of the defendants and stuck to the stand that
the disputed property was correctly described in the plaint and •
that was the subject matter of the suit. Later, on September 29, ~
2004, the amendment petition was filed that gives rise to the
c present appeal. In the amendment petition it was stated that
due to inadvertence the suit land was wrongly described in the
Schedule to the plaint and the mistake required to be corrected.
It was further stated that, as a matter of fact, one decimal
equivalent to 9 chhatak by standard measurement, i.e., 414
square feet of land (along with some structure) was the subject
0
matter of the suit. Accordingly, it was prayed that from the
description of the suit property in the plaint the opening words
"southern half portion of measuring an area of 1937.97 square
feet =
0.04.448 acre or 0.04.9/20 acres" be deleted and
substituted by the following :
E
"1 decimal (one decimal) equivalent to about 9 chhatak
(Nine chhatak) by standard measurement that is 414
square feet land alongwith old double storied house
consisting of four rooms, two rooms in ground floor and
F two rooms in first floor and one verandah towards west
that is in road side covered with cogurated sheet, a stair
case for going to upper floor rooms." bearing at present
holding number No.304 ....... ..
4 The trial court rejected the petition by order dated
G February 2, 2006, observing as follows :
"As such it cannot be said that plaintiff in spite of due + -
diligence could not have raised this discrepancy in the
plaint prior to 29.09.04 i.e. after nearly 2 years of the
settlement of the issues and after witnesses have been
H
USHA DEVI v. RIJWAN AHAMD & ORS. 801
[AFTABALA.M, J.]
t examined on oath in the Misc.Case 28/2002 arising out A
of T.S.58/2002.
"Hence it is clear that the plaintiff in spite of ample
opportunity to have corrected the discrepancy in the
Schedule of the plaint did not care to remove the same
B
instead kept of (sic) insisting and asserting the
correctness of the land and boundary mentioned i.n the
I(
Schedule."
-.+,
The order of the trial court was challenged before the High
Court in a writ petition which was dismissed with the observation c
that there was no illegality in the impugned order.
5 Amendment of pleadings used to be one of the easiest
things in the course of judicial proceedings before the
amendments came to be made in the C.P.C. in the year 1999.
It was felt that the provision for amendment of pleadings (Order D
6, Rule 17) was greatly abused and it was one of the significant
sources of delay in the judicial process. Accordingly, as per the
recommendation of the Law Commission, the provision for
amendment of pleadings was altogether deleted by Act 46/
1999. The deletion of the provision led to widespread protests E
by lawyers and different legal bodies and as a result the
provision was once again introduced, albeit with a rider, by Act
22/2002, with effect from July 1, 2002. In its amended form,
Rule 17, Order VI carries a proviso that bars any amendment
after the commencement of trial unless the court came to the F
conclusion that in spite of due diligence the party could not have
raised the matter before the commencement of trial.
6 As noted above, the trial court found and held that there
was singular lack of due diligence on the part of the appellant-
plaintiff inasmuch as the wrong description of the suit property G
. -t was pointedly brought up by the defendants not only in the written
statement but also in course of the proceedings of the
Misc: Case.
7 Mr.Devashish Bharuka, learned counsel appearing on
H
802 SUPREME COURT REPORTS [2008] 1 S.C.R.
A behalf of the appellant, submitted that the proviso to rule would
come into play only after the commencement of trial and in this
case the trial court was in error in rejecting the appellant's prayer
invoking the due diligence clause in the proviso. Learned
counsel further submitted that neither the framing of issues nor
B the proceedings of Misc. case could be taken as
commencement of trial. The prayer for amendment was made
at the pre- trial stage and hence, the prayer should have been
allowed without difficulty as was the position under the
unamended Rule 17.
C 8 Mr.S.R.Sharma, learned counsel appearing for the
respondents-defendants, on the other hand, submitted that the
plaintiff-appellant had obtained interim injunction against the
defendants in regard to the property as described in the plaint
and now the proposed amendment made it manifest that the
D defendants were made to suffer injunction for a long time with
regard to their own property. The prayer for amendment,
according to him, was fit to be rejected on that ground alone
and allowing the prayer would be quite unreasonable, unjust and
unfair. He further submitted that on the plaintiffs own showing
E the suit in its present form was bound to fail and the permission
to amend the plaint would, therefore, amount to giving an undue
advantage to the plaintiff. He further submitted that the proposed
amendment would not only change the suit property but would
also change the cause of action and would thus render the suit
F not maintainable in any event. He lastly submitted that the prayer
for amendment was made after the commencement of the trial
and the trial court had, therefore, rightly rejected the prayer. He
maintained that the trial of the suit would commence with the
settlement of the issues. In support of the submission that
G the framing of the issues marked the commencement of
trial of the suit, Mr.Sharma, relied upon the decision of this
Court in Ajendraprasadji N.Pandey & Anr. Vs. Swami
Keshavprakeshdasji N. & Ors. [2006 (12) SCC 1]. In paragraph
57 of the decision, it was observed as follows :
H "It is submitted that the date of settlement of issues is the
USHA DEVI v. RIJWAN AHAMD & ORS. 803
[AFTAB ALAM, J.]
t date of commencement of trial. (Kailash v. Nanhku [2005 A
4 SCC 480]) Either treating the date of settlement of
issues as date of commencement of trial or treating the
filing of affidavit which is treated as examination-in-chief
as date of commencement of trial, the matter will fall under
proviso to Order 6 Rule 17 CPC. The defendant has, B
therefore, to prove that in spite of due dillgence, he could
not have raised the matter before the commencement of
+ trial. We have already referred to the dates and events
very elaborately mentioned in the counter-affidavit which
proves lack of due diligence on the part of the defendants c
1 and 2 (the appellants)."
From the above-quoted passage, it appears that the
decision did not hold that settlement of issues marks the
commencement of trial. Earlier in the decision, the court
exhaustively examined the proceedings from date to date and D
on that basis came to hold and find that the prayer for
amendment was made after the commencement of trial.
9 Mr.Bharukha, on the other hand, invited our attention to
another decision of this Court in Baldev Singh & Ors. Vs. E
Manohar Singh & Anr. [2006 (6) SCC 498]. In paragraph 17 of
the decision, it was held and observed as follows :
"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 F
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 G
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
H
804 SUPREME COURT REPORTS [2008] 1 S.C.R.
A 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
B unfettered discretion to the court to allow an amendment
of the written statement at any stage of the
proceedings."
,,
Mr.Bharukha also invited our attention to a three-Judge
Bench decision of this Court in Sajjan Kumar vs. Ram Kishan
C [2005 (13) SCC 89]. In this decision too the proposed
amendment related to correction of the description of the suit
premises in the plaint. The amendment was sought on the plea
that the description of the property given in the rent note itself
was incorrect and the same description was repeated in the
D plaint and there would be complications at the stage of execution
to avoid which the description of the suit premises as given in 1o--
the plaint needed to be corrected. Another similarity with the
case in hand was that the prayer for amendment was opposed
by the defendant-respondent on the principal ground that
E although the defendant had taken the plea in the written
statement itself that the suit premises were not correctly
described, yet the plaintiff-appellant proceeded with the trial of
the suit and did not take care to seek the amendment at an
early stage. The trial court rejected the prayer for amendment
F and the High Court dismissed the civil revision against the order ;._
of the trial court. Allowing the prayer for amendment this Court
in paragraph 5 of the decision obseNed as follows :
"Having heard the learned counsel for the parties, we are
satisfied that the appeal deseNes to be allowed as the
G trial court, while rejecting the prayer for amendment has
failed to exercise the jurisdiction vested in it by law and by +
the failure to so exercise it, has occ<Jsioned a possible
failure of justice. Such an error committed by the trial court
was liable to be corrected by the High Court in exercise
H of its supeNisory jurisdiction, even if Section 115 CPC
USHA DEVI v. RIJWAN AHAMD & ORS. 805
[AFTAB ALAM, J.]
i· would not have been strictly applicable. It is true that the A
plaintiff-appellant ought to have been diligent in promptly
seeking the amendment in the plaint at an early stage of
the suit, more so when the error on the part of the plaintiff
was pointed out by the defendant in the written statemerit
itself. Still, we are of the opinion that the proposed B
amendment was necessary for the purpose of bringing
.. to the fore the real question in controversy between the
jo,
parties and the refusal to permit the amendment would
create needless complications at the stage of the
execution in the event of the plaintiff-appellant c
succeeding in the suit."
1O In view of the decision in Sajjan Kumar, we are of the
view that this appeal too deserves to be allowed. We may clarify
here that in this order we do not venture to make any
pronouncement on the larger issue as to the stage that would D
mark the commencement of trial of a suit but we simply find that
the appeal in hand is closer on facts to the decision in Sajjan
Kumar and following that decision the prayer for amendment in
the present appeal should also be allowed.
E
11 As to the submission made on behalf of the respondents
that the amendment will render the suit non-maintainable
because it would not only materially change the suit property
but also change the cause of action it has only to be pointed out
that in order to allow the prayer for amendment the merit of the
-~
amendment is hardly a relevant consideration and it will be open F
to the defendants-respondents to raise their objection in regard
to the amended plaint by making any corresponding
amendments in their written statement.
12 The counsel for the respondents also submitted that as
G
a result of the description of the suit property in the plaint the
defendants-respondents had to suffer injunction against their
own property. We feel that the ends of justice would meet by
allowing the proposed amendment subject to a cost of
Rs.10,000/-.
H
806 SUPREME COURT REPORTS [2008] 1 S.C.R.
A 13 This appeal is accordingly allowed. The orders of the +
trial court and High Court are set aside and it is directed that
the appellant may be allowed to make the proposed
amendment in the plaint subject to payment of Rs.10,000/-
as cost to the respondents-defendants. The amendment will
B be allowed in case thi:i amount of cost is paid within two
months from today.
S.K.S. Appeal allowed.
'f -
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