Amendment of plaint under Order VI Rule 17 of the CPC explained

Cause Title : Ganesh Prasad vs Rajeshwar Prasad, SLP (C) NO. 28377 OF 2018, Supreme Court Of India

Date of Judgment/Order : 14/3/2023

Corum : J. B. Pardiwala, J.

Citied: 

1. Revajeetu Builders and Developers v. Narayanaswamy & Sons and Others reported in (2009) 10 SCC 84
2. North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511
3. P.A. Jayalakshmi v. H. Saradha and Others reported in (2009) 14 SCC 525
4. B.K. Narayana Pillai v. Parameswaran Pillai and Another reported in (2000) 1 SCC 712
5. A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in AIR 1967 SC 96
6. Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another, Civil Appeal No. 5909 of 2022 dated 01.09.2022
7. Firm Sriniwas Ram Kumar v. Mahabir Prasad and Others reported in AIR 1951 SC 177
8. G. Nagamma and Another v. Siromanamma and Another reported in (1996) 2 SCC 25
9. Praful Manohar Rele v. Krishnabai Narayan Ghosalkar and Others reported in (2014) 11 SCC 316
10. Usha Balashaheb Swami and Others v. Kiran Appaso Swami and Others reported in (2007) 5 SCC 602
11. M/s. Ganesh Trading Co. v. Moji Ram reported in (1978) 2 SCC 91
12. State of Madhya Pradesh v. Union of India and Another reported in (2011) 12 SCC 268
13. The Gaya Municipality v. Ram Prasad Bhatt and Anr. in Civil Appeal No. 29 of 1965 decided on 8th September, 1967
14. Jay Cook v. Henry S. Gill reported in (1873) LR 8 CP 107
15. Deep Narain Singh v. Minnie Dietert and anr. reported in ILR (1904) 31 Cal 274 at p. 282 
16. Mohammad Khalil Khan and others v. Mahbub Ali Mian and others reported in AIR 1949 PC 78, the Privy Council 
17. Suraj Rattan Thirani and Others v. Azamabad Tea Co. Ltd. and Others reported in AIR 1965 SC 295
18. Ramachandra Kolaji Patil v. Hanmantha reported in ILR (1920) 44 Bom
19. Thakur Shankar Baksh v. Dya Shankar and Others reported in (1887) LR 15 IA 66
20. Vithal Rajaram Sutar and another v. Ramchandra Pandu Jadhav and others reported in AIR 1948 Bom 226
21. Bhaiya Raghunath Singh others reported in (1933-34) 61 IA 362, the Privy Council

Background

This appeal was filed against the order of Allahabad High Court permitting the original Plaintiffs (defendants herein) to amend the plaint under the provisions of Order VI Rule 17 of the Code of Civil Procedure, 1908.

As per the Defendants (plaintiffs herein)   the father of the Plaintiffs (mortgagor)  had executed a registered mortgage deed in 12.02.1957 in favour of the father of the Defendant in respect of 1/3rd portion of a suit property and was put in possession of the shop which remained till 2005. No rent was ever paid. Therefore as per Article 61A of the Schedule to the Limitation Act, 1963, as the mortgage was never redeemed, upon lapse of 30 years’ time period, the mortgagor’s right in the mortgaged property stood extinguished.

The Plaintiffs originally filed a suit under section 83 of the transfer of property act before the Civil Judge and subsequently filed an application seeking to amend the plaint under Order VI Rule 17 of the CPC. The Civil Judge vide order dated 20.05.2013, declined to allow the amendment but against a revision application, the Additional District Judge allowed the amendment. The challenge filed before the High Court by the Defendants against the order of the District Judge being dismissed, the Defendants filed this appeal. 

The objection of the Defendants were that the order of the High Court was a non-speaking order as no reasons have been assigned in the impugned order and the amendment has changed the entire nature of the suit.

Judgment

The Supreme Court agreeing with High Court observed that as per settle laws under Order VI Rule 17 of the Code of Civil Procedure, 1908, on the issue of amendment of plaint, the following points need to be remembered :-

• both the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement.
• 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.
•  It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.
• where the amendment does not constitute the addition of a new 'cause of action' or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation
• the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes
• a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended
• ‘cause of action’ referred above means a new claim made on a new basis constituted by new facts.
• a plaintiff is entitled to take alternative and inconsistent pleas in support of its case. Where alternative pleas arose to some extent from the admitted position of the defendant, such plea is not impermissible merely because it is inconsistent with the other plea.
• Order IX Rule 9 bars fresh suit in respect of the same cause of action in case the earlier suit was dismissed. Therefore, everything depends upon the cause of action and in case the subsequent cause of action arose from a totally different bunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX Rule 9 of CPC.