Rajes Kumar, J.
1. By means of present writ petition, petitioner has challenged the order dated 18.12.2003, passed by District Judge. Varanasi in Civil Revision No. Nil of 2003, Mehandi Hasan v. Abdul Yatin, filed against the order of the IIIrd Additional Civil Judge (Junior Division), Varanasi dated 1.12.2003, by which amendment application of the petitioner/defendant has been rejected. District Judge, Varanasi upheld the order of the Illrd Additional Civil Judge (Junior Division), Varanasi.
2. Respondent No. 1 has filed a suit for permanent injunction against the petitioner and others for restraining them from opening any door or window on the wall and the galiyaras in dispute not be used as rasta and they may also be restrained from damaging sewer situated in the land in dispute. Respondents No. 3 and 4 have alleged themselves to be the owner and in possession of the disputed galiyara. The suit filed by the respondents No. 3 and 4, was registered as Original Suit No. 46 of 1988 before Munsif City. Varanasi. Petitioner filed written statement on 3.10.1991. Thereafter amendment application was moved on 4.10 2001. The aforesaid amendment application has been rejected on the ground that the facts mentioned in the amendment application were available at the time of filing of written statement and the amendment application was moved after a long time. Civil Judge. (Junior Division), Varanasi was of the view that the permission to allow the amendment under Order VI, Rule 17, C.P.C. may not be justified. District Judge has rejected the revision on the ground that perusal of the application shows that by way of amendment, petitioner wanted to amend, that the property in dispute does not lie in plot No. 26/255. The disputed portion shown by letters A, B, C and D lies out of plot No. 26/255. This is a fact for which it cannot be said that the revisionist were not aware about it before the commencement of the trial. Perusal of the record shows that the issues were framed on 30.7.1997 and case was running for evidence of the parties and in the meantime, amendment application was moved on 4.10.2001. Thus, it is clear that the amendment application was moved after the commencement of the trial and according to the District Judge after amendment of the provisions of Order VI, Rule 17, C.P.C. the amendment cannot be allowed after the commencement of the trial unless Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. While in the present case it is apparent that if the revisionist have applied due diligence, they could have moved the above amendment application before the commencement of the trial. Accordingly, revision was dismissed.
3. Heard learned Counsel for the parties.
4. Learned Counsel for the petitioner submitted that by the amendment the nature of the defence has not been changed and only factual position has been incorporated. He submitted that both written statement as well as amendment application have been moved prior to the date of the insertion of the proviso to Order VI, Rule 17. C.P.C., which was added w.e.f. 1.7.2002 by Act No. 22 of 2002. He submitted that by Act No. 22 of 2002 it has been clarified that the amendment made in Order VI, Rule 17. C.P.C. does not apply to the cases commenced before the amendment. Learned Counsel for the petitioner submitted that written statement was filed on 3.10.1991 and the amendment application was moved on 4.10.2001, almost after ten years. He submitted that the amendment sought to be made was within the knowledge of the petitioner at the time of filing of the written statement itself and the amendment application has been moved Just to delay the proceedings, after the commencement of the trial and, therefore, amendment has been rightly rejected.
5. Having heard learned Counsel for the parties.
6. Before the amendment, Order VI. Rule 17 of the Code of Civil Procedure reads as follows:
Order VI. Rule 17. C.P.C.- 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 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.
7. Thereafter, by way of amendment, the following has been substituted w.e.f. 1.7.2002:
Order VI. Rule 17, C.P.C.- 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 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 allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
8. Section 16(2)(b) of the amending Act, 2002 reads as follows:
The provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act.
9. Admittedly, in the present case, the written statement and amendment application have been moved prior to the date of the amendment and, therefore, amended provision of Order VI, Rule 17, C.P.C. is not applicable in view of Section 16(2)(b) of Act No. 22 of 2002.
10. Order VI, Rule 17 has been interpreted by the Hon'ble Supreme Court in various decisions and the Apex Court has given guidelines for the law Courts that the Courts while deciding such prayers should not adopt a hypertechnical view. Aforesaid guidelines have been given by the Apex Court in B.K. Narayan Pillai v. Parameswaran Pillai : AIR2000SC614 , it has also been emphasized in the aforesaid decision that technicalities of law should not be permitted to hamper the Court in administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled multiplicities of litigation.
11. In the case of Ragu Thilak D. John v. S. Rayappan : AIR2001SC699 . The suit was filed against the respondent for permanent injunction restraining them from demolishing his compound wall. It has been alleged that during the pendency of the suit, respondents entered his property and demolished the wall on northern, eastern and western sides. The appellant filed the application for amendment of the plaint including incorporation of relief of recovery of damages. The trial court rejected the application and the revision filed against that order was dismissed by the High Court. The Apex Court observed as follows:
In view of the subsequent developments, the appellant filed an application under Order VI, Rule 17 for the amendment of the plaint for adding paras 8 (a) to 8 (f) in his plaint. The trial court rejected his prayer and the revision petition filed against that order was dismissed by the High Court vide order impugned in this appeal, mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed, as it would allegedly change the nature of the suit. It was also observed that the amendment sought was barred by limitation.
After referring to the judgment in Charan Das v. Amir Khan AIR 1921 PC 50 ; L. J. Leach and Co. Ltd. v. Jardine Skinner and Co. AIR 1957 ; Ganga Bai v. Vijay Kumar : 3SCR882 ; Ganesh Trading Co. v. Moji Ram : 2SCR614 and various other authorities, this Court in B.K. Narayana Pillai v. Parameswaran Pillai AIR 2001 SC 614 : (2001) 1 SCC 712, held : (SCC p. 715, para 3).
The purpose and object of Order VI, Rule 17, C.P.C. is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the Interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter or right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other . side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of Justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.
If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8 (1) of the plaint which were sought to be Incorporated by way of amendment. We feel that in the circumstances of the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.
12. The aforesaid decision of the Apex Court has been followed by this Court in the case of Fertilizer Corporation of India Ltd v. Prabha Kirana Stores (supra).
13. A Constitution Bench of the Hon'ble Supreme Court in the case of Municipal Corporation of Greater Bombay v. Lala Pancham and Ors. : 1SCR542 , observed that even the Court itself can suggest the amendment to the parties for the reason that main purpose of the Court is to do justice, and therefore, it may invite the attention of the parties to the defects in the pleadings, so that they can be remedied and the real issue between the parties may be tried. However, it should not give rise to entirely a new case.
14. In the case of Jagdish Singh v. Natthu Singh : AIR1992SC1604 , the Hon'ble Supreme Court held that the Court may allow to certain extent even the conversion of the nature of the suit, provided it does not give rise to entirely a new cause of action. An amendment sought in a plaint filed for specific performance may be allowed to be done without abandoning the said relief but amendment seeking for damages for breach of contract may be permitted.
15. In the case of G. Nagamma and Ors. v. Siromanamma and Anr. : (1996)2SCC25 , the Hon'ble Apex Court held that in an application under Order VI, Rule 17, even an alternative relief can be sought; however, it should not change the cause of action or materially affect the relief claimed earlier.
16. In the case of Vineet Kumar v. Manga Sain Wadhera : 2SCR333 , the Hon'ble Supreme Court held that normally amendment is not allowed, the changes the cause of action, but where the amendment does not constitute the addition of a new cause of action, or raises a new case, but amounts to not more than adding to the facts already on record, the amendment should be allowed even after the statutory period of limitation.
17. Similarly, in the case of Om Prakash Gupta v. Ranbir B. Goyal : 1SCR359 , the Hon'ble Supreme Court reiterated the same view extending the scope of Order VI, Rule 17 of the Code, observing that amendment should not disturb the relevant rights of the parties those existed on the date of institution of a suit, but subsequent events may be permitted to be taken on record in exceptional circumstances if necessary to decide the controversy' in issue. The Court held as under:
Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take Judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter cases, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their Impact, is expected to have resort to amendment of pleadings under Order VI, Rule 17, C.P.C. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan and Co. v. R.M.N.N. Nagappa Chettiar : 4SCR789 , this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be founded; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Stta Ram Kesho (1988) 25 IA 195 (PC). Their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.
18. In the case of Muni Lal v. Oriental Fire and General Insurance Co. Ltd. : AIR1996SC642 , the Hon'ble Apex Court held that the relief of amendment should be granted to 'render substantial justice without causing injustice to the other party or violating fair play and the Court should be entitled to grant proper relief even at the stage of appellate forum.' Similar view has been reiterated in Jagdish Singh v. Natthu Singh : AIR1992SC1604 .
19. In the case of Smt. Ganga Bai v. Vijay Kumar : 3SCR882 , the Hon'ble Supreme Court observed as under:
The power to allow an amendment is undoubtedly wide and may, at any stage, be properly exercised in the interest of justice, the law of limitation notwithstanding, but the exercise of such far-reaching discretionary power is governed by judicial consideration and wider the discretion, greater ought to be care and circumspection on the part of the Court.
20. In the case of Ganesh Trading Co. v. Maoji Ram : 2SCR614 , the Hon'ble Supreme Court observed that where amendment is found to be necessary for promoting the ends of justice and not for defeating it, the application should be allowed. Similar view had been reiterated in B.K.M. Pillai v. P. Pillai and Anr. : AIR2000SC614 .
21. In the case of Estrella Rubber v. Dass Estate Pvt. Ltd. : AIR2001SC3295 , the Supreme Court held that mere delay in making the amendment application is not enough to reject the application unless a new case is made out, or serious prejudice is shown to have been caused to the other side so as to take away any accrued right.
22. In the case of Jayanti Roy v. Dass Estate Pvt. Ltd. : AIR2002SC2394 , the Apex Court held that if there is no material inconsistency between the original averments and those proposed by the amendment, application for amendment should be allowed. However, the application should be moved at a proper stage. Application filed at unduly delayed stage should normally be rejected.
23. In the case of Sampat Kumar v. Ayyakannu and Anr. : SUPP2SCR397 . the Hon'ble Supreme Court held that any amendment seeking to introduce a cause of action, which arose during pendency of the suit, may be permitted in order to avoid multiplicity of suit. But, it should not change the basic structure of the suit. More so, Court should be liberal to allow amendment at the time of pre-trial of a suit but must be strict and examine the issue of delay where the application for amendment is filed at a much belated stage of commencement of the trial.
24. in the case of Nagappa v. Gurudayal Singh and Ors. : AIR2003SC674 , the Hon'ble Supreme Court held that amendment can be allowed even at an appellate stage in a case where law of limitation is not involved and the facts and circumstances of the particular case so demands, in order to do justice with the parties. The case involved therein had been under the provisions of Sections 166, 168 and 169 of the Motor Vehicles Act, 1988 and as the Act does not provide for any limitation for filing the claim petition, the amendment at appellate stage was allowed.
25. In the case of Hanumant Singh Rawat v. Rajputana Automobiles, Ajmer (1993) 1 WLC 625, Rajasthan High Court summarized the legal position as under:
(i) That the amendment of pleadings should ordinarily be allowed by the Court, once it is satisfied that the amendment is necessary for the just and proper decision of the controversy between the parties ;
(ii) The amendment of the pleadings should not ordinarily be declined only on the ground of delay on the part of the appellant in seeking leave of the Court to amend the pleadings, if the opposite party can suitably be compensated by means of costs etc. Even Inconsistent pleas can be allowed to be raised by amendment in the pleadings ;
(iii) However, amendment of pleadings cannot be allowed so as to completely alter the nature of the suit ;
(iv) Amendment of the pleadings must not be allowed when amendment is not necessary for the purpose of determining the real questions in the controversy between the parties ;
(v) The amendment should be refused where the plaintiffs suit would be wholly displaced by the proposed amendment;
(vi) Where the effect of the amendment would be to take away from the defendant a legal right which has occurred to him by lapse of time or by operation of some law ;
(vii) The amendment in the pleadings should not be allowed where the Court finds that amendment sought for has not been made in good faith or suffers from lack of bonafides ; and
(viii) Ordinarily, the amendment must not be allowed where a party wants to withdraw from the admission made by it in the original pleadings.
26. In the case of Devendra Mohan and Ors. v. State of U.P. and Ors : 2004(3)AWC2162 , the Division Bench of this Court on consideration of various decisions of the Apex Court held as follows:
Thus, in view of the above, the law can be summarized that amendments should be allowed if an application is moved at a pre-trial stage, and even at a later stage if the party wants to introduce the facts in respect of the subsequent development as it would be necessary to avoid the multiplicity of the proceedings. The amendment is not permissible if the very basic structure of the plaint is changed or the amendment itself is not bona fide. In case the facts were in the knowledge of the party at the time of presenting the pleadings, unless satisfactory explanation is furnished for not introducing those pleading at the initial stage, the amendment should not be allowed. Amendment should also not be permitted where it withdraws the admission of the party or the amendment sought is not necessary to determine the real controversy involved in the case.
27. It is true that the amendment should be moved within the reasonable time and not with the intent to delay the proceedings. In the present case amendment has been filed after ten years from filing of the written statement but at the same time it is seen that the amendment has been filed when the process of evidence has been started. Thus, filing of the amendment application after ten years would not make any difference and even if the amendment would have been incorporated, it would not amount to causing any delay in the proceedings.
28. However, having regard to the entire facts and circumstances of the case, writ petition is allowed on the payment of cost of Rs. 10,000. In case if cost is paid within one month, amendment application stand allowed. Both the parties shall appear before the trial court on 22.5.2006, alongwith certified copy of the order. Trial court may allow the petitioner to incorporate the amendment and may fix the date for further proceedings. Trial court is directed to decide the suit expeditiously preferably within a period of six months.