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Madhusudan Ltd. Vs. South Asia Ind. P. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 360 of 1973
Judge
Reported in1974RLR326
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantMadhusudan Ltd.
RespondentSouth Asia Ind. P. Ltd.
Advocates: M.L. Bhargav and; Madan Lal, Advs
Excerpt:
.....the amendment - - it may also be said that the court has failed to exercise the jurisdiction vested in it by law. 10 allows the impleading of necessary as well as proper parties. the application made on the 10th of november, 1972 under order 6 rule 17 was allowed on the basis that it complied with the requirements of law inasmuch as it precisely indicated the amendments sought in the various paragraphs of the existing written statement......court is to allow all such amendments which may be necessary for the purpose of determining the real questions in controversy between the parties. in its composition the provision requires that while dealing with the proposed amendments the court will find for itself as to which of them are such which may be allowed to be made as a matter of necessity for determining the teal questions in controversy and which of them are those which may be properly allowed in the interest of justice and propriety to have a true and complete picture of the litigation on the record. (4) the words 'and all such amendments shall be made'' indicate that the amendments which may be permitted will be of two kinds. all amendments sought through the application made under order 6 rule 17 will have to bear.....
Judgment:

P.S. Safeer, J.

(1) This petition is directed against the order made by Shri O.P. Dwivedi, Sub Judge 1st Class, Delhi on the 8th of February, 1973 by which the allowed respondent No. 1's application dated the 10th of November, 1972 filed under order 6 rule 17 of the Civil Procedure Code. That Provision, is : (-)

(2) The provision falls in two parts. The first part gives the Court the power to allow either party to alter or amend the pleadings in such manner and on such terms as may be just. If the exercise of jurisdiction is confined to that part the Court has to discuss the proposed amendments and has to support its conclusions by determining what would be just to permit the amendment or the amendments which may have been sought to be introduced.

(3) The second part in the aforequoted provision is imperative in nature. The Court is to allow all such amendments which may be necessary for the purpose of determining the real questions in controversy between the parties. In its composition the provision requires that while dealing with the proposed amendments the Court will find for itself as to which of them are such which may be allowed to be made as a matter of necessity for determining the teal questions in controversy and which of them are those which may be properly allowed in the interest of justice and propriety to have a true and complete picture of the litigation on the record.

(4) The words 'and all such amendments shall be made'' indicate that the amendments which may be permitted will be of two kinds. All amendments sought through the application made under order 6 rule 17 will have to bear relationship with the subject matter in controversy. The Court will have to determine which of them are necessary for determining the real questions in controversy between the parties. Once the finding is recorded that out of the amendments sought some of them fall within the category of 'all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties', the Court will have to imperatively exercise the jurisdiction to permit the introduction of those amendments. The judicial mind must keep in view the provisions of similar nature occurring elsewhere in various statues. The first part in Order 6 Rule 17 gives wide discretion. The second part contains a prohibition and no amendment which may be necessary for the purpose of determining the real questions in controversy can be disallowed. If the Court disallows such amendment then the order may amount to an illegal exercise of jurisdiction. It may also be said that the Court has failed to exercise the jurisdiction vested in it by law. Situations arise where the Court have to exercises jurisdiction such as is furnished by order 41 rule 27 or order 14 rule 5 of the Civil Procedure Code. The Court can on its own require additional evidence , it finds that in order to make a complete adjudication it requires additional evidence. The Court may at a given stage find that the issues already framed have to be altered or added to Acting within the opening part of order 6 rule 17 in the peculiar circumstances of a litigation the Court may allow either party not only to amend but also to alter his pleadings in such manner and on such terms as may be just in order to have on its record all the features of a litigation.

(5) The Civil Procedure Code by O.1,R. 10 allows the impleading of necessary as well as proper parties. Order 6 rule 17 allows that proper amendements may also be allowed to be made. In the case of amendments which may be necessary for settling the real questions in controversy in a litigation no choice is left with the Court. In the case of amendments which may be only just and proper the provision leaves discretion to the Court and when that is exorcised the Court has to give its reasons why proper amendments are being permitted. Out of the amendments proposed the Court has to separate the amendments which may be necessary to determine the real questions in controversy between the parties, and those have in any case to be allowed. The Court may also allow the introduction of proper amendments. It may reject the introduction of those amendments which may be superfluous and unrelated to the litigation. In all eventualities while disposing of an application under order 6 rule 17 the Court would be under an obligation to discuss the nature of the proposed amendments and will have to record its reasons for permitting or rejecting them.

(6) THE. impugned order mentions that the defendants had made an earlier application which was repugnant to the amendment added to rule 17 in order 6 of the Civil Procedure Code inasmuch as it had not been stated in the application as to which precise amendment was to be made in a particular paragraph of the written statement. The application made on the 10th of November, 1972 under order 6 rule 17 was allowed on the basis that it complied with the requirements of law inasmuch as it precisely indicated the amendments sought in the various paragraphs of the existing written statement.

(7) A reference to the application which has been allowed discloses that the plaintiff had instituted a suit for the recovery of Rs. 3,562.50 against the defendants. The respondent before me was defendant No. 1 to the suit. It is this application which has been allowed by the impugned order. The written statement which was originally filed by respondent No. 1 was dated the 18th of May, 1961. After trying the suit it was disposed of by a Sub Judge on the 13th of March, 1962 in terms of the decree made on that date. Defendant No. 1 filed an appeal against that decree. The said appeal was dismissed on the 6th of October, 1965. Thereafter defendant No. 1 i.e. the present respondent filed R.S.A. No. 97-D/66 in the High Court. By the judgment dated the llth of May 1972 an order of remand was passed which sent the parties back to trial. It was in that situation that defendant No. 1 had made the application for amending his written statement

(8) The trial Court should have imperatively discussed the proposed amendments and should have recorded reasons for allowing the written statement to be amended.


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