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Jawaharlal Mamtani Vs. Bhagchand Motumal Mamtani and anr. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 461 of 1980
Reported inILR1981Delhi1
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantJawaharlal Mamtani
RespondentBhagchand Motumal Mamtani and anr.
Advocates: Arun Mohan and; Raj Panjwani, Advs
Cases ReferredManindra ChandraNandi Bahadur v. Rangalal Mondal and
Excerpt: mere power of awarding costs--in appropriate cases it can be effective from a particular date.; the question for consideration before the larger bench was--; 'whether the court while allowing an amendment under order 6, rule 17 of the code of civil procedure, order that the amendment shall take effect from the date of the application for amendment and not from the date of the institution of the suit ?'; on behalf of the petitioner it was contended that the power of the court to allow an amendment of pleadings on such terms as may be just could not be restricted to merely awarding costs and that all the circumstances of terms on which amendment is permitted. on the other hand, the contention of the respondents was that once amendment the contention of the respondents was that..........will be equitable ornecessary to impose a term that the amendment would beeffective only from the date of application. the fact thatthe claim sought to be put in by way of amendment hassince become barred by time may not, by itself, be consideredsufficient to make the amendment prospective and if thatbe the solitary ground, the court perhaps may, as has beendone during the past several years, either decline the amendment or allow it to have the normal effect. but the court,in my opinion, has and should have the power to look. atall the circumstances and the nature of the amendmentsought for and then pass an appropriate order. i do notthink it can be laid down as a matter of principle andinvariable role that an amendment, once ordered, shouldrelate back to the date of the original.....

6, Rule 17 of the Code reads as under :

'THECourt may at any stage of the proceedingsallow either party to alter or amend his pleadings in such manner and on such terms as maybe just, and such amendments shall lie madeas may be necessary for the purpose of determining the real questions in controversy between the parties.'

IT is settled law that a case has to be decided on thebasis of the pleadings before a court. Order 6 Rule 17permits and amendment of the pleadings so that matterswhich for some reasons were not pleaded earlier, can bepleaded by amendment to enable the court to do justice. Itnaturally follows, and that is the usual rule. that onceamendment has been allowed it relates back to the date ofthe filing of the suit so that justice is done between theparties on full and proper pleadings. All the same, it isdifficult to subscribe to the view that an amendment inevery case must relate back only to the date of the suit.The reason is obvious. Courts, in order to do justice between the parties, some-times take subsequent events intoconsideration. The subsequent events that are taken intoconsideration would necessarily be those which have arisenafter the filing of the suit and, thereforee, could not obviouslybe pleaded when the suit was filed. For example, in a suitfor partition of a joint Hindu family properties if a propertyis allegedly acquired from joint family funds during thependency of the suit, the same will have to be included inthe suit for purposes of partition by an amendment. Itcould not be mentioned in the orignal suit as the propertywas not there at that time. The defendant may well take upa plea with regard to such property that it has been acquiredby his own funds and not joint family funds. The matterwill have to be decided on merits. But the status of theproperty has to be decided and for that purpose an amendment becomes necessary in the plaint and such an amendmentwill necessarily be effective from a future date and not thedate of the suit.

(3) It is also not correct that such situations have notarisen at any time between 1908 and 1970. They musthave arisen. If the counsel have been unable to cite cases,it may only show that there has not been enough research.Indeed, there is an old case reported as Manindra ChandraNandi Bahadur v. Rangalal Mondal and others, A.I.R.1918 Calcutta 443, (1) which we have found without sucheffort. In this case a suit for possession was filed withregard to certain chowkidari chakran lands on 3/03/1911. The plaint set out the resumed lands in a schedulecontaining 9 plots of land of an area of 26 bighas saidto be of the value of Rs. 305. On 16/08/1911 anapplication was made for amendment of the plaint whichwas allowed on 29/08/1911. The result of this orderwas that the suit became one for 59 plots instead of 9 plots ofan area of 69 bighas instead of 26 bighas and for lands ofthe value of Rs. 705 instead of Rs. 305. The question arosewhether the amended plaint did or did nor. include the landsset out in the schedule of the unamended plaint. TheSubordinate Judge observed that the plaintiffs struck outall the plots claimed at first and put in new plots altogetherof more value than that of plots claimed originally. In theappeal, thereforee, the first question that arose was toascertain whether the so called amended plaint included anylands as set out in the schedule to the unamended plaint.The next point which the Bench had to consider was asregards such lands as were added on 16/08/1911 andwere not included in the original plaint. If there were anysuch plots the question arose when the suit must be regardedas instituted qua those lands. It was contended that theamendment having been allowed, the suit must be regardedas having been instituted with regard to all the lands on 3/03/1911 when the plaint was originally presented.It was held that with regard to lands added by the amendment made in August, 1911 the suit must be deemed lohave been instituted on 16/08/1911.

(4) In Grain Panchayat , I. D. Dua, J. (as he then was) held that amendment in plaint normally relates back to the institutionof the suit except where question of limitation arises onaccount of new parties being imp leaded or new cause ofaction in regard to some other property being urged forrelief. thereforee, it cannot be said that such questionshave never arisen before or were never urged earlier. Indeed,the phrase 'in such manner and on such terms as may bejust' has to be given its natural meaning and cannot berestricted to only award of costs. Had that been thelegislative intent, we see no reason why the legislaturecould not have said so in plain language as is to be foundin clause (2) of Rule 1 of Order 17, Civil Procedure Code or Section 153 Civil Procedure Code .

(5) Learned counsel for the petitioner has citedseveral decisions in which amendment was allowed froma date subsequent to the date of the filing of the originalplaint . Noreasoning has, however, been given in any of these casesas to why the usual rule of amendment relating back to thedate of the suit was not followed. In the controversy was restricted to whether the order of amendment would relate back to the date of theapplication for amendment or would be effective from thedate on which the amendment was allowed. It was noticedthat no authority had been cited to show that where anapplication for amendment seeking to include some moreproperties is later on ordered, it is the date of the orderthat determines the question of lis pendens. It was observed that, 'So far as the doctrine of lis pendens is concerned.the proper view is that the order dates back to the date ofthe application for amendment. It is then that furtherimmovable properties were sought to be imp leaded in thesuit. An alienation made prior to the application will notbe affected, but from the date when the application foramendment was made, it must be held that the question oflis pendens applies. 'The delay caused by the Court inordering the application ought not to prejudice the parties

ANapplication for amendment is similar to the plaint....... .. .. .This role is based upon public policy that if analienation subsequent to the date of the plaint is allowed,the plaintiff will have to bring the alienee on record everytime such an alienation is made and there will be no endto litigation.'

(6) On behalf of the respondents it has been urged thatthere is no unlimited power in the court to permit amendment from any date it likes. According to learned counselthe rule on which amendment is to be allowed is wellsettled. Reference was made to. This is a case in which it was observedthat Courts would, as a rule, decline to allow amendments.if a fresh suit on the amended claim would be barred bylimitation on the date of the application. It was, however.observed that the above rule was only a. factor to be takeninto account in the exercise of the discretion as to whetheramendment should be ordered and did not affect the powerof the court to order it, if the amendment is required in theinterest of justice. The decision of the Privy Council in,was noticed with approval. The point as to whether theamendment should be allowed from the date of the originalsuit or a subsequent date was not considered. What waslaid down was that even a time-barred claim may be allowedto be included in the plaint if the justice of the matter sorequired. The question as to whether the defendant wouldbe adversely affected because the right to plead limitationwould thus be taken away was commented upon as an aspectleft to the discretion of the court. From these observationslearned counsel will have us conclude that even where time-barred claims are allowed to be included by amendment, theplea of limitation is almost nullified by the amendment willrelate back to the date of the suit. Reference was alsomade by learned counsel to.

(7) What was decided in Nichhalbhai Vallabhai's casewas that amendment should be allowed to avoid multiplicityof suits. This was a case where it was contended that byamendment the plaintiff had converted his original suit intoanother of a different and inconsistent character. TheSupreme Court after holding that the High Court rightlyuphold the amendment observed that the amendment wasnecessary to avoid multiplicity of proceedings. In Jai JaiRam Manohar Lal's case what the Supreme Court observedwas that the court always gives leave to amend the pleadingsof the parties unless it is satisfied that the party applyingwas acting mala fide or that by his blunder, he had causedinjury to his opponent which may not be compensated byan order of costs. However, negligent or careless may havebeen the first omission and, however, late the proposedamendment, the amendment nay be allowed if it can bemade without injustice to the other side. This judgmentcannot be construed to mean that a rule has been laid downabout costs being awarded to compensate the defendantand that is the only matter left in the discretion of the court.Costs are generally granted to compensate for adjournmentcaused. The terms on which the amendment is to beallowed is quite another matter. In A. K. Gupta and SonsLtd.'s case the Supreme Court observed that amendment ofpleadings introducing a new case cannot be allowed if asuit on such case is barred. This was again a case wherethe point in issue was whether an amendment can be allowedto a party which tries to set up a new case or plead a newcause of action particularly when a suit on the new cause ofaction is barred. The rule enunciated in this case does nothelp us in answering the question posed by the referringorder.

(8) I am in entire agreement with the learned counselfor the respondents that the court in considering an application for amendment is not allowed to act in the Vacuumand must exercise its power by adopting all the rules ofjudicial discretion. The power, however, cannot berestricted to only a power to award costs. In appropriatecases keeping the plea of limitation in view or other similaraspects in view, the court may well put the plaintiff or thedefendant, whoever is seeking amendment, to such termsas may be just including laying down that the amendmentwill be effective only from a particular date. To take anyother view would amount to restricting the language andimporting into it a meaning which the legislature did notintend to give.

S. Ranganathan, J.

(9) Accordingly, I answer the reference in the affirmative.I refrain from making any observation on the merits of thiscase as to whether the amendment as allowed or not allowedwas correct or incorrect.

THEcase will now go back to the learned Single Judgefor decision of the revision petition on merits.

Iagree, I would, however,like to add a few words as the point raised is an interestingone and is also likely to recur frequently.

(10) It is well settled that where an amendment of thepleadings is allowed, the usual rule and the normal consequence is that it relates back to the date of the filing of thesuit so that justice can be done to the parties on full andproper pleadings. This is the reason why in many of thecases on amendment of pleadings, and objection on thebasis of a plea of limitation looms large. There has beena long catena of decisions of the Supreme Court and theHigh Courts to the effect that, in deciding whether to allowan amendment or not the court should consider whetherthe right that has accrued to the opponent by the expiryof the period of limitation will be affected by allowing theamendment. The court, would, as a rule, decline to allowan amendment if a fresh suit on the amended claim wouldbe barred by limitation on the dale of the application butmay make exceptions in proper cases. Accordingly, courtshave always either allowed or disallowed amendments aftertaking the factor into account but have not consideredspecifically the possibility of limiting the amendment !o takeeffect from the date of the application thereforee. Had sucha limitation been considered possible, perhaps at least insome of the numerous cases decided on this point, theamendment might have been made subject to such a prospective rule. The decided cases, in other words, haveinvariably proceeded on the assumption that an amendment.once allowed, is fully retrospective and takes effect from the date of the original pleadings.

(11) But it seems to me that the mere fact that the genera!and normal rule has been followed in most of the cases isnot sufficient to draw the inference that the Court can directan amendment only on those terms or not at all. My Lordhas referred to an early Calcutta decision which indicatesto the contrary and there are more explicit recent rulings.That apart, the powers of the Court in this regard arederived from the language of Order 6 Rule 17. The complexities of cases and the circumstances in which amendments are sought are so varied that it may not be advisableto restrict the scope of the above provision which has beenexpressed in very wide language to enable the Court topass an order of amendment on such terms as it thinks justin the circumstances of a case. It is not possible to conceiveof the various circumstances in which it will be equitable ornecessary to impose a term that the amendment would beeffective only from the date of application. The fact thatthe claim sought to be put in by way of amendment hassince become barred by time may not, by itself, be consideredsufficient to make the amendment prospective and if thatbe the solitary ground, the court perhaps may, as has beendone during the past several years, either decline the amendment or allow it to have the normal effect. But the court,in my opinion, has and should have the power to look. atall the circumstances and the nature of the amendmentsought for and then pass an appropriate order. I do notthink it can be laid down as a matter of principle andinvariable role that an amendment, once ordered, shouldrelate back to the date of the original pleadings and that thecourt lacks the power, even in appropriate cases, to restrictthe scope of the amendment sought for.

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