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TMI Blog2011 (8) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... desh filed an application for amendment of plaint being I.A. No.4 of 2009 seeking, inter alia, the amendment to the effect that Sections 58(3) and 58(4) of the MPR Act are violative of Article 14 of the Constitution of India inasmuch as it enables the Central Government to determine without any guidelines the manner of exercise of power while deciding the basis of apportionment of the assets and liabilities of the successor Boards. 3) Ist Defendant-Union of India, apart from disputing its maintainability on delay and laches also contested on merits. 4) 2nd Defendant-State of Chhattisgarh has objected to the amendment on the ground that the same is totally misconceived and untenable in law and that no recourse whatsoever can be permitted to challenge the validity of a Central law under the exclusive jurisdiction of this Court under Article 131 of the Constitution of India. The State of Chhattisgarh has also contended that the plaintiff-State of M.P., on the one hand is seeking a prayer that Ist Defendant must perform its duty in accordance with the Statute and, on the other hand, is challenging the validity of the very same Statute and, therefore, it is liable to be dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings - 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 comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment." (ii) North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, (2008) 8 SCC 511, at para16: "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that all 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versy between the parties." (v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84, at para 63: "63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." The above principles make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of any guidelines, any decision by the Central Government is arbitrary, unjust, unfair, unreasonable, unconstitutional and violative of Article 14 of the Constitution of India, in particular. In those circumstances, according to him, the amendment of plaint sought for is reasonable and acceptable. 12) As against the above claim, Mr Rawal, learned ASG, appearing for the Union of India submitted that there is no merit in the claim for amendment of plaint. At any rate, the amendment sought for is not maintainable at this juncture. 13) Mr. Ravi Shankar Prasad, learned senior counsel for second Defendant-State of Chhattisgarh strongly objected the proposed amendment both on the ground of delay and laches and on merits. Mr. Prasad highlighted that verification of the Court proceedings would show that the pleadings in the suit are complete, evidence by way of affidavits has been filed, issues for adjudication have been framed, admission/denial of documents filed in support of the pleadings have taken place and the suit is now to be finally heard by this Court. He also contended that the application at this belated stage is not maintainable. 14) It is not in dispute that after comply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dispute as to the relief prayed in the said writ petition. Though the MPEB approached this Court by way of a writ petition under Article 32, admittedly, the vires of those sections were never challenged. Subsequently, the said writ petition being No. 675 of 2004 along with three other writ petitions were disposed of by this Court vide judgment dated 13.09.2006. It is not clear and not explained to this Court why such recourse was not adopted when the MPEB itself had approached this Court by way of a writ petition to challenge the vires of those provisions and, ultimately, this Court dismissed the said writ petition filed by the Board. It is to be noted that this Court did not find any infirmity whatsoever in the manner of exercise of power by the Central Government under Sections 58(3) and 58(4) of the MPR Act while upholding the notifications dated 02.11.2004 and 04.11.2004 as being constitutional and not suffering from any vice of arbitrariness as claimed by the plaintiff-State of M.P. and MPEB. It was also pointed out and also not in dispute that in the said writ petition, the present plaintiff was also a party, even then the plea of constitutionality was not raised. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In our view, after praying for such relief, if the amendment as sought for by the plaintiff is allowed and the plaintiff is permitted to challenge the vires of the said provisions, then the very basis on which the plaintiff is claiming its right to apportionment of assets, rights and liabilities of the undivided Board will cease to be in existence and the entire suit of the plaintiff will be rendered infructuous. Moreover, it is settled principle of law that leave to amend will be refused if it introduces a totally different, new and inconsistent case or challenges the fundamental character of the suit. 20) In spite of the above conclusion, we feel that the plaintiff may be given an opportunity to put forth its stand that the Central Government issued impugned Notifications/Orders without proper guidelines and affording opportunity to the parties concerned. It is made clear that we have not either accepted or concluded the said claim of the plaintiff but in the interest of justice, plaintiff-State of M.P. is permitted to raise such objections at the time of trial by placing acceptable materials. 21) With the above observation, I.A. No. 4 of 2009 is disposed of with no orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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