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TMI Blog2009 (10) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... reason comes to the conclusion that a decree for a sum of Rs. 52,97,111/- cannot be passed as prayed by the appellant against respondents (original defendant Nos. 1 and 2), then the court may at least pass a decree for Rs. 19,12,500/- with interest at the rate of 18% from the date of suit till the date of realization against the respondents. 4. The appellant also claimed that it be declared absolute owner of the scheduled property on the basis of the sale deed dated 30.9.1987. The sale deed was executed by the respondents in favour of the appellant after obtaining permission from the State of Karnataka under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976. 5. A petition in public interest was filed by one S. Vasudeva which ultimately came up before this Court in Civil Appeal Nos. 1454-56 of 1993 challenging the aforementioned transfer of land. This Court in those proceedings held that the sale deed executed by the respondent in favour of the appellant on 30.9.1987 is held to be invalid and inoperative. It may be pertinent to mention that after the institution of the suit, the Urban Land (Ceiling and Regulation) Act, 1976 has been repealed. 6. After the Act has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 19638 square metres as aforesaid (19638 sq. metres). 7. The appellant sought to add the following prayers in the plaint by an amendment in the plaint: (a) to declare that from 1.4.1988, the defendants are trespassers and or in unauthorized occupation of the building which they were permitted, under the Sale Deed dated 30.9.1987 to use as a licensee till 31.3.1988; (b) to issue a mandatory injunction directing the defendants to vacate and deliver to the plaintiff, vacant and peaceful possession of the building within 30 days; and (c) to issue a permanent injunction restraining the defendants or any of them, or their agents, representatives, servants or any other persons claiming through, under or on behalf of any of them from interfering with or in any manner disturbing, hindering, obstructing, the plaintiff's enjoyment and possession of the entire suit schedule property including the building portion ordered to be evicted in terms of prayer (b) hereinabove. 8. The trial court vide order dated 5.4.2003 allowed application for amendment filed under Order VI Rule 17 CPC. The respondents aggrieved by the said order of the trial court preferred a writ petition No. 36550 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was not his case in the original plaint and proposed amendment if allowed would certainly affect the rights of the respondents adversely. In the impugned judgment, the High Court also held that the appellant cannot be permitted to withdraw the admissions made in the plaint as it would affect the rights of the respondents. 12. The High Court in the impugned judgment also held that any such amendment which changes the entire character of the plaint cannot be permitted and that too after a lapse of four years after the institution of the suit. The High Court has set aside the order of the trial court which allowed the amendment under Order VI Rule 17 CPC. 13. Being aggrieved by the impugned judgment, the appellant has preferred this appeal. 14. We have heard the learned Counsel for the parties and have also perused the written submissions filed by the parties. 15. It is submitted by the learned Counsel for the appellant that the suit, as originally framed, was only for refund of sale consideration and alternatively for possession. The appellant also submitted that the relief for possession was always there, although it was in respect of the entire land which is sought to be am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Order XII Rule 6 of the CPC by changing the cause of action and entire character of the suit and causing serious prejudice to the respondents. The respondents relied on the decision of this Court in Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors. (2007) 5 SCC 602 wherein the court has held that by way of amendment, admission made in pleadings and particularly in the plaint cannot be sought to be omitted or got rid of. The Court further observed that a prayer for amendment of the plaint stand on different footing. The relevant observations of the Court are set out as under: 19 ...a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be withdrawn and if allowed, it would amount to totally displacing the case of the plaintiff. 24. In the same judgment of Usha Balashaheb Swami (supra), the Court dealt with a number of judgments of this Court and laid down that the prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 25. If we carefully examine all the cases, the statement of law declared by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 PC 249 has been consistently accepted by the courts till date as correct statement of law. The Privy Council observed: All rules of court are nothing but provisions intended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to further delay in disposal of the cases. 30. It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) Act, 1999 but because of public uproar, it was revived. Justice C.K. Thakker, an eminent former Judge of this Court in his book on Code of Civil Procedure (2005 Edition) incorporated this information while dealing with the object of amendment. 31. In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace...it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right. 35. In Tildersley v. Harper (1878) 10 Ch. D 393 which was decided by the English Court even earlier than the Cropper's case (supra), in an action against a lessee for setting aside a lease, in the statement of claim it was alleged that the power of attorney of donee had received specified sum as a bribe. In the statement of defence, each circumstance was denied but there was no general denial of a bribe having been given. A prayer for amendment of the defence statement was refused. 36. The Court of Appeal held that the amendment ought to have been allowed. Bramwell, L.J. made the following pertinent observations: I have had much to do in Chambers with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the amendment was refused. 40. In the said case, Pollock, J. quoting with approval the observation of Bremwell, LJ. rightly observed: "The test as to whether the amendment should be allowed is, whether or not the defendants can amend without placing the plaintiff in such a position that he cannot be recouped, as it were, by any allowance of costs, or otherwise. According to him such an amendment ought not be allowed." 41. Kisandas v. Rachappa Vithoba (1909) 33 Bom 644 is probably the first leading case decided by the High Court of Bombay under the present Code of 1908. There, A, plaintiff, averred that in pursuance of a partnership agreement, he delivered Rs. 4001 worth of cloth to B, defendant, and sued for dissolution of partnership and accounts. The trial court found that A delivered the cloth worth Rs. 4001 but held that there was no partnership and the suit was not maintainable. In appeal, A sought amendment of adding a prayer for the recovery of Rs. 4001. On that day, claim for recovery of money was barred by limitation. The amendment was allowed by the appellate court and the suit was decreed. B challenged the decree. The High Court upheld the order and dismissed the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al court but the decree was set aside by the High Court. In an appeal before this Court, the plaintiff applied for amendment of the plaint by raising an alternative claim for damages for breach of contract for `non-delivery of goods'. The amendment was resisted by the defendant contending that it sought to introduce a new cause of action which was barred by limitation on the day the amendment was sought and, hence, it would seriously prejudice the defendant. 45. Though the Court noticed `considerable force' in the objection, keeping in view the prayer in the amendment which was not `foreign to the scope of the suit' and all necessary facts were on record, it allowed the amendment. 46. In P.H. Patil v. K.S. Patil AIR 1957 SC 363, A obtained a decree for possession against B. He was, however, obstructed in obtaining possession by C in execution. A then filed a substantive suit against B and C. In the plaint, except saying that he had obtained a decree against B, nothing more was stated by A. Hence, he filed an application for amendment which was rejected by the trial court but allowed by the High Court. C approached this Court. 47. Dismissing the appeal and confirming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. 50. In Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and Ors. AIR 1964 SC 11, the defendant's prayer for amendment by treating a counter claim as cross-suit was objected to by the plaintiff inter alia on the ground of limitation. The amendment, however, was allowed. 51. When the matter reached this Court, while affirming the order of the High Court, the majority stated: It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court. 57. In Haridas Aildas Thadani and Ors. v. Godraj Rustom Kermani (1984) 1 SCC 668 this Court said that "It is well settled that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances. 58. In B.K. Narayana Pillai v. Parameshwaram Pillai and Anr.: (2000) 1 SCC 712, a suit was filed by A for recovery of possession from B alleging that B was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardly any court grants actual costs to the opposite side. 63. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care. 64. In Ganga Bai's case (supra), this Court has rightly observed: The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court. COSTS: 65. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive. (i) At what stage the amendment was sought? (ii) While imposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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