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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   4568    OF 2018 (Arising out of SLP(Civil) Nos.7710 of 2018)

Gurbakhsh Singh and others        ……Appellants

VERSUS

Buta Singh and another         ..…. Respondents

JUDGMENT

Uday Umesh Lalit, J.

Leave granted

2. Civil Suit No.195 of 1968 filed by respondent No.1 for declaration on

the  basis  of  reversionary  rights  was  decreed  ex-parte  against  the

predecessor-in-interest of the present appellants.  After having come to know

about such ex parte decree dated 30.06.1969, present suit was filed by the

appellants for setting aside said decree.  

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3. The appellants pleaded in the suit that the file in respect of Civil Suit

No.195 of 1968 was not traceable in the record room.   Issues were framed

and  thereafter  two  official  witnesses  were  examined,  at  which  stage  the

appellants preferred an application seeking amendment of the plaint.  The

amendment sought by the appellant was as under:

“3-A.  That the perusal of the copy of the order/judgment dated 30.06.1969 and decree shows that the defendant No.1 filed that suit  in  the  year  1968  deliberately  without  giving  all  the particulars of the land at that point of time in the plaint in spite of the fact that consolidation of holding did take place in the year  1961-1962  and  gave  the  old  numbers  before  the consolidation with ulterior motive.  Since old numbers were not in existence at the time of filing of the suit, an ex parte decree has been procured by suspension of the material facts.

a) Land measuring 48 kanals 7 marlas entered at rect. No.39, Killa No.19/2, 12, 19/1, 18/2, 10, 23, rect. No.38, killa No.5, 6/1, rect. No.60, killa No.2/1min.

b) Land measuring 36 kanals 16 marlas entered at rect. No.38, kill  No.16/2,  25/1,  14/2,  6/3,  24,  15/1,   rect.  No.   killas No.14, 15/1.

c) Land measuring 68 kanals entered at rect. No.213, killas No.16/2, 14, 15, 17/1, 16/2, rect. No.114, killa No.11, 12, 10, 9, rect. No.212, killa No.21, rect. No.92, killa No.5.  It may also be mentioned here that the suit filed by Buta Singh, defendant No.1 alone  as shown in the copy of  the order/judgment  and decree of civil suit No.195 of 1968 without impleading all the legal heirs of vendor Mehnga Singh and when the 2nd suit was filed  after  the  death  of  Mehnga  Singh  which  was  pending before the court of Sh. Rajesh Garg, no detail of the vendees and their successors in interest has been given in the plaint.  At the most if the decree is not set aside a fact disputed and denied then too may the defendant No.1 is only at the best can claim relief to the extent of 1/9th share of the total property and other

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defendant No.17 to 24 are not legally entitled to any relief in view of the ex parte decree passed in civil suit No.195 of 1968.

3-B That the prayer clause also requires to be amended.  So before the words “costs of the suit and after the words” during the pendency of the suit following prayer may also be inserted.

4.  The aforesaid application  came to be dismissed  by the  trial  court

observing that the appellants had failed to exercise due diligence and that the

facts in question could have been raised before framing of the issues.  The

rejection of the application for amendment was challenged by way of Civil

Revision No.5373 of 2014 in the High Court.  It was submitted on behalf of

the appellants that there was no change in the nature of the suit except that

specific khasra numbers were sought to be specified by way of amendment.

It was further submitted that the amendment would not prejudice the case of

the defendants.

5. The  High  Court,  however,  dismissed  said  revision  petition  by  its

judgment and order dated 25.07.2017, which is presently under appeal.  It

was observed by the High Court:

“No doubt, the amendment would not change the nature of the suit,  however,  all  amendments  which do not  change the suit cannot be allowed particularly after the commencement of the trial.  It has been found by the Court that necessary pleadings are already in existence in the original plaint.”

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The High Court was of the view that Proviso to Order 6 Rule 17 of the

Code of Civil Procedure, as duly amended, laid down that once the trial had

commenced,  no amendment could be allowed unless the court were to come

to the conclusion that the party could not have raised the matter before the

commencement of the trial despite due diligence.  

6. In the present case the record of Civil Suit No.195 of 1968 in which

ex  parte  decree  was  passed  on  30.06.1969  is  not  traceable.   In  the

circumstances, there could possibly be some inability in obtaining correct

particulars well  in time on part  of  the appellants.   At the time when the

application for amendment was preferred, only two official witnesses were

examined.   The  nature  of  amendment  as  proposed  neither  changes  the

character and nature of the suit nor does it introduce any fresh ground.  The

High Court itself was conscious that the amendment would not change the

nature of the suit.  In the given circumstances, in our view, the amendment

ought  to  have  been  allowed.   In  any case  it  could  not  have  caused  any

prejudice to the defendants.

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7. While allowing amendment of plaint, after amendment of 2002, this

Court in circumstances similar to the present case, in  Abdul Rehman and

Anr. vs. Mohd. Ruldu and Ors.1, had observed:

“11. The original provision was deleted by Amendment Act 46  of  1999,  however,  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 above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that courts should try the merits of the  case  that  come before  them and should,  consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court,  in  a  series  of  decisions  has  held  that  the  power  to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose  of  allowing  the  amendment  is  to  minimise  the litigation  and  the  plea  that  the  relief  sought  by  way  of amendment  was barred by time is  to  be considered in  the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel & Others  v. Gattu  Mahesh and Others2 and  Rameshkumar Agarwal v. Rajmala Exports (P) Ltd and Others.3 Keeping the  above  principles  in  mind,  let  us  consider  whether  the appellants have made out a case for amendment.”

1 (2012) 11 SCC 341 2 (2012) 2 SCC 300 3 (2012) 5 SCC 337

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8. We,  therefore,  allow  this  appeal  and  accept  the  application  for

amendment preferred by the appellants.  The plaint shall stand amended in

terms of the proposed amendment.  The trial court is directed to proceed

with the matter accordingly.  There will be no order as costs.

………………………J. (Arun Mishra)

…………………..……J. (Uday Umesh Lalit)

New Delhi, April 27, 2018