Rajendra Ravidas v. Rajdev and 5 Others

Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 8785 of 2023 Petitioner :- Rajendra Ravidas Respondent :- Rajdev And 5 Others Counsel for Petitioner :- Ashutosh Kumar Gautam,Rituvendra Singh Nagvanshi Hon'ble Jayant Banerji,J.

¶1Heard learned counsel for the petitioner.

¶2This petition has been filed seeking the following relief: "It is, therefore, Most Respectfully Prayed that this Hon'ble Court may be pleased to call for record set-aside order dated 15.7.2023 (Annexure No.10) passed by the District Judge Mau in Civil Revision No. 8 of 2023 (Rajendra Ravidas Vs. Rajdev and others) and order dated 21.1.2003 (formal order dated 25.1.2023) (Annexure No.8) passed by the learned Civil Judge (Senior Division) Mau, may remain stayed, during the pendency of the petition, otherwise petitioner shall suffer irreparable loss and injury. And/or to pass such other and further order which this Hon'ble Court may deem fit and property in the circumstances of the case."

¶3It appears that an Original Suit No. 358 of 2003 was filed by the plaintiff-petitioner seeking a decree of cancellation of a will deed dated 30.7.1987 that was registered on 31.7.1987 as well as a decree for permanent injunction. Initially, the suit was decreed ex-parte but was set aside subsequently and a written statement was filed. It is stated by the learned counsel for the petitioner that number of the suit was converted to Suit No. 170 of 2017.

¶4In the aforesaid suit, it is contended by learned counsel that an application under Order 6 rule 17 CPC was filed bearing paper no. 134Ka2 seeking amendment in paragraph 9 and 11 of the plaint. It is stated that a will deed dated 2.2.1988 was executed by the deceased in favor of the plaintiff which could not be found earlier as it was mixed up with other documents and as such the amendments were sought. It is stated that by the impugned order dated 21.1.2023, the amendment application was dismissed. Thereafter, Revision No. 8 of 2023 filed by the petitioner was unsuccessful and was dismissed by the judgment and order dated

15.7.2023 which also is impugned in the present case. It is contended that neither the nature of the suit would be changed by the amendment nor is the amendment frivolous. It is contended that as a matter of fact, the amendments are necessary to decide the real issue in controversy between the parties. In support of his contention, learned counsel for the petitioner has relied upon a judgment of the Apex Court in the case of B. K. N. Pillai vs. P. Pillai reported in AIR 2000 SC 614 and another judgment of the Supreme Court in Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and others reported in AIR 2012 SC 1887.

¶5A perusal of the application for amendment that has been filed as Annexure No. 6 to the petition shows that the following two amendments were sought: "1. यह ककि ववाद प्ቔ किकी धवारवा 9 किके अन्त मम इबवारत दरर किरनके किकी अननुमकत ्ቚदवान किकी रवाय "ककि द्ቈकि कपतवा ववाददी स्वययं रवामदकेव नके अपनके रदीवन किवाल मम ववाददी किके सकेववा सनुशनुववा सके ्ቚस्ቐ हहोकिर कदनवायंकि 02.02.1988 किहो ववाददी किके प्ቌ मम दस्तवावकेर वसदीयत स्वस्थकचि्ቈ एवयं मन सके तहरदीर ककियवा और उन्हहोनके दस्तवावकेर वसदीयत कदनवायंकि

02.02.1988 मम स्प्ቖ रूप सके बवात किवा जर्ቅ ककियवा हहै ककि यह दस्तवावकेर वसदीयत उनकिकी पहलदी व आजखिरदी दस्तवावकेर वसदीयत हहै।

¶2यह ककि धवारवा 11 ववाद प्ቔ किकी उप धवारवा "श" किके ठदीकि बवाद मरदीद उप धवारवा "चि" दरर ककियवा रवाय। (चि) यह ककि चिचूማककि स्वययं रवामदकेव पनु्ቔ दवर नके अपनके दवारवा जलजखित दस्तवावकेर वसदीयत मम स्प्ቖ रूप सके इस तथ्य किवा जर्ቅकि ककियवा ककि उ्ሹ दस्तवावकेर वसदीयत उनकिकी पहलदी व आजखिरदी दस्तवावकेर वसदीयत हहै। लकेहवारवा इस आधवार पर यह तथ्य भलदी भवाूማकत जस्ቍ हहै ककि कवववाकदत वसदीयतनवामवा कदनवायंकि-30.07.1987 स्वययं रवामदकेव दवारवा तहरदीर नहदी किकी गयदी हहै और उ्ሹ दस्तवावकेर वसदीयत कदनवायंककित-02.02.1988 किके पररपके्ቌ मम कवववाकदत दस्तवावकेर वसदीयत कदनवायंककित-30.07.1987 स्वययं कनरस्त समझदी रवायकेगदी और वह शचन्य एवयं कनष््ቚभवावदी हहै।"

¶6The trial court observed that the suit is pending since a long time and the evidence of the plaintiff has concluded and the matter is pending for the evidence of the defendants. It was noted that the amendment sought for was in respect of a will dated 2.2.1988 is not such a fact which could not have been narrated by the plaintiff in the suit by exercising due diligence. It was further observed that the trial of the suit has commenced and the evidence of the defendant is in progress and there is a direction of the High Court for expeditious disposal of the suit. Accordingly, the application was rejected. The revisional court referred to a gamut of the judgments passed by various Courts and noticed that no specific particulars were given in the application for amendment. It was observed that the explanation offered for the delay was completely unacceptable as no particulars were given by the plaintiff and it did not satisfy the proviso to Order 6 Rule 17 of the Code of Civil Procedure. The revisional court noticed that though it is correct that delay itself is not a ground to reject the application for amendment, but where no particulars are given, the explanation given for the delay is completely unacceptable and does not satisfy the proviso to Order 6 Rule 17 and hence, it cannot be said that the amendments were moved bona-fidely. It was further stated that the amendments sought were inconsistent with the previous pleadings of the plaintiff and it was highly belated and inordinate delay and therefore, the trial court has rightly rejected the application for amendment. Accordingly, the revision was dismissed.

¶7Though, there is no bar for a party to seek amendments in the pleadings, the amendments, ordinarily, have to be allowed provided certain conditions are fulfilled as is mentioned in the judgment of the Supreme Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders reported in AIR 2022 to SC 4256. However, the amendment sought has to be viewed in the light of the proviso to Order 6 Rule 17 CPC that was inserted in the CPC with effect from 1.7.2002. The aspect of due diligence has to be demonstrated by a party seeking amendment where the trial has commenced so as not to render the mandate of the legislature inert. Judgments cited by learned counsel for the petitioner are of no assistance to him in as much as in B. K. N. Pillai, the matter arose out of proceedings in a suit filed prior to amendment made in Order 6 Rule 17 CPC. In the case of Rameshkumar Agarwal, it does not appear that the trial had commenced. A perusal of the paragraph 5 of the judgment reflects that after filing a suit for specific performance in the year 2007, the plaintiff filed Chamber Summons No. 1233 of 2008 for amendment of plaint for impleadment of two parties as plaintiff Nos. 2 and 3 and three parties as defendant Nos. 3, 4 and 5 apart from the fact that he wanted to explain how money was paid. The Court observed that the amendment merely sought to introduce the facts/evidence in support of the contention already pleaded, that is, that the entire consideration under the agreement had been paid. Accordingly, it was held that there is no inconsistency in the case of the plaintiff. Even in the judgment of the Life Insurance Corporation of India, it is evident that the suit was instituted in the year 1986 in which case also the amendment to Order 6 Rule 17 CPC was not considered.

¶8A perusal of the application 134Ka2 itself reveals that no specific dates have been reflected therein as to how the plaintiff gained knowledge of the will deed dated 2.2.1988 and whether he had exercised due diligence before filing of the suit in the year 2003. It is noted that the plaintiff claims to be the adopted son of the deceased/testator.

¶9Under the circumstances, the orders impugned do not require to be interfered with and this petition is, accordingly, dismissed. Order Date :- 1.11.2023 A. V. Singh (Jayant Banerji, J.) High Court of Judicature at Allahabad