State of U.P. and 2 Others v. Smt Kalawati Singh and Another

Reserved On: 08.07.2025 Delivered On:17.07.2025 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 6516 of 2021 Petitioner :- State Of U.P. And 2 Others Respondent :- Smt Kalawati Singh And Another Counsel for Petitioner :- Prem Prakash Chaudhary Counsel for Respondent :- Kamlesh Kumar,Rajesh Nath Tripathi Hon'ble Manish Kumar Nigam,J.

¶1Heard learned Standing Counsel for the petitioners and Sri Kamlesh Kumar and Sri Rajesh Nath Tripathi, learned counsel appearing for the respondent.

¶2This petition has been filed challenging the order dated 23.11.2019 passed by the District Judge, Deoria in Civil Appeal No. 52 of 2017 (Smt. Kalawati Singh Vs. State of U.P. and others).

¶3Brief facts of the case giving rise to the present petition are that Original Suit No. 11 of 1999 (Smt. Kalawati Singh Vs. State of U.P. and others) was instituted by the plaintiff-respondent for the relief of mandatory injunction restraining the defendants not to give effect to the agreement executed till 1999 on the basis of tender issued for 1999-2000 and defendants may further be restrained from creating hindrance in transportation of goods in terms of agreement between the plaintiff and the defendants till 1999. It was also prayed that a decree be issued for payment of Rs. 6,49,687/-for work of transportation already executed by the plaintiff-respondent in pursuance to agreement executed in her favour. Other reliefs were also claimed. The petitioners contested the suit by filing written statement and denied the plaint averments. On the basis of the pleadings of the parties, total 11 issues were framed by the trial court. Issue nos. 10 and 11 which are relevant for the present case were whether on the basis of averments made in the plaint, plaintiff is entitled for payment of Rs. 6,49,687/-from the defendants. Issue Nos. 10 and 11 are quoted as under:-"10-

क्य卣渹व卣渹दप䃛加म㝮㜞तरमीमीध卣渹र卣渹-1-

䧭勅䧭勅䧍䁕कथितकिक䧭勅ी䧭勅ंकिवद卣渹/अनुबंध

किवभ卣渹्ቛ 卣渹र卣渹व卣渹किदनीक䧍䁕प鱺ꘟम㝮㜞किकय卣渹य卣渹ह屋敀औरको䂄勛बक卣渹य卣渹धनर卣渹थि" व卣渹दी को.

्ቚ 卣渹┯⸗होन卣渹ह屋敀?

यकिदह卣渹ंतो्ቚ भ卣渹व? 11-

क्य卣渹व卣渹दप䃛加म㝮㜞किदय䧍䁕य䧍䁕क卣渹रण䧉䦕क䧍䁕आध卣渹रपरव卣渹किदनी, ्ቚ तितव卣渹दीण䧭勅䧍䁕 मु0-6,49,687 / रू0

प卣渹न䧍䁕क⸗䂚अतिधक卣渹रिरणीह屋敀?" The suit instituted by the plaintiff-respondent was dismissed by the trial court i.e. Civil Judge (Senior Division) Court No. 18 Deoria vide judgment and decree dated 18.11.2017. The issue Nos. 10 and 11 as mentioned above were decided against the plaintiff on the ground that in paragraph No. 7 A of the plaint, plaintiff has stated only that payment has not been made to the plaintiff by the department for the work done, but plaintiff has not pleaded details of amount to be paid to the plaintiff and it has also not been specifically pleaded by the plaintiff that from which date to which date, she has not received payment for the transportation work done under the agreement. It was contended by the plaintiff before the trial court that D.W. 1 in his statement has admitted that no payment has been made regarding paper No. 130 Ga to the plaintiff from which it is apparent that payment has not been made to the plaintiff for transportation work already done by the plaintiff. Against the judgment and decree dated 18.11.2017 passed by the trial court, plaintiff-respondent filed Civil Appeal No. 52 of 2017 (Smt. Kalawati Vs. State of U.P. and others) before District Judge, Deoria. During the pendency of the aforesaid appeal, an application for amendment was moved by the plaintiff-respondent for amending paragraph No. 7A of the plaint. The amendment sought by the plaintiff is quoted as under:- "1.

यहकिकव卣渹दपरक⸗䂚ध卣渹र卣渹7

अक䧍䁕्ቚ म䧭勅䃛加म㝮㜞"स्त"ढल卣渹䂄勛" क䧍䁕ब卣渹द " "ब्द 1998-1999 क䧍䁕" "

इ䧭勅ी्ቅ मम㝮㜞व卣渹किदनी्ቛ 卣渹र卣渹ढुल卣渹䂄勛क卣渹य2 किन"ुल्क䧍䁕हूंबी⸶䁆आकिदक卣渹नपुर䧭勅䧍䁕

द䧍䁕वरीय卣渹किदन卣渹ँक28.11.1998

䧭勅䧍䁕09.12.1998

तकक⸗䂚ढुल卣渹䂄勛किवल

मु० 5,85,900/-

वोण्ड卣渹䧭勅䧍䁕द䧍䁕वरीय卣渹किनः"ुल्क䧍䁕हूँबी⸶䁆ब2रहक卣渹

ढुल卣渹䂄勛क卣渹य2 किदन卣渹ँक18.12.1998 䧭勅䧍䁕19.12.98

क卣渹ढुल卣渹䂄勛किवलमु० 63,787 = 50

क卣渹भुत卣渹नआ⸶䁆तकनह䨀劼किकय卣渹य卣渹ह屋敀त卣渹तरह-तरह

䧭勅䧍䁕हमव卣渹किदनीकोऐ-क䧍䁕न-

्ቚ क卣渹र䧍䁕ण्ቚ त卣渹तिडतकिकय卣渹⸶䁆卣渹रह卣渹ह屋敀㝞㝇भुत卣渹नकर卣渹न䧍䁕

क卣渹न्य卣渹तियकआद䧍䁕" प卣渹रिरतकिकय卣渹⸶䁆卣渹न卣渹आवश्यकवन्य卣渹य䧭勅ंतह屋敀㝞㝇" At this stage, it would be relevant to quote paragraph No. 7A of the plaint, which is as under:-"7-

यहकिकयकिद्ቚ तितव卣渹दीणबर卣渹हबदकिनयतीपूव2 म㝮㜞किदय䧍䁕य䧍䁕किनकिवद卣渹"त@

क䧍䁕 लिल䁛㞏मौ⸶䁆ूद卣渹किनकिवद卣渹1999-2000

तकखोल䧍䁕䁛㞏किनकिवद卣渹क卣渹

कि्ቅय卣渹न्वयनकर㝮㜞䧍䁕तोव卣渹किदनीक⸗䂚अपूण2नीय鱺ꘟतितहोीऔरव卣渹किदनीकोकिकय䧍䁕

य䧍䁕अ्ቇीम䧍䁕न्쪪�क⸗䂚"त@ क卣渹उ्ቤंघनहो卣渹⸶䁆ोकिवध卣渹नतःन्य卣渹योतिJतनह䨀劼ह屋敀

औरन्ቚ तित-

व卣渹दीणकोव卣渹किदनीको䧭勅卣渹 किकय䧍䁕य䧍䁕䁛㞏्ቇीम䧍䁕ण्쪪�/

किनकिवद卣渹को

䧭勅ुपर䧭勅ीडकरत䧍䁕हु䁛㞏किनकिवद卣渹कोल卣渹ूकरन䧍䁕क卣渹अतिधक卣渹रहीह屋敀㝞㝇्ቚ्቞ -

यहक⸗䂚

दौर卣渹नमुकदम卣渹मुत卣渹किबककिनकिवद卣渹/

䧭勅ंकिवद卣渹अनुबंधहमव卣渹किदनी्ቛ 卣渹र卣渹क⸗䂚यी

ढुल卣渹䂄勛1998-1999

क卣渹य2 ⸶䁆ो䧭勅रक卣渹रीक卣渹य2 ह屋敀उ䧭勅䧭勅䧍䁕䧭勅म्ब቏ኌन्धतभुत卣渹न

नह䨀劼कररह䧍䁕ह렾솟और⸶䁆卣渹नबूझकरहमव卣渹किदनीकोकिबन卣渹किक䧭勅ीक卣渹रणक䧍䁕ह屋敀र卣渹न

वपर䧍䁕"卣渹नकररह䧍䁕ह렾솟जि⸶䁆䧭勅䧭勅䧍䁕व卣渹किदनीक⸗䂚आቕኌक቏ኌस्तितक卣渹फ⸗䂚खर卣渹बहो

यीह屋敀और䧭勅रक卣渹रीक卣渹य2 करन䧍䁕म㝮㜞भीककिSन卣渹䂄勛होरहीह屋敀जि⸶䁆䧭勅䧭勅䧍䁕䧭勅रक卣渹री

鱺ꘟतितभीह屋敀और्ቚ तितव卣渹दीणव्यकिUतनर卣渹⸶䁆ीक䧍䁕क卣渹रण䧭勅䧍䁕क卣渹फ⸗䂚धनक卣渹

दुरूपयोकरत䧍䁕हु䁛㞏भुत卣渹ननह䨀劼कररह䧍䁕ह렾솟⸶䁆ोआवश्यकहीइ䧭勅ी䧭勅न्दभ2 म㝮㜞

आपक⸗䂚म卣渹ंआवश्यकह屋敀㝞㝇" The amendment application filed by the plaintiff-respondent was opposed by the defendant-petitioners by filing objections on 01.02.2019. The appellate court i.e. District Judge, Deoria vide judgment and order dated

23.11.2019 (impugned in present petition) allowed the amendment application filed by the plaintiff-respondent on payment of cost of Rs. 500/-. Hence the present petition.

¶4Learned Standing Counsel submitted that the suit was filed in the year 1999 and the amendment has been sought in the plaint on 09.02.2018 and in view of proviso added to Rule 17 of Order 6 C.P.C., 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. Learned Standing Counsel further submitted that in this case, the amendment has been sought at the appellate stage after the dismissal of the suit. The amendment as such cannot be allowed, which is highly belated without their being any explanation for the reason as to why the amendment was not sought earlier and further by the amendment, the plaintiff-respondent has tried to fill up the lacuna in his pleadings at a very late stage.

¶5Per contra, learned counsel appearing for the respondent submitted that amendment in the pleadings can be allowed at any stage of the suit even at the stage of first appeal or second appeal. It has been further contended that it is the consistent view of both the High Court as well as Hon'ble Supreme Court that court should be extremely liberal in allowing the amendment. It has also been submitted that since suit was instituted in the year 1999, prior to amendment in Rule 17 of Order 6 of C.P.C. in the year 2002, the proviso added by the amendment will not apply to the proceedings which were filed prior to amendment.

¶6Before considering the rival submissions of the parties, it would be appropriate to look into the amended Rule 17 of Order 6 C.P.C, which is quoted as under:- "[17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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.]"

¶7This amended Rule 17 has been substituted by Act 2022 of 2002 w.e.f. 01.07.2002.

¶8Supreme Court in case of State Bank of Hyderabad Vs. Town Municipal Council reported in (2007) 1 SCC 765 held that in suits instituted prior to the amendment made in Rule 17 of Order 6 of C.P.C. by the Amending Act 2002 will not apply in view of Section 16(2)(b) of the Amending Act of 2002. In this regard, paragraph Nos. 4, 5, 6, 7 and 8 of judgment in case of State Bank of Hyderabad Vs. Town Municipal Council (supra) is quoted as under:- "4. The short question which arises for consideration is as to whether the proviso appended to Order VI, Rule 17 of the Code is applicable in the instant case.

¶5Order VI, Rule 17 of the Code reads, thus: "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."

¶6The Proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect

from

1.07.2002.

It

reads

as

under: "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."

¶7Section 16(2) of the Amending Act of 2002 reads as under: "16(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897

(a) *** ***

(b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;"

¶8In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order VI, Rule 17 of the Code shall not apply."

¶9So far as contention of learned counsel for the petitioner that the application for amendment being belated, same should not have been entertained and allowed. From the perusal of the paragraph No. 7A (as quoted above) and the amendment sought by the plaintiff-respondent in the plaint (as quoted above), it is apparent that the plaintiff-respondent has pleaded that payments for the transportation work done during the subsistence of the contract was not made by the department to the plaintiff. By the amendment plaintiff-respondent has given only the details of such pending payments as given in paragraph which were sought to be added by the aforesaid amendment. Nothing new has been tried to be introduced by the plaintiff-respondent.

¶10It is one thing to say that application for amendment suffers from delay or laches but it is another thing to say that thereby the defendants were prejudiced. No prejudice has been caused to the petitioners as pleading was there for non-payment of transportation work done under the agreement by the plaintiff, only the details of such work was added by the said amendment. In my view, the same was necessary for doing complete justice between the parties.

¶11Supreme Court in case of Baldev Singh and others Vs. Manohar Singh and others reported in (2006) 64 ALR 895 has held that court should be extremely liberal in allowing the amendment. Paragraph No. 8 of Baldev Singh and others Vs. Manohar Singh and others (supra) is quoted as under:- "8. It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922 Privy Council 249) in which the Privy Council observed: "All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit."

¶12It has also been held by Supreme Court in case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das reported in

(2009) 74 ALR 370 that the amendment in a pleading can be allowed at any stage of proceedings. Paragraph No. 15 of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (supra) is quoted as under:- "15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. AIR 1957 Supreme Court 363 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 between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar, 1990 (1) RCR (Rent) 229: 1990 (1) RRR 222: 1990 Civ.C.C. 277 (SC) )"

¶13In case of Ragu Thilak D. John Vs. S.Rayappan & Others reported in 2001 (2) SCC 472, the Supreme Court has held that where the limitation as a defence has been taken against the amendment, the amendment can be allowed subject to decision on question of limitation. Paragraph Nos. 5 and 6 of Ragu Thilak D. John Vs. S.Rayappan & Others (supra) is quoted as under:- "5. After referring to the judgments in Charan Das v. Amir Khan [AIR 1921 PC 50], L.J. Leach & Co. Ltd. & Anr. v. Jardine Skinner & Company [1957 SCR 438], Smt.Ganga Bai v. Vijay Kumar & Ors. [1974 (2) SCC 393], M/s.Ganesh Trading Co. v. Moji Ram [1978 (2) SCC 91] and various other authorities, this Court in B.K.N. Pillai v. P.Pillai & Anr. [JT 1999 (10) SC 61] held: "3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

¶6If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for."

¶14In Rajesh Kumar Aggarwal & Ors vs K.K. Modi reported in 2006 (4) SCC 385, the Supreme Court has held the Court should allow the amendment that may be necessary for determining the real controversy to avoid the multiplicity of proceedings. Paragraph Nos. 15, 16 and 18 of Rajesh Kumar Aggarwal & Ors vs K.K. Modi (supra) is quoted as under:- "15. 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.

¶16Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

¶18As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court."

¶15In my view, no illegality has been committed by the appellate court in allowing the amendment application filed by the plaintiff-respondent. While deciding the amendment application, the court below has recorded a finding that the plaintiff-applicant has satisfactorily explained the delay in filing amendment application. By the proposed amendment nature of suit has not changed. Plaintiff-applicant has not withdrawn any admission by the proposed amendment nor has prayed for any new relief. Explanation sought to be added by the proposed amendment is necessary for deciding the real controversy between the parties. Finding recorded by the court below is quoted as under:- "

Jूंकिकव卣渹किदनी/

अपील卣渹ቕኌनी्ቛ 卣渹र卣渹व卣渹दप䃛加म㝮㜞किकय䧍䁕⸶䁆卣渹रह䧍䁕䧭勅ं"ोधनको

किवलम्ब䧭勅䧍䁕्ቚ स्तुतकरन䧍䁕क卣渹䧭勅ंतोष⸶䁆नकस्प्ቖीकरणकिदय卣渹⸶䁆卣渹Jुक卣渹ह屋敀㝞㝇

्ቚ स्त卣渹किवत䧭勅ं"ोधन䧭勅䧍䁕व卣渹दक⸗䂚्ቚ कृतितपरिरवቔኌततनहीहोतीह屋敀,

व卣渹किदनी/

अपील卣渹ቕኌनीकिक䧭勅ीस्वीक卣渹रोकिU कोव卣渹प䧭勅नहील䧍䁕रहीह렾솟औरनहीकिक䧭勅ी

नय䧍䁕अनुतोषक⸗䂚य卣渹Jन卣渹क⸗䂚यी㝞㝇व卣渹किदनी/

अपील卣渹ቕኌनी्ቛ 卣渹र卣渹अपन䧍䁕व卣渹दप䃛加

म㝮㜞⸶䁆ोस्प्ቖीकरण䧭勅ं"ोधनक䧍䁕म卣渹ध्यम䧭勅䧍䁕किदय卣渹⸶䁆卣渹रह卣渹ह屋敀वहप鱺ꘟक卣渹र䧉䦕क䧍䁕

बीJ उत्प퐯व卣渹स्तकिवककिवव卣渹दक䧍䁕्ቚ भ卣渹वीन्य卣渹यकिनण2यनक䧍䁕लिल䁛㞏आवश्यक

प卣渹य卣渹⸶䁆卣渹त卣渹ह屋敀㝞㝇"

¶16Learned counsel for the petitioner could not point out any perversity or illegality in the findings recorded by the court below except for grounds of objections raised above.

¶17Accordingly, the writ petition lacks merit and is dismissed. Interim order, if any, is discharged. Order Date: 17.07.2025 Nitika Sri. (Manish Kumar Nigam,J.) High Court of Judicature at Allahabad