State
Bank of Hyderabad Vs. Town Municipal Council [2006] Insc
889 (1 December 2006)
S.B.
Sinha & Markandey Katju
(Arising
out of SLP (C) No. 21178-21179 of 2005) S.B. Sinha, J.
Leave
granted.
Appellant
-Bank filed a suit against the respondent. The suit related to ownership of a
plot admeasuring 610 ft. x 250 ft. situated in the town Yadgir. It was
purchased by the plaintiff in a public auction. Allegedly, the respondent is
now claiming back the said amount. The suit was initially filed for a decree
for injunction. The respondent filed another suit in the same court also for a
suit for permanent injunction restraining the Bank from constructing any
building. The suit of the appellant was dismissed whereas the suit of the
respondent was decreed. Appeals were preferred there against by both the
parties. In the said appeals, an application was filed for grant of leave to
amend the plaint. The said application for grant of leave to amend the plaint
was allowed by the appellate court by an order dated 7.04.2003.
The
appellate court remanded both the suits to the trial court for their disposal
afresh on merits. Second Appeals were filed by the respondent herein before the
High Court. The High Court by reason of the impugned judgment opined that the
said application for amendment was not maintainable in view of the proviso
appended to Order VI, Rule 17 of the Code of Civil Procedure (Code). On the
said finding not only the order granting leave to amend the plaint was set
aside, the appeals were also allowed and the matter was remitted to the first
appellate court for its consideration afresh in accordance with law.
The
appellant is, thus, before us.
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.
Order
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." 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." Section 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;" In 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.
The
High Court relied upon the said proviso and opined that having regard thereto
the plaintiff was obligated to establish that in spite of due diligence it
could not have raised the matter before commencement of the trial of the suit.
The High Court evidently committed an illegality in relying upon the said
provision.
The
learned counsel appearing on behalf of the respondent, however, would submit
that the application for amendment being belated, the same should not have been
entertained.
It is
one thing to say that the application for amendment suffers from delay or laches
but it is another thing to say that thereby the defendant was prejudiced. It is
also not a case of the respondent that by reason of such an amendment, the
relief which could not be granted having regard to the law of limitation has
become available. The court even in such a case is not powerless although the question
as to whether the relief sought for would be otherwise barred by limitation is
a relevant factor to determine the issue.
This
aspect of the matter has been considered by this Court in L.J. Leach and
Company Ltd. v. Jardine Skinner and Co. [(1957) SCR 438] in the following
terms:
"It
is no doubt true that courts would, as a rule, decline to allow amendments, if
a fresh suit on the amended claim would be barred by limitation on the date of
the application. But that is a factor to be taken into account in exercise of
the discretion as to whether amendment should be ordered, and does not affect
the power of the court to order it, if that is required in the interests of
justice" L.J. Leach and Company Ltd. (supra) was referred to in Pirgonda Hongonda
Patil v. Kalgonda Shidgonda Patil and Others [(1957) SCR 595] holding:
"We
think that the correct principles were enunciated by Batchelor J. in his
judgment in the same case, viz., Kisandas Rupchand's case, when he said at pp.
649-650 : "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...... but I refrain from citing further authorities,
as, in my opinion, they all lay down precisely the same doctrine. That
doctrine, as I understand it, is that 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. It is merely a particular case of this
general rule that where a plaintiff seeks to amend by setting up a fresh claim
in respect of a cause of action which since the institution of the suit had
become barred by limitation, the amendment must be refused; to allow it would
be to cause the defendant an injury which could not be compensated in costs by
depriving him of a good defence to the claim. The ultimate test therefore still
remains the same: can the amendment be allowed without injustice to the other
side, or can it not ?"
Batchelor
J. made these observations in a case where the claim was for dissolution of
partnership and accounts, the plaintiffs alleging that in pursuance of a
partnership agreement they had delivered Rs. 4,001 worth of cloth to the
defendants. The Subordinate Judge found that the plaintiffs did deliver the
cloth, but came to the conclusion that no partnership was created. At the
appellate stage, the plaintiffs abandoned the plea of partnership and prayed
for leave to amend by adding a prayer for the recovery of Rs. 4,001. At that
date the claim for the money was barred by limitation. It was held that the
amendment was rightly allowed, as the claim was not a new claim." [See
also Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC
385, Pankaja and Another v. Yellappa (Dead) By LRs. and Others, (2004) 6 SCC
415, Baldev Singh & Ors. v. Manohar Singh & Anr. etc. JT 2006 (7) SC
139, Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166 and
A.K. Gupta and Sons v. Damodar Valley Corporation, (1966) 1 SCR 796] As the
High Court has failed to invoke the law as it then existed, we do not think
that it was correct in its view.
For
the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. The appeal is allowed and the matter is remitted to the
High Court for consideration of the appeal afresh in accordance with law. All
contentions of the parties shall, however, remain open.
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