Rajkumar Gurawara (Dead) Thr. LRS. Vs. M/S. S.K.Sarwagi & Co. Pvt.
Ltd. & ANR. [2008] INSC 924 (14
May 2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of SLP (C)
No. 21014 of 2004) Rajkumar Gurawara (Dead) Thr. L.Rs. .... Appellant (s)
Versus M/s S.K. Sarwagi & Co. Pvt. Ltd. & Anr. ....
Respondent(s)
P. Sathasivam, J.
1) Leave granted.
2) Challenge in this appeal is the
order dated 17.08.2004 of the High Court of Andhra Pradesh at Hyderabad in
Civil Revision Petition No. 1738 of 2004 whereby the High Court allowed the
revision filed by respondent No.1 herein.
3) The brief facts leading to the
filing of this appeal are:
On 05.01.1948, the father of the
appellant purchased the suit lands at Ayitham Valasa Village, Grividi Mandal,
Vizianagaram, Andhra Pradesh along with some other properties for Rs.9,176/- at
a public auction held under the liquidation proceedings in O.P. No. 30 of 1946
on the file of the District Court at Vizianagaram before the Official
Liquidator at Vizagpatnam (Visakhapatnam) in the matter of the Indian Companies
Act, 1913 and of the Vizianagaram Mining Co. Ltd. in liquidation and the Rajah
Saheb and others as creditors in pursuance of the order dated 6.3.1946 passed
by the High Court of Madras in O.P. No. 25 of 1946. The suit lands were
registered on 30.4.1948 under the Registered Document No. 732 of 1948 in Book
I, Volume 346 at pages 147 to 151 in the office of the Registrar at
Vizianagaram in favour of the father of the appellant conveying, transferring
and assigning all the rights including ownership, possession and interests of
Vizianagaram Mining Co. Ltd., i.e., right to mining operations, use and sell
the said lands. The mining operations were carried over the said lands in the
name and style as M/s Ashwani Rajkumar Mining & Trading Company by the
father of the appellant. In 1958, the father of the appellant expired. After
the death of father, the appellant was 2 carrying the mining operations. In
1960, the appellant left Vizianagaram for Jagadalpur because of his other
business work. In 2001-2002, the appellant came to know that respondent No.2 -
State of Andhra Pradesh, was planning to lease out the said lands for mining
operation to other companies. On 22.3.2002, the appellant issued a notice under
Section 80 C.P.C. to the State through his counsel asking the State not to give
the suit property on lease to any other party and not to interfere with the
rights and interest of the appellant over the suit lands. On 8.7.2002, the appellant
came to know that respondent No.2-State has invited some companies to take the
suit lands on lease against the rights and interest of the appellant. On
20.8.2002, the appellant filed Original Suit No.6 of 2002 in the Court of the
Additional District Court, Vizianagaram seeking declaration of his exclusive
right to do mining operation, to use and sell over the suit lands against
respondent No.2' s infringement of such exclusive right of the appellant over
the suit lands. An application of ad-interim injunction was also filed
restraining respondent No.2 from ever leasing the suit land to strangers 3
against the interest of the appellant over the said lands.
When the trial was about to close
in the said suit, on 11.6.2003, an application under Order 1 Rule 10 CPC was
filed by respondent No.1 herein to be added as defendant No.2 in the original
suit on the ground that a deed has been executed in its favour by the State
leasing the suit lands for mining operations. On 11.7.2003, the said
application was allowed by the Additional District Judge and respondent No.1
herein was added as defendant No.2 in the original suit.
Thereafter on 14.10.2003, an
application was moved on behalf of respondent No.1 for appointment of a local
Commissioner to note the physical features of the suit lands and to file his
report. The said application was allowed by order dated 23.10.2003 and a local
Commissioner was appointed. On 3.12.2003, the Commissioner inspected the suit
lands and filed its report stating that the suit lands were in possession of
respondent No.1 and mining operations were carried by it. In December, 2003
itself, the appellant herein moved an application under Order VI Rule 17 C.P.C.
for 4 amendment of the plaint and also consequential relief for possession of
the suit lands and for damages trespassing into and carrying on mining
operations on the suit lands and the same was allowed on 10.3.2004. Against the
said order, respondent No.1 approached the High Court by way of revision
petition. By order dated 17.8.2004, the High Court allowed the said revision
petition. Aggrieved by the said order, the above appeal has been filed by way
of special leave.
4) Heard Mr. Siddharth Luthra,
learned senior counsel appearing for the appellants and Mr. A.V. Rangam,
learned counsel appearing for respondent No.1 and Mr. Manoj Saxena, learned
counsel appearing for respondent No.2.
5) Originally, the
appellant/plaintiff filed the suit for declaration of his exclusive right to do
mining operation in the suit property. However, after impleadment of M/s S.K.
Sarwagi and Company as second
defendant (first respondent herein) after closing of the evidence and during
the course of argument, the plaintiff filed an application under Order VI Rule
17 read with 151 CPC for amendment of the plaint praying for possession over
the plaint schedule mentioned 5 property from the defendants and for grant of
damages of Rs.
5.00 lacs in favour of the
plaintiff for their mining operations without consent of the plaintiff in the
plaint schedule property. Though the learned Additional District Judge allowed
the application for amendment on payment of cost of Rs. 300/- the High Court in
a civil revision filed under Article 227 of the Constitution of India set aside
the same and dismissed the application for amendment which is the subject
matter in this appeal. In order to consider whether the appellant/plaintiff has
made out a case for amendment of his plaint, it is useful to refer Order VI
Rule 17 CPC which reads as under:- "17. Amendment of pleadings.- 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:
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."
The first part of the rule makes
it abundantly clear that at any stage of the proceedings, parties are free to
alter or 6 amend their pleadings as may be necessary for the purpose of
determining the real questions in controversy. However, this rule is subject to
proviso appended therein. The said rule with proviso again substituted by Act
22 of 2002 with effect from 01.07.2002 makes it clear that after the
commencement of the trial, no application for amendment shall be allowed.
However, if the parties to the
proceedings able to satisfy the court that in spite of due diligence could not
raise the issue before the commencement of trial and the court satisfies their
explanation, amendment can be allowed even after commencement of the trial. To
put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to
allow either party to alter or amend his pleadings at any stage of the
proceedings on such terms as may be just. Such amendments seeking determination
of the real question of the controversy between the parties shall be permitted
to be made. Pre-trial amendments are to be allowed liberally than those which
are sought to be made after the commencement of the trial. As rightly pointed
out by the High Court in the former case, the opposite party is not prejudiced
because he will have an 7 opportunity of meeting the amendment sought to be
made. In the latter case, namely, after the commencement of trial,
particularly, after completion of the evidence, the question of prejudice to
the opposite party may arise and in such event, it is incumbent on the part of
the Court to satisfy the conditions prescribed in the proviso.
6) With this background, let us
consider the application filed by the plaintiff and the orders passed by the
District Court as well as the High Court. We have already stated that
originally the suit was filed against the sole defendant and subsequently the
second defendant came on record as per the order dated 11.07.2003. It is the
case of the plaintiff that he is the absolute owner of the suit schedule lands.
It is not in dispute that prior to filing of the suit, notices were exchanged
between the parties. In their reply dated 18.8.2001 to the plaintiff's notice,
it was specifically asserted that the first respondent herein, namely M/s S.K.
Sarwagi & Co. Pvt. Ltd. is carrying on mining activities in the suit
schedule lands. The perusal of the reply notice issued by D-2 to the plaintiff,
which has been extracted by the High Court in the impugned order, 8 clearly
shows that the plaintiff was made known that the suit lands were in possession
of D-2 having taken them on lease from the Government. With the said
information in the reply notice about the mining being carried on by D-2, the
plaintiff filed the said suit without impleading him for possession and
damages.
7) The other relevant fact to be
noted is the plea taken in the written statement filed by D-1 wherein, it is
specifically stated that the suit schedule lands are classified as poramboke
lands in survey and settlement operations and that the Government issued G.O.
Ms. No. 459 (Industries and Commerce) Department, dated 28.11.1998 leasing out
an extent of 18.35 hectares of land covered under Survey Nos.
106 and 107 of Ayitham Valasa
Village in favour of A.P.
Mineral Development Corporation
for mining purpose for twenty years. It is further averred that the Government
in G.O. Ms. No. 102 (Industries and Commerce) Department, dated 20.2.2001
issued Orders transferring the mining lease held by A.P. Mineral Development
Corporation in favour of M/s Sarwagi and Co. Pvt. Ltd. for the unexpired period
of 9 lease, i.e. upto 1.6.2019. As rightly observed by the High Court, it is
explicit from the written statement filed by D-1 that the plaintiff was made
known of the fact that the Government issued order transferring mining lease
held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co.
P. Ltd. (D-2) and the leased lands are in possession and enjoyment of M/s
Sarwagi & Co. P. Ltd. As rightly pointed out by the learned counsel for the
contesting respondent, in spite of the plaintiff being put in knowledge of the
act of the person in possession of the suit property did not chose to implead
the said M/s Sarwagi & Co. P. Ltd. (D-2) which came on record on its own
application as D-2 in the suit. It is clear that in spite of reply notice and
specific plea taken in the written statement of D-1, the plaintiff did not
chose to take steps to get the plaint amended suitably and instead allowed the
suit to go on and examined the witnesses on his behalf and cross-examined the
witnesses produced by the defendants. Only during the stage of arguments, the
plaintiff came up with an application under Order VI Rule 17 seeking amendment
of the pleadings. We have already 10 explained the implication of proviso to
Rule 17. Though even after commencement of the trial, parties to the proceeding
are entitled to seek amendment, in the light of the factual details such as
clear information in the reply notice prior to the filing of the suit and
specific plea in the written statement of D-1 which contained details of
Government Orders leasing out the suit property in favour of D-2, the action of
the plaintiff at the stage of argument can not be permitted. Admittedly, the
plaintiff failed to adhere to the said recourse at the appropriate time.
Further it is relevant to point out that in the original suit, the plaintiff
prayed for declaration of his exclusive right to do mining operations and to
use and sell the suit schedule property and in the petition filed during the
course of the arguments, he prayed for recovery of possession and damages from
the second defendant. It is settled law that the grant of application for
amendment be subject to certain conditions, namely, (i) when the nature of it
is changed by permitting amendment; (ii) when the amendment would result
introducing new cause of action and intends to prejudice the other party; (iii)
when allowing amendment application defeats 11 the law of limitation. The
plaintiff not only failed to satisfy the conditions prescribed in proviso to
Order VI Rule 17 but even on merits his claim is liable to be rejected. All
these relevant aspects have been duly considered by the High Court and rightly
set aside the order dated 10.3.2004 of the Additional District Judge.
8) In the result, we find no merit
in the appeal and the same is dismissed. There shall be no order as to costs.
........................................J.
(Dr. Arijit Pasayat)
.........................................J.
New Delhi; (P. Sathasivam) May 14,
2008.
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