# Braj Bhushan Lal Awasthi v. Smt. Urmila & Ors

- **Citation:** (2022) 9 ILRA 735
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-28
- **Case number:** Matters U/A 227 No. 115 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/braj-bhushan-lal-awasthi-v-smt-urmila-ors-49270
- **Pages:** 10

## Headnote

Civil Law- Code of Civil Procedure, 1908-
Order VI Rule 17 of CPC- Amendment
application dismissed on the ground of
delay- In compliance of order of High
Court, Court below has proceeded to
decide the suit and accordingly, evidences
of both the parties were closed and matter
was listed for final argument. At this
stage, petitioner-plaintiff has preferred
amendment
application,
which
was
rejected vide impugned order dated-Once
the Court has granted liberty to file
second amendment application, there is
no occasion for the petitioner-plaintiff to
wait for three years when the suit was
listed for final hearing and also, in the
mean time, he himself has filed Civil Misc.
Writ-C No. 12630 of 2013 before this
Court for early disposal of suit. In fact, it
is nothing but an attempt to linger on the
proceeding by filing such amendment
application, therefore, Court below has
taken right view that it is nothing but an
attempt to raise the complexity in the
matter and allowing the amendment
application would change the nature of
case based on those facts which were very
well in the knowledge of petitionerplaintiff since the date of filing of suit-
Intention of petitioner-plaintiff is not fair
in filing amendment application. On one
hand, petitioner-plaintiff himself has filed
writ petitions for early disposal of suit and
on the other hand, he has taken chance to
linger
on
the
proceeding
by
filing
amendment application at a very belated
stage- While dealing such situation where
amendment application is filed at a very
belated stage, it is required to be seen as
to whether it has been filed with clean
hand, bonafide intention or only with
intention to delay the proceedings and if
the second one is found, no interference is
required as the present case is.

Where the Court finds that the amendment
application has been filed at a highly belated
stage for merely lingering the suit, changing the
nature of the suit and for oblique motives then
the same is liable to be rejected on this ground.
(Para 18, 19, 20)

Petition accordingly rejected. (E-3)

Case
Law/
Judgements
relied
upon/
discussed:-

## Text

9 All. Braj Bhushan Lal Awasthi Vs. Smt. Urmila & Ors.
735
which is beyond the period of limitation
and that there is a abuse of process of law.

13. Accordingly, the petition is
devoid of merit and is dismissed with the
costs of Rs.5,000/- as Sections 4 and 5 of
Cr.P.C. cannot be made applicable to the
facts of this case as we have elaborately
discussed that the complainant/informant
has not invoked the provisions of the
special Act (N.I. Act) but the alleged
commission of offences punishable under
the Indial Penal Code triable as per
procedural law i.e. Criminal Procedure
Code, the investigation cannot be quashed.
----------
(2022) 9 ILRA 735
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters U/A 227 No. 115 of 2022

Braj Bhushan Lal Awasthi ...Petitioner
Versus
Smt. Urmila & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dharmendra Kumar Singh

Counsel for the Respondents:
Sri Shobhit Saxena, Sri Kirti Kumar

Civil Law- Code of Civil Procedure, 1908-
Order VI Rule 17 of CPC- Amendment
application dismissed on the ground of
delay- In compliance of order of High
Court, Court below has proceeded to
decide the suit and accordingly, evidences
of both the parties were closed and matter
was listed for final argument. At this
stage, petitioner-plaintiff has preferred
amendment
application,
which
was
rejected vide impugned order dated-Once
the Court has granted liberty to file
second amendment application, there is
no occasion for the petitioner-plaintiff to
wait for three years when the suit was
listed for final hearing and also, in the
mean time, he himself has filed Civil Misc.
Writ-C No. 12630 of 2013 before this
Court for early disposal of suit. In fact, it
is nothing but an attempt to linger on the
proceeding by filing such amendment
application, therefore, Court below has
taken right view that it is nothing but an
attempt to raise the complexity in the
matter and allowing the amendment
application would change the nature of
case based on those facts which were very
well in the knowledge of petitionerplaintiff since the date of filing of suit-
Intention of petitioner-plaintiff is not fair
in filing amendment application. On one
hand, petitioner-plaintiff himself has filed
writ petitions for early disposal of suit and
on the other hand, he has taken chance to
linger
on
the
proceeding
by
filing
amendment application at a very belated
stage- While dealing such situation where
amendment application is filed at a very
belated stage, it is required to be seen as
to whether it has been filed with clean
hand, bonafide intention or only with
intention to delay the proceedings and if
the second one is found, no interference is
required as the present case is.

Where the Court finds that the amendment
application has been filed at a highly belated
stage for merely lingering the suit, changing the
nature of the suit and for oblique motives then
the same is liable to be rejected on this ground.
(Para 18, 19, 20)

Petition accordingly rejected. (E-3)

Case
Law/
Judgements
relied
upon/
discussed:-

1. Smt. Anju Vs Satish Kumar 2018 (127) ALR
557 (cited)

2. St. Bank of Hyderabad Vs Town Municipal
Council; 2007 (1) SCC 765 (cited)

3. B K Mittal Vs Sakya Centre Society & ors.;
2010 LawSuit(Utt) 1559 (cited)
736 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Mount Mary Enterprises Vs M/s. Jivratna Medi
Treat Pvt. Ltd.; 2015 0 Supreme(SC) 89 (cited)

5. Mahila Ramkali Devi & ors. Vs Nandram (D)
Thr. Lrs. & ors.; 2015 0 Supreme(SC) 438(cited)

6. Rameshkumar Agarwal Vs Rajmala Exports
Pvt. Ltd. & ors..; 2012 0 Supreme(SC) 270
(cited)

7. Prithi Pal Singh & anr Vs Amrik Singh & ors.;
2013 0 Supreme(SC) 158

(Delivered by Hon'ble Neeraj Tiwari, J.)

1.

Heard
learned
counsel
for
petitioner and Sri Kirti Kumar Nirkhi,
learned counsel for opposite party.

2. Present petition has been filed
seeking following reliefs :-

"(I) Set aside the order dated
01.12.2021 passed by the 3rd Additional
District Judge, Kanpur Dehat in Civil
Revision No. 25/2013 (Braj Bhushan Vs.
Smt. Urmila Devi and others) as well as
order
dated
11.07.2013
passed
by
Additional Civil Judge (Senior Division),
Kanpur Dehat.

(II) Direct the court below to
allow the amendment application (paper
No. 289-Ka) dated 08.04.2013 filed by the
petitioner before the Trial Court."

3. Learned counsel for petitioner
submitted that plaintiff-petitioner has filed
Original Suit No. 2 of 1993 along with
interim injunction application in the year
1993 for cancellation of sale deed, which
was rejected vide order dated 08.02.1994.
Against the said rejection order, plaintiffpetitioner preferred Appeal No. 173/1994.
During the pendency of appeal, plaintiffpetitioner has filed amendment application
for amending the plaint. The said appeal as
well
as
amendment
application
was
rejected. Against both the orders, plaintiffpetitioner has preferred Writ Petition No.
28148 of 1998 before this Court, which
was dismissed vide order dated 17.09.2010.
However, liberty was given to the plaintiffpetitioner to file amendment application
before the Court below. It is next submitted
that
in
compliance
of
order
dated
17.09.2010, plaintiff-petitioner has filed
amendment application in Original Suit No.
2 of 1993 under Order VI Rule 17 read
with Section 151 CPC on 08.04.2013. In
amendment application, he has clarified the
facts and also brings on record certain new
facts, which was not in his knowledge at
the time of filing of plaint. Opposite party
has also filed objection and trial Court vide
order dated 11.07.2013 has dismissed the
amendment application on the ground of
delay. Aggrieved by the order dated
11.07.2013,
plaintiff-petitioner
has
preferred Civil Revision No. 25 of 2013
before the District Judge on 15.02.2014,
which was also dismissed vide order dated
01.12.2021 without considering the facts of
the case. Hence the present petition.

4. Learned counsel for petitioner
submitted
that
plaintiff-petitioner
has
challenged the orders dated 01.12.2021 as
well as 11.07.2013 basically on the ground
that under Order VI Rule 17 of CPC,
amendment application may be allowed at
any stage of proceedings and the same
cannot be rejected only on the ground of
laches. Such dismissal order preclude the
plaintiff-petitioner from justice. It is next
submitted
that
while
rejecting
the
amendment application, it is required on
the part of Court below to see as to whether
it is filed with ill intention or with clean
hands. Court below was also required to
see as to whether in case of rejection of
amendment application, either of the
9 All. Braj Bhushan Lal Awasthi Vs. Smt. Urmila & Ors.
737
parties would suffer from injustice or not,
therefore, in the larger interest of justice,
ignoring the delay, amendment application
has to be allowed. In support of his
contention, he has placed reliance upon the
judgment of Apex Court passed in the
matter of Prithi Pal Singh & another vs.
Amrik
Singh
&
others;
2013
0
Supreme(SC) 158 decided on 13.02.2013
and submitted that amendment application
may be allowed even at the second
appellate stage. Further, he has placed
reliance
upon
the
judgment
of
Rameshkumar
Agarwal
vs.
Rajmala
Exports Pvt. Ltd. & Ors.; 2012 0
Supreme(SC) 270 decided on 30.03.2012
and submitted that while considering the
amendment application filed under Order
VI Rule 17 of CPC, it is required on the
part of Court below to take liberal view. In
the matter of Mahila Ramkali Devi and
others vs. Nandram (D) Thr. Lrs. and
others; 2015 0 Supreme(SC) 438 and
Mount Mary Enterprises vs. M/s. Jivratna
Medi Treat Pvt. Ltd.; 2015 0 Supreme(SC)
89 decided on 30.01.2015, Apex Court has
held that if amendment application has not
been filed with malafide intention, it is
required on the part of Court below to take
liberal view. He further submitted that in
the matter of B K Mittal vs. Sakya Centre
Society and others; 2010 LawSuit(Utt)
1559 decided on 17.09.2010, High Court of
Uttaranchal has also taken same view and
held that amendment application cannot be
rejected on the ground of delay, in case
there is no injustice.

5. Learned counsel for petitioner
further submitted that it is undisputed that
original suit was filed in the year 1993 and
provisions of CPC i.e. Order VI Rule 17
was
amended
vide
Civil
Procedure
(Amendment)
Act,
2002
(hereinafter
referred to as ''Act, 2002') which came into
force w.e.f. 01.07.2002. Rule 16(1)(b) of
Act, 2002 provides that provisions of rules,
5, 15, 17 & 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 or Civil Procedure (Amendment)
Act, 1999 and section 7 of this Act. In
support of his contention, he has placed
reliance upon the judgment of Apex Court
in the matter of State Bank of Hyderabad
vs. Town Municipal Council; 2007 (1)
SCC 765.

6. Sri Kirti Kumar Nirkhi, learned
counsel for opposite party has vehemently
opposed the submissions of learned counsel
for petitioner and submitted that first of all,
amendment application was rejected on the
ground that amendment application so filed
was not in accordance with Order VI Rule
17 of CPC, which provides that amendment
can
only
be
allowed
prior
to
commencement of trial and further, after
due diligence, if plaintiff-petitioner could
not produce relevant facts. He also
submitted that while dismissing Writ-C No.
28148 of 1998, though this Court has given
liberty to the plaintiff-petitioner to file
amendment application, but also directed
the Court below to decide the appeal
expeditiously and dispose of the Suit No.
2/1993 at the earliest. It is next submitted
that intention of this Court was very much
clear that the suit has to be decided at the
earliest, but without any reason, after delay
of more than three years, petitioner-plaintiff
has filed amendment application again.
Court below has rejected the same with
clear cut finding of fact that evidence in the
said suit is closed and matter is listed for
argument. Further, in the amendment
738 INDIAN LAW REPORTS ALLAHABAD SERIES
application, nowhere it is mentioned that
amendment so required in the plaint,
relevant facts are not known to the
plaintiff-petitioner earlier. Therefore, Court
below has rightly rejected the amendment
application alongwith finding of fact not
denied by the plaintiff-petitioner.

7. It is next submitted that not only
this, earlier this Court vide order dated
17.09.2010 passed in Writ-C No. 28148 of
1998 has directed the Court below to
decide the suit within one year. The said
order was never produced before the Court
below.
Lastly,
it
is
submitted
that
undisputedly, suit is pending since, 1993.
Rejection of first amendment application
has attained finality in the year 2010 with
liberty to the plaintiff-petitioner to file fresh
amendment application and also there was
direction of this Court to decide the suit at
the earliest, but no amendment application
has been filed for more than three years.
Therefore, there is no illegality in the order
dated 01.12.2021 passed by Court below.
He next submitted that plaintiff-petitioner
has also filed Civil Misc. Writ-C No. 12630
of 2013, which is not disclosed in the
affidavit and in that petition too, direction
was issued by this Court vide order dated
08.03.2013 to decide the suit within six
months. In support of his contention, he has
placed reliance upon the judgment of this
Court passed in Smt. Anju vs. Satish
Kumar 2018 (127) ALR 557 and submitted
that ingredients of Order VI Rule 17 of
CPC is required to be fulfilled, meaning
thereby amendment application can only be
allowed in case facts are not brought into
the knowledge of plaintiff-petitioner even
after due diligence at the time of filing of
suit.

8. I have considered the rival
submissions of learned counsels for parties
and perused the provisions of CPC
applicable in the present matter as well as
judgments relied upon.

9. Issue before the Court is as to
whether in light of Order VI Rule, 17 of
CPC, up to what stage, amendment
application may be allowed and what
would be the consequences of delay in
filing of amendment application. For ready
reference, Order VI Rule 17 is quoted
below:-

"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."

10. Learned counsel for the petitioner
submitted that in case of amendment, Apex
Court and this Court has taken consistent
view that amendment application may be
allowed even at second appellate stage and
court below is required to take liberal view.
He has placed reliance upon the judgment
of Apex Court in the matter of Prithi Pal
Singh (Supra). Relevant paragraphs of the
said judgment is quoted below:-

"Shri P.S. Patwalia, learned senior
counsel appearing for the Petitioners
argued that even though this Court granted
leave to Respondents No. 2 to amend the
9 All. Braj Bhushan Lal Awasthi Vs. Smt. Urmila & Ors.
739
plaint, the learned Single Judge should
have dismissed the second appeal as barred
by time because the amendment was filed
much after expiry of the limitation. He
further argued that while dismissing the
second appeal, the learned Single Judge did
not consider the amendment made in
Section 15 of the Act by Haryana
Amendment Act No. 10 of 1995 and on this
ground alone the impugned judgment is
liable to be set aside.

12. In our opinion, there is no
merit in the submissions of the learned
Counsel. A reading of the order passed by
this Court shows that the application for
amendment filed by Respondent No. 2 was
allowed
without
any
rider/condition.
Therefore, it is reasonable to presume that
this Court was of the view that the
amendment in the plaint would relate back
to the date of filing the suit. That apart, the
learned Single Judge has independently
considered the issue of limitation and
rightly concluded that the amended suit
was not barred by time."

11. He has also placed reliance upon
the judgment of Apex Court in the matter
of
Rameshkumar
Agarwal
(Supra).
Relevant paragraphs of the said judgment is
quoted below:-

"9. In Rajkumar Gurawara (Dead)
through L.Rs v. S.K. Sarwagi and Co. Pvt.
Ltd. and Anr.; (2008) 14 SCC 364, this
Court considered the scope of amendment
of
pleadings
before
or
after
the
commencement of the trial. In paragraph
18, this Court held as under:

"...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 in introducing new cause of
action and intends to prejudice the other
party; (iii) when allowing amendment
application defeats the law of limitation...."

10. In Revajeetu Builders and
Developers v. Narayanaswamy and Sons
and Ors. (2009) 10 SCC 84, this Court once
again considered the scope of amendment
of pleadings. In paragraph 63, it concluded
as follows:

"Factors
to
be
taken
into
consideration
while
dealing
with
applications for amendments

6 3 . On critically analysing both
the English and Indian cases, some basic
principles emerge which ought to be taken
into consideration while allowing or
rejecting the application for amendment:

(1)
whether
the
amendment
sought is imperative for proper and
effective adjudication of the case;

(2) whether the application for
amendment is bona fide or mala fide;

(3) the amendment should not
cause such prejudice to the other side
which cannot be compensated adequately
in terms of money; (4) refusing amendment
would in fact lead to injustice or lead to
multiple litigation;

(5)
whether
the
proposed
amendment
constitutionally
or
fundamentally changes the nature and
character of the case; and

(6) as a general rule, the court
should decline amendments if a fresh suit
on the amended claims would be barred by
limitation on the date of application.

These are some of the important
factors which may be kept in mind while
dealing with application filed under Order
6 Rule 17. These are only illustrative and
not exhaustive."

11. It is clear that while deciding
the application for amendment ordinarily
the Court must not refuse bona fide,
legitimate,
honest
and
necessary
740 INDIAN LAW REPORTS ALLAHABAD SERIES
amendments and should never permit mala
fide and dishonest amendments. The
purpose and object of Order 6 Rule 17 of
the Code is to allow either party to alter or
amend his pleadings in such manner and on
such terms as may be just. Amendment
cannot be claimed as a matter of right and
under all circumstances, but the Courts
while deciding such prayers should not
adopt a hyper-technical approach. Liberal
approach should be the general rule
particularly, in cases where the other side
can be compensated with costs. Normally,
amendments are allowed in the pleadings to
avoid multiplicity of litigations."

12. He further placed reliance upon
the judgment of Apex Court in the matter
of Mahila Ramkali Devi (Supra). Relevant
paragraphs of the said judgment is quoted
below:-

17.
The
application
for
amendment of plaint filed by Appellant No.
1 to make Appellant Nos. 2 to 5 fall under
Class XVII of the Madhya Pradesh Land
Revenue Code was rejected by learned
Single Judge of the High Court on the
ground that the same would change the
nature of the suit which was filed 40 years
ago, as the claim was made solely on the
basis of Will and not on the basis of
inheritance. The High Court allowed the
appeal vide the impugned judgment as the
Appellants had no locus standi to file the
suit
as
Ajuddhibai
could
not
have
transferred her interest through a Will.
Hence, present appeal by special leave by
the Plaintiffs.

19. It appears thus while disposing
of the appeal, the High Court has not gone
into the amended plaint. By amendment, the
Plaintiff-Appellant not only sought to add the
names of Dinesh, Satish, Sanjay and
Rajendra sons of Baijnath Prasad Saxena in
the category of Plaintiffs, but also sought to
make necessary amendment in paragraph 3 of
the plaint. The averment sought to be
incorporated in paragraph 3 of the plaint by
amendment is reproduced hereunder:

"Vikalp
me
yadi
vasiyatnama
vaidya na mana jave to be Ajudhibai ke
karibtar varies vadini ke ladke Rajendra,
Dinesh, Satish aur Sanjay hi hai jo abhi
nabalig hai aur yeha dava unke hito ko
represent karte huai unki maliki ke adhar par
bhi prastut hai. Vadini ke dekh-rekh me ladke
rahte hai. Garj yahe hai ki har halat me
prativadigan ki koi swatva v mukable vadini
avam uske ladke nahi hai. Aur vadini
vivadagrast aaraji ka kabja apne tatha
ladkon ko aur se pane ki patra hai."

As translated in English "In
alternative, if the will is not held valid, yet the
Plaintiff's sons Rajendra, Dinesh, Satish,
Sanjay, who at present are minors are near
relations of Ajudhibai and this suit is
submitted to represent their interests on basis
of their ownership. The sons live in care of
Plaintiff meaning thereby in every condition
there is no right of Defendants competing
Plaintiff. And the Plaintiff herself and on
behalf of her sons is entitled to get possession
of the suit land."

20. It is well settled that rules of
procedure are intended to be a handmaid to
the administration of justice. A party cannot
be refused just relief merely because of some
mistake, negligence, inadvertence or even
infraction of rules of procedure. The Court
always gives relief to amend the pleading of
the party, unless it is satisfied that the party
applying was acting malafide or that by his
blunder he had caused injury to his opponent
which cannot be compensated for by an order
of cost.

21. In our view, since the
Appellant sought amendment in paragraph
3 of the original plaint, the High Court
ought not to have rejected the application."
9 All. Braj Bhushan Lal Awasthi Vs. Smt. Urmila & Ors.
741

13. He next submitted that Apex
Court has taken the same view in the matter
of Mount Mary Enterprises (Supra).
Relevant paragraphs of the said judgment is
quoted below:-

7 . In our opinion, as per the
provisions of Order 6 Rule 17 of the Code
of
Civil
Procedure,
the
amendment
application should be normally granted
unless by virtue of the amendment nature
of the suit is changed or some prejudice is
caused to the Defendant. In the instant case,
the nature of the suit was not to be changed
by virtue of granting the amendment
application because the suit was for
specific performance and initially the
property had been valued at Rs. 13,50,000/-
but as the market value of the property was
actually Rs. 1,20,00,000/-, the AppellantPlaintiff had submitted an application for
amendment so as to give the correct value
of the suit property in the plaint.

8. It is also pertinent to note that
the Defendant had made an averment in
para 30 of the written statement filed in
Suit No. 1955 of 2010 that the Plaintiff had
undervalued the subject matter of the suit.
It had been further submitted in the written
statement that the market value of the suit
property was much higher than Rs. 14 lacs.
The Defendant had paid Rs. 13.5 lacs for
the said premises in the year 2002 when the
said premises had been occupied by a
tenant bank.

Even according to the Defendant
value of the suit property had been
undervalued by the Plaintiff in the plaint. If
in pursuance of the averment made in the
written statement the Plaintiff wanted to
amend the plaint so as to incorporate
correct market value of the suit property,
the Defendant could not have objected to
the amendment application whereby the
Plaintiff wanted to incorporate correct
value of the suit property in the plaint by
way
of
an
amendment.
The
other
contention that the valuation had already
been settled cannot also be appreciated
since the High Court has held that the said
issue was yet to be decided by the trial
Court.

9. The main reason assigned by
the trial court for rejection of the
amendment application was that upon
enhancement of the valuation of the suit
property, the suit was to be transferred to
the High Court on its original side. In our
view, that is not a reason for which the
amendment application should have been
rejected. With regard to amendment of
plaint, the following observation has been
made by this Court in the case of North
Eastern
Railway
Administration,
Gorakhpur v. Bhagwan Das (D) by

L.Rs. ; (2008) 8 SCC 511:

"1 6 . Insofar as the principles
which govern the question of granting or
disallowing amendments Under Order 6
Rule 17 Code of Civil Procedure (as it
stood at the relevant time) are concerned,
these are also well settled. Order 6 Rule 17
Code
of
Civil
Procedure
postulates
amendment of pleadings at any stage of the
proceedings. In Pirgonda Hongonda Patil v.
Kalgonda Shidgonda Patil and Ors.; (1957)
1 SCR 595 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.
742 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In our opinion, on the basis of
the
aforestated
legal
position,
the
amendment application made by the
Plaintiff
should
have
been
granted,
especially in view of the fact that it was
admitted by the Plaintiff that the suit
property was initially undervalued in the
plaint and by virtue of the amendment
application, the Plaintiff wanted to correct
the error and wanted to place correct
market value of the suit property in the
plaint."

14. He further placed reliance upon
judgment of High Court of Uttaranchal
passed in B K Mittal (Supra) in which
Court has held that amendment application
cannot be rejected on the ground of laches.
Relevant paragraphs of the said judgment is
quoted below:-

7. The purpose of Order VI, Rule
17 of the Code of Civil Procedure is to
allow either party to amend their pleadings
in such manner and on such terms as may
be
just.
The
power
to
allow
the
amendment is not only discretionary but is
also wide and could be exercised at any
stage of the proceedings in the interest of
justice. The Supreme Court in a catena of
decisions has consistently held that the
Court should adopt a liberal approach and
allow a party to take all kinds of stand
which they may choose and that the Court
should
not
adopt
a
hyper-technical
approach. The Supreme Court held that a
liberal approach should be adopted and, as
far as possible, amendment should be
allowed, especially, when the other side
could be compensated with cost.

8. In the light of the aforesaid,
the Court finds that the Plaintiff had taken
a plea that the extract of the sale-deed was
read by him which he noted and,
subsequently, when he got hold of the
copy of the sale-deed, he filed the
amendment application seeking the relief
for declaration that the said sale-deed
should be declared void. Since the
essential facts had already been stated in
the plaint, the Court below should have
allowed the amendment and should not
have taken a view that the amendment
sought was barred by limitation. The
question whether the relief sought to be
incorporated in the plaint was barred by
limitation or not was a question of fact
which was required to be adjudicated and,
for that purposes, a necessary issue was
required to be framed. At the stage of
considering the amendment, such question
could not have been adjudicated since this
Court is of the opinion that it was a
question of fact which required evidence."

15. So far as facts of the case are
concerned, it is undisputed that after
rejection of Original Suit No. 2 of 1993,
petitioner-plaintiff has filed appeal and
during the pendency of appeal, he has filed
amendment application for amending the
plaint, which was also rejected. Against
both the orders, petitioner-plaintiff has
preferred Writ Petition No. 28148 of 1998
before the this Court, which was dismissed
vide order dated 17.09.2010 with liberty to
the plaintiff-petitioner to file amendment
application before the Court below. It is
also undisputed that while dismissing the
writ petition, this Court has also directed to
decide the appeal expeditiously and dispose
of Original Suit at the earliest. Instead of
filing amendment application forthwith,
petitioner-plaintiff has filed amendment
application on 08.04.2013 i.e. almost about
three years after closing of evidence and
when the case was listed for final argument.
Now the question is as to whether such
amendment application may be entertained
by the Court below or not.
9 All. Braj Bhushan Lal Awasthi Vs. Smt. Urmila & Ors.
743

16. There is no doubt on this point
that Apex Court has taken consistent view
that
amendment
application
may
be
allowed at the second appellate stage, Court
is required to take liberal view and further
amendment application would not be
rejected on the ground of delay, in case
delay is bonafide without any ill intention.

17. There is also no dispute on this
point that as per Act, 2002, amended
provisions would not be applicable to the
pending pleadings, but it is required to be
seen as to whether purpose of filing of
amendment application is bonafide or only
to delay the proceedings.

18. Now, issue before the Court is to
decide
under
which
circumstances,
amendment application may be allowed
even if it has been filed at a very belated
stage. In the present case, it is undisputed
that liberty was given to petitioner-plaintiff
to
file
fresh
amendment
application
coupled with this fact that there was also
direction of this Court to decide the appeal
as well as suit at the earliest. Not only this,
in Writ-C No. 28148 of 1998, this Court
vide order dated 17.09.2010 had directed to
decide the suit within one year, which is not
disclosed. Apart that, petitioner-plaintiff
himself has filed Civil Misc. Writ-C No.
12630 of 2013, which which was disposed
of vide order dated 08.03.2013 with
direction to the Court below to decide the
suit within six months, which is also not
disclosed in the present petition. In
compliance of order of High Court, Court
below has proceeded to decide the suit and
accordingly, evidences of both the parties
were closed and matter was listed for final
argument. At this stage, petitioner-plaintiff
has
preferred
amendment
application,
which was rejected vide impugned order
dated 01.12.2021.

19. This Court is of the firm view that
once the Court has granted liberty to file
second amendment application, there is no
occasion for the petitioner-plaintiff to wait
for three years when the suit was listed for
final hearing and also, in the mean time, he
himself has filed Civil Misc. Writ-C No.
12630 of 2013 before this Court for early
disposal of suit. In fact, it is nothing but an
attempt to linger on the proceeding by
filing
such
amendment
application,
therefore, Court below has taken right view
that it is nothing but an attempt to raise the
complexity in the matter and allowing the
amendment application would change the
nature of case based on those facts which
were very well in the knowledge of
petitioner-plaintiff since the date of filing
of suit. Though, the judgments so cited by
counsel
for
petitioner
may
favour
petitioner-plaintiff in case it was filed with
bonafide intention to meet the end of
justice, but in the present case, those
judgments would not come into the rescue
of petitioner for the reasons that intention
of petitioner-plaintiff is not fair in filing
amendment application. On one hand,
petitioner-plaintiff himself has filed writ
petitions for early disposal of suit and on
the other hand, he has taken chance to
linger
on
the
proceeding
by
filing
amendment application at a very belated
stage.

20. Therefore, while dealing such
situation where amendment application is
filed at a very belated stage, it is required to
be seen as to whether it has been filed with
clean hand, bonafide intention or only with
intention to delay the proceedings and if the
second one is found, no interference is
required as the present case is.

21. Under such facts of the case, this
Court is not impressed to interfere with the
744 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned orders dated 01.12.2021 and
11.07.2013.

22. Writ petition lacks merit and is,
accordingly dismissed.

23. No order as to costs.
----------
(2022) 9 ILRA 744
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 636 of 2021
(CIVIL)

Sadare Alam & Ors. ...Petitioners
Versus
Ram Awadh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prem Narayan Tiwari, Sri Anil Bhushan
(Sr. Advocate)

Counsel for the Respondents:
Sri Brajesh Kumar Dwivedi, Sri Vishnu
Gupta, Sri Shiv Om Vikram Singh Chauhan
(Sr. Advocate)

Civil Law- Transfer of Property Act, 1882 -
Sections 105 & 106- Whether permission
granted by the petitioners-plaintiffs to
respondents-defendants
(first
set)
on
Rs.100/- on non-judicial stamp is a lease
or not- Said permission lacks essential
ingredients of lease since there is no
recitation in the said permission as to
what is the premium or rent to be paid by
the respondents-defendants (first set) to
the petitioners-plaintiffs and respondentsdefendants (second set) in lieu of transfer
of suit property.The permission dated
28.11.2019 being termed as 'lease' by the
respondents-defendants (first set) is not a
lease- The question of giving notice
contemplated under Section 106 of the
Act, 1882 arises only when a valid lease
was executed between the parties- the
appellate court has erred in holding that
notice under Section 106 of the Act, 1882
was mandatory before the institution of
the suit by the petitioners-plaintiffs.

In order to be termed as a lease, rent or
premium is one of the essential ingredients and
mere permission without any rent or premium
cannot be termed as a lease. Hence, in absence
of a lease no notice u/s 106 of the TPA was
required.

Code of Civil Procedure, 1908- Section 94-
Order XXXIX Rule 1- Where the nature of
possession of the defendant is that of
trespasser or unlawful, the plaintiff is not
supposed
to
pray
for
the
relief
of
possession, and suit for injunction is
sufficient- The instant case is not one
where respondents-defendants (first set)
have been evicted forcefully by the
petitioner-plaintiff
and
are
claiming
possession of the property in dispute-The
possession of the respondent-defendant
(first set) on the strength of said lease
deed prima facie cannot be said to be
lawful for the reason that the property
being joint property, it has to be leased
out by all co-sharer and the description of
the property has to be given in the lease
deed specifying which portion of the
property
has
been
leased
out
to
respondents-defendants (first set).

Where the alleged lease does not mention any
rent or premium and being a joint property is
not leased out by all the co-sharers then a suit
for injunction would be maintainable as the
possession of the defendant would be unlawful.
(Para 25, 27, 29, 30, 31, 36, 38, 44)

Petition Allowed. (E-3)

Judgement/ Case law cited :-

1. Rahul Dixit & anr. Vs Chandra Kumar Agarwal
2019(1) ADJ 593(cited)

2. Sant Lal Jain Vs Avtar Singh AIR 1985 SC 857
(relied)