# Poornima and another v. State of U.P

- **Citation:** (2006) 2 ILRA 927
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-20
- **Case number:** Civil Misc. Writ Petition No.6135 of 2001
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/poornima-and-another-v-state-of-u-p-40621
- **Pages:** 7

## Headnote

Code of Civil Procedure- as amended
2002-Ord. 6 rule 17-Amendment of
Plaint-Suit for cancellation of sale deed
and
Injunction-petitioner
was
dispossessed
in
the
year
1983amendment application filed in the year
1996-highly
belated-causing
great
prejudice-unnecessary
harassment
to
the other side can not be allowed.

Held: Para 8

But in the present case admittedly, the
suit was filed in the year 1982 and the
petitioner was dispossessed from the
land in dispute in the year 1983 but the
amendment application was filed in the
year 1996, which is highly belated and
the Trial Court has wrongly allowed the
application which clearly prejudice the
case of the defendant and allowing the
application will unnecessarily harass the
respondents, therefore, the Revisional
Court has considered the submissions
that the application filed on behalf of the
petitioner is highly belated after a lapse
of 13 years and as such it cannot be
allowed.
Case law discussed:
2001 (42) ALR-582, 2002 (93) R.J.-104, 2003
(4) AWC-2889, AIR 1957 SC-363, AIR 1960
SC-622,
AIR 1977 SC-680, AIR 1979 SC-551, AIR 1982
SC-824, 1996 (2) SCC-25, AIR 2000 SC-614,
AIR 1992 SC-1604, AIR 1996 SC-2358, 2001
(8) SCC-115, J.T. 1998 (4) SC-484, AIR 2002
(2) SCC-445, AIR 2002 SC-665, AIR 1953 SC235, AIR 1992 SC-1604, AIR 1974 SC-1126,
2001 (8) SCC-97, AIR 2002 SC-2394, 2002 (7)
SCC-559, AIR 2003 SC-674

## Text

2 All] Poornima and another V. State of U.P.
927

Let the applicants Poornima, Afsana,
Tara, Abdul Hameed, Lalloo, Kali, Rajesh
and Lalita be enlarged on bail their
furnishing personal bonds with two
sureties each in the like amount to the
satisfaction
of
the
Chief
Judicial
Magistrate/court concerned in Case Crime
No.274 of 2005 under Section 3/4/5/6/8/9
The Immoral Traffic (Prevention) Act and
Section 323, 504, 506,109117, 366A, 373
I.P.C. PS. Manduadeeh, District Varanasi.

Application Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2005

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No.6135 of 2001

Imtiyaz Ahmad

...Petitioner
Versus
Additional District Judge, Fatehpur and
others

 ...Respondents

Counsel for the Petitioner:
Sri Farid Uddin
Sri Salamuddin Khan

Counsel for the Respondents:
Sri Akhilesh Misra
Sri Shrikant
S.C.

Code of Civil Procedure- as amended
2002-Ord. 6 rule 17-Amendment of
Plaint-Suit for cancellation of sale deed
and
Injunction-petitioner
was
dispossessed
in
the
year
1983amendment application filed in the year
1996-highly
belated-causing
great
prejudice-unnecessary
harassment
to
the other side can not be allowed.

Held: Para 8

But in the present case admittedly, the
suit was filed in the year 1982 and the
petitioner was dispossessed from the
land in dispute in the year 1983 but the
amendment application was filed in the
year 1996, which is highly belated and
the Trial Court has wrongly allowed the
application which clearly prejudice the
case of the defendant and allowing the
application will unnecessarily harass the
respondents, therefore, the Revisional
Court has considered the submissions
that the application filed on behalf of the
petitioner is highly belated after a lapse
of 13 years and as such it cannot be
allowed.
Case law discussed:
2001 (42) ALR-582, 2002 (93) R.J.-104, 2003
(4) AWC-2889, AIR 1957 SC-363, AIR 1960
SC-622,
AIR 1977 SC-680, AIR 1979 SC-551, AIR 1982
SC-824, 1996 (2) SCC-25, AIR 2000 SC-614,
AIR 1992 SC-1604, AIR 1996 SC-2358, 2001
(8) SCC-115, J.T. 1998 (4) SC-484, AIR 2002
(2) SCC-445, AIR 2002 SC-665, AIR 1953 SC235, AIR 1992 SC-1604, AIR 1974 SC-1126,
2001 (8) SCC-97, AIR 2002 SC-2394, 2002 (7)
SCC-559, AIR 2003 SC-674

(Delivered by Hon'ble Shishir Kumar, J.)

1. This writ petition has been filed
for quashing the order-dated 6.12.2000
passed
by
the
respondent
No.1
(Additional District Judge, Fatehpur) by
which the amendment application of the
petitioner has been rejected.

2. The petitioner filed a suit No.6 of
1982 in the Court of District Judge,
Fatehpur, for the relief of injunction and
for cancellation of the sale deed. It has
been alleged that during the pendency of
the suit, the petitioner was dispossessed
from the property in dispute on 20.3.1983.
The
petitioner
filed
an
amendment
application for amendment, claiming the
relief of possession. The Learned Civil
Judge (Senior Division), Fatehpur, heard
928 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the amendment application and allowed
the same by judgment and order dated
8.4.1997. The contesting respondents
(defendants) filed a Revision No.46 of
1997 in the Court of District Judge,
Fatehpur, which was allowed by the
judgment and order dated 6.12.2000 and
set aside the judgment and order dated
8.4.1997 and rejected the amendment
application.

Aggrieved
by
the
order-dated
6.12.2000 the petitioner has approached
this Court.

3. The petitioner submits that as at
the time of filing the suit, the petitioner
was in possession of the property, as such,
no relief for possession was sought in the
relief claimed in the suit. Only relief of
injunction and cancellation of sale deed
was sought while filing the plaint before
the Court. As the petitioner during the
pendency
of
the
suit
has
been
dispossessed from the property, therefore,
it was necessary to amend the plaint
seeking relief of possession. It has also
been submitted on behalf of the petitioner
that the amendment application can be
allowed at any stage and at the time of
filing the suit the petitioner was in
possession,
therefore,
no
relief
or
possession was sought and immediately
after dispossessing from the land in
dispute the amendment application has
been filed.

4. The petitioner has placed reliance
upon a judgment of the Apex Court
reported in 2001(42) ALR Page 582
Raghu Thilak D.John Vs. S.Rayappan
and others and has placed reliance upon
Para 5 of the said judgment that Court
should not adopted hyper technical
approach
while
considering
the
amendment
application.
Another
judgment relied upon by the counsel for
the petitioner is 2002 (93) Revenue
Decision, Page 104, Prem Bakshi and
others Vs. Dharam Dev and others. The
reliance has been placed upon another
judgment of this Court reported in
2003(4) AWC 2889 Mishri Singh Vs.
IIIrd Additional District Judge, Basti
and others.

5. On the basis of the aforesaid
decisions the counsel for the petitioner
submitted that the power to allow the
amendment application is very wide and
can be exercised at any stage of the suit in
the interest of justice and the Court should
not take very hyper technical view while
considering the amendment application.

6. On the other hand the learned
counsel for the respondents Sri Srikant,
Advocate,
has
submitted
that
even
assuming without admitting this fact that
amendment application can be allowed at
any point of time but there must be some
reasonable explanation to this effect that
the amendments sought and the relief
sought in the amendment application was
not in the knowledge of the plaintiff at the
time when the suit was filed. It has further
been submitted that according to the case
of the petitioner, the petitioner was
dispossessed from the land in dispute on
30.3.1983 but the petitioner has not taken
any
steps
to
file
an
amendment
application for seeking the relief of
possession up to 14.10.1996. It was only
in the year 1996, the petitioner has filed
an amendment application and the Court
below has illegally without considering
this aspect of the matter that the
amendment sought by the petitioner was
highly
belated
only
to
delay
the
proceedings. The Revisional Court had
2 All] Imtiyaz Ahmad V. A.D.J., Fatehpur and others
929
recorded a categorical finding of fact
regarding the question of limitation and
has held that it is not disputed that the
amendment can be allowed at any stage if
it is established by the plaintiff that relief
sought in the amendment was not in the
knowledge
when
the
plaintiff
has
approached the Court by way of filing the
suit as such, no relief was sought at the
time when the suit was filed. The
Revisional Court has clearly recorded a
finding that the present amendment
application filed on behalf of the plaintiffpetitioner is a afterthought and only to
change the nature of the suit after a lapse
of about 13 years. As such, the writ
petition filed on behalf of the petitioner is
liable to be dismissed.

7. I have heard learned counsel for
the petitioner and Sri Srikant, learned
counsel for the respondents and have
perused the record.

"Order
6
Rule
17
provides
amendment
of
the
pleadings.
By
Amendment of 2002, a proviso has been
added that amendments should generally
be allowed at this stage of pre-trial of the
Suit. But subsequent thereto, the court
must be satisfied as to why the pleadings
could not be brought in, unless it was
based on subsequent developments.

The issue involved herein is being
considered by the courts every day.
Amendment
in
the
pleadings
may
generally be allowed and the amendment
may also be allowed at the belated stage.
However, it should not cause injustice or
prejudice
to
the
other
side.
The
amendment sought should be necessary
for the purpose of determining the real
question in controversy between the
parties. Application for amendment may
be rejected if the other party cannot be
placed in the same position as if the
pleadings had been originally correct, but
the amendment would cause him injury
which could not be compensated in terms
of cost or change the nature of the suit
itself as it cannot be permitted to create
any entirely new case by amendment. A
right accrued in favour of a party by lapse
of time cannot be permitted to be taken
away by amendment. Amendment can also
be
allowed
at
appellate
stage.
Introduction of an entirely new case,
displacing even admission by a party is
not
permissible.
(Vide
Pirgonda
Hongonda Patil Vs. Kalgonda Shidgonda
Patil & ors., AIR 1957 SC 363; Nanduri
Yogananda Laxminarsimhachari & Ors.
Vs. Sri Agasthe Swarswamivaru, AIR
1960 SC 622; M/s Modi Spinning &
Weaving Mills Co.Ltd. Vs. M/s Ladha
Ram & Co., AIR 1977 SC 680; Ishwardas
Vs. State of M.P., AIR 1979 SC 551; and
Mulk Raj batra Vs. District Judge,
Dehradun, AIR 1982 SC 24).

Similar view has been reiterated in
G.Nagamma & Anr. Vs. Siromanamma &
Anr.,
and
(1996)
2
SCC
25;
B.K.Narayana Pillai Vs. Parameshwaran
Pillai & Anr., AIR 2000 SC 614.
However, a party cannot be permitted to
move an application under Order 6 Rule
17 of the Code after the judgment has
been reserved. (Vide Arjun Singh Vs.
Mohindra Kumar & Ors., AIR 1964 SC
993).

A Constitution Bench of the Hon'ble
Supreme Court in Municipal Corporation
of Greater Bombay Vs. Lala Pancham &
Ors, AIR 1965 SC 1008, observed that
even the court itself can suggest the
amendment to the parties for the reason
that main purpose of the court is to do
930 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
justice, and therefore, it may invite the
attention of the parties to the defects in
the pleadings, so that same can be
remedied and the real issue between the
parties may be tried. However, it should
not give rise to entirely a new case.

In Jagdish Singh Vs. Natthu Singh,
AIR 1992 SC 1604, the Hon'ble Supreme
Court held that the Court may allow to
certain extent even the conversion of the
nature of the Suit, provided it does not
give rise to entirely a new cause of action.
An amendment sought in a plaint filed for
specific performance may be allowed to
be done without abandoning the said
relief but amendment seeking for damages
for breach of contract may be permitted.

In Union of India & Ors. Vs. Surjit
Singh Atwal, AIR 1979 SC 1701, the Apex
Court held that in case of gross delay,
application for amendment must be
rejected.

It is settled legal proposition that if a
right accrued in favour of a party, as the
order impugned has not been challenged
in time, the said right cannot be taken
away by seeking amendment in pleadings.
(Vide Radhika Devi Vs. Bajrangi Singh,
AIR 1996 SC 2358; and Dondapati
Narayana
Reddy
Vs.
Duggireddy
Venkatanarayana Reddy, (2001) 8 SCC
115).

In
G.Nagamma
&
Ors.
Vs.
Siromanamma & Anr., JT 1998 (4) SC
484, the Hon'ble Apex Court held that in
an application under Order 6 Rule 17,
even an alternative relief can be sought;
however, it should not change the cause
of action or materially affect the relief
claimed earlier.

In Vineet Kumar Vs. Mangal Sain
Wadhera, AIR 1985 SC 817, the Hon'ble
Supreme
Court
held
that
normally
amendment is not allowed if it changes
the cause of action, but where the
amendment
does
not
constitute
the
addition of a new cause of action, or
raises a new case, but amounts to not
more than adding to the facts already on
record, the amendment should be allowed
even after the statutory period of
limitation.

In Fritiz T.M.Clement & Anr.Vs.
Sudhakaran Nadar & Anr., AIR 2002 SC
1148, the Hon'ble Supreme Court held
that in case the original plaint is cryptic
and amendment sought to incorporate
about some undisputed facts elaborating
plaintiff's claim is based on the said
admitted facts, amendment should be
allowed as it would place the defendant in
a better position to defend and would
certainly not prejudice his cause. More
so, if the claim does not challenge the
nature of the relief and rate of fee etc. is
challenged without challenging the total
amount claimed, such amendment may be
allowed even at a belated stage.

In Gurdial Singh Vs. Raj Kumar
Aneja, (2202) 2 SCC 445, the Hon'ble
Supreme Court deprecated the practice
adopted by the Courts entertaining the
application under O. 6 R.17 of the Code
containing very vague and general
statements
of
facts
without
having
necessary
details
in
amendment
application enabling the Court to discern
whether
the
amendment
involves
withdrawal of an admission made either
or attempts to introduce a time-barred
plea or claim or is intended to prevent the
opposite party from getting the benefit of
a right accrued by lapse of time, as
2 All] Imtiyaz Ahmad V. A.D.J., Fatehpur and others
931
amendment cannot be permitted to
achieve the said purposes.

Similarly, in Om Prakash Gupta Vs.
Ranbir B. Goyal, AIR 2002 SC 665, the
Hon'ble Supreme Court reiterated the
same view extending the scope of O. 6
R.17
of
the
Code,
observing
that
amendment
should
not
disturb
the
relevant rights of the parties those existed
on the date of institution of a Suit, but
subsequent events may be permitted to be
taken
on
record
in
exceptional
circumstances if necessary to decide the
controversy in issue. The Court held as
under:-

"Such subsequent event may be one
purely of law or founded on facts. In the
former case, the court may take judicial
notice of the event and before acting
thereon put the parties on notice of how
the change in law is going to affect the
rights and obligations of the parties and
modify or mould the course of litigation
or the relief so as to bring it in conformity
with the law. In the latter case, the party
relying on the subsequent event, which
consists of facts not beyond pale of
controversy either as to their existence or
in their impact, is expected to have resort
to amendment of pleadings under Order 6
Rule 17 C.P.C. Such subsequent event, the
Court may permit being introduced in the
pleadings by way of amendment as it
would be necessary to do so for the
purpose of determining real questions in
controversy between the parties. In
Trojan & Co. Vs. RM. N.N.Nagappa
Chettiar, AIR 1953 SC 235, this Court
hasd held that the decision of a case
cannot be based on grounds outside the
pleadings of the parties and it is the case
pleaded that has to be founded; without
the amendment of the pleadings the Court
would not be entitled to modify or alter
the relief. In Sri Mahant Govind Rao Vs.
Sita Ram Kesho, (1988) 25 IA 195 (PC),
Their Lordships observed that, as a rule,
relief not founded on the pleadings should
not be granted."

In Muni Lal Vs. The Oriental Fire &
General Insurance Co. Ltd., AIR 1996 SC
642, the Hon'ble Apex Court held that the
relief of amendment should be granted to
"render
substantial
justice
without
causing injustice to the other party or
violating fair-play and the Court should
be entitled to grant proper relief even at
the stage of appellate forum." Similar
view has been reiterated in Jagdish Singh
Vs. Natthu Singh, AIR 1992 SC 1604.

In Smt. Gaga Bai Vs Vijay Kumar,
AIR 1974 SC 1126, the Hon'ble Supreme
Court observed as under:-

"The power to allow an amendment
is undoubtedly wide and may, at any
stage, be properly exercised in the
interest of justice, the law of limitation
notwithstanding, but the exercise of such
far-reaching
discretionary
power
is
governed by judicial consideration and
wider the discretion, greater ought to be
the care and circumspection on the part
of the Court."

In M/s Ganesh Trading Co. Vs.
Maoji Ram (Supra), the Hon'ble Supreme
Court observed that where amendment is
found to be necessary for promoting the
ends of justice and not for defeating it, the
application should be allowed. Similar
view had been reiterated in B.K.N. Pillai
Vs. P.Pillai & Anr., AIR 2000 SC 614.

In Estrella Rubber Vs. Dass Estate
(P) Ltd., (2001) 8 SCC 97, the Supreme
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Court held that mere delay in making the
amendment application is not enough to
reject the application unless a new case is
made out, or serious prejudice is shown to
have been caused to the other side so as
to take away any accrued right.

Similarly, in Siddalingamma & Anr.
Vs. Mamtha Shenoy, (2001) 8 SCC 561,
the Hon'ble Supreme Court held that the
Doctrine of Relation Back applies in case
of amendment for the reason that the
amendment
generally
governs
the
pleadings as amended pleadings would be
deemed to have been filed originally as
such and the evidence has to be read and
appreciated in the light of the averments
made in the amendment petition. similar
view has been reiterated in Raghu Thilak
D.John Vs. S.Rayappan & Ors., AIR 2001
SC 699.

In Jayanti Roy Vs. Dass Estate (P)
Ltd., AIR 2002 SC 2394, the Apex Court
held that if there is no material
inconsistency
between
the
original
averments and those proposed by the
amendment, application for amendment
should
be
allowed.
However,
the
application should be moved at a proper
stage. Application filed at unduly delayed
stage should normally be rejected.

In Sampat Kumar Vs. Ayyakannu &
Anr., (2002) 7 SCC 559, the Hon'ble
Supreme Court held that any amendment
seeking to introduce a cause of action,
which arose during pendency of the Suit,
may be permitted in order to avoid
multiplicity of Suit. But, it should not
change the basic structure of the Suit.
More so, court should be liberal to allow
amendment at the time of pre-trial of a
Suit but must be strict and examine the
issue of delay where the application for
amendment is filed at a much belated
stage of commencement of the trial.

In Nagappa Vs. Gurudayal Singh &
Ors., AIR 2003 SC 674, the Hon'ble
Supreme Court held that amendment can
be allowed even at an appellate stage in a
case where law of limitation is not
involved and the facts and circumstances
of the particular case so demands, in
order to do justice with the parties. The
case involved therein had been under the
provisions of Sections 166, 168 and 169
of the Motor Vehicles Act, 1988 and as
the Act does not provide for any limitation
for
filing
the
claim
petition,
the
amendment
at
appellate
stage
was
allowed.

In Hanuwant Singh Rawat Vs. Mos
Rajputana Automobiles, Ajmer, (1993) 1
WLC
625
Rajasthan
High
Court
summarized the legal position as under:-

(i) That the amendment of pleadings
should ordinarily be allowed by the
Court, once it is satisfied that the
amendment is necessary for the just and
proper
decision
of
the
controversy
between the parties;
(ii) The amendment of the pleadings
should not ordinarily be declined only on
the ground of delay on the part of the
appellant in seeking leave of the Court to
amend the pleadings, if the opposite party
can suitably be compensated by means of
costs etc. Suitably be compensated by
means of costs etc. Even inconsistent
pleas can be allowed to be raised by
amendment in the pleadings;
(iii) However, amendment of pleadings
cannot be allowed so as to completely
alter the nature of the Suit;
(iv) Amendment of the pleadings must not
be allowed when amendment is not
2 All] Ram Pyare Singh V. Ram Govind and others
933
necessary for the purpose of determining
the real questions in the controversy
between the parties;
(v) The amendment should be refused
where the plaintiff's Suit would be wholly
displaced by the proposed amendment;
(vi) Where the effect of the amendment
would be to take away from the defendant
a legal right which has accrued to him by
lapse of time or by operation of some law;
(vii) The amendment in the pleadings
should not be allowed where the Court
finds that amendment sought for has not
been made in good faith or suffers from
lack of bona fides; and
(viii)
Ordinarily, the amendment must
not be allowed where a party wants to
withdraw from the admission made by it
in the original pleadings."

In M/s Modi Spinning & Weaving
Mills Co. Ltd. (Supra), the Hon'ble
Supreme Court specifically held that
amendment in the pleadings is not
permitted if it seeks to "displace the
plaintiff completely from the admissions
made by the defendant in the written
statement."

8. In view of the above it is well
settled that amendment can be allowed at
any stage but there must be some
reasonable explanation by the person
concerned who approached this Court by
way to amend the pleadings with a
specific case supported by the document
that the amendment sought or the relief
sought by way of amendment was not in
the knowledge when the suit was filed. It
is also well settled now that if the
amendment does not change the nature of
the suit and does not effect the rights of
the parties, it can be allowed at any point
of time. But in the present case
admittedly, the suit was filed in the year
1982 and the petitioner was dispossessed
from the land in dispute in the year 1983
but the amendment application was filed
in the year 1996, which is highly belated
and the Trial Court has wrongly allowed
the application which clearly prejudice
the case of the defendant and allowing the
application will unnecessarily harass the
respondents, therefore, the Revisional
Court has considered the submissions that
the application filed on behalf of the
petitioner is highly belated after a lapse of
13 years and as such it cannot be allowed.

9. In view of the aforesaid fact, I
find no merit in the writ petition. The writ
petition lacks of merits and is hereby
dismissed.

10. There shall be no order as to
costs.

Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2006

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.8600 of 2006

Ram Pyare Singh ...Defendant/Petitioner
Versus
Ram Govind and others ...Plaintiffs/
 Respondents

Counsel for the Petitioner:
Sri Manish Dev Singh

Counsel for the Respondents:

Code of Civil Procedure-Order I rule 10Impleadment-by
Subsequent
purchasure-in a suit for arrears of renton the grand during pendancy of suit the
applicants
have
purchased
the
accommodation in question-allowed by
Trial Court-challenge on the grand-that