# Shri Satya Dev-Shakuntala Devi Educational Trust v. A.D.J./Special Judge (SC&ST) Act, Etawah & Ors

- **Citation:** (2014) 1 ILRA 389
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-09
- **Case number:** BAGHEL J. Civil Misc. Writ Petition No. 131 of 2008
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-satya-dev-shakuntala-devi-educational-trust-v-a-d-j-special-judge-sc-st-42848
- **Pages:** 5

## Headnote

C.P.C.-Order
VI
Rule-17-
Amendment
Application-rejected on ground of delay-suit
for permanent injunction-the defendant
taken plea of sale deed dated 13.09.76executed in favor of his wife-sale deed
produced in the year 2001-amendment
application filed 05.08.04 e.g. within three
years-can not be beyond time-both Court
below committed great illegality by rejecting
amendment
application-order
quasheddirection for fresh consideration given.

Held: Para-24
Bearing the aforesaid principle in the mind,
the reasons mentioned by the trial court and
the
revisional
court
rejecting
the
amendment application on the ground of the
delay and the limitation is unsustainable.
Accordingly,
both
the
orders
dated
06.11.2006 and 27.09.2007 are set aside.
The matter is remitted to the Trial Court to
consider the amendment application afresh
in accordance with law.

Case Law Discussed:
2002(10) SBR 298; (2006) 6 SCC 498; (2009) 10
SCC 626; (2009) 10 SCC 84; (2012) 2 SCC 300.

## Text

1 All]Shri Satya Dev-Shankuntala Devi Educational Trust Vs. A.D.J./Special Judge(SC/ST)Act,Etawah & Ors.

389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2014

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL J.

Civil Misc. Writ Petition No. 131 of 2008

Shri Satya Dev-Shakuntala Devi Educational
Trust... ....Petitioner
Versus
A.D.J./Special Judge (SC&ST) Act, Etawah
& Ors. .....Respondents

Counsel for the Petitioner:
Sri Anil Kumar Sharma

Counsel for the Respondents:-

C.P.C.-Order
VI
Rule-17-
Amendment
Application-rejected on ground of delay-suit
for permanent injunction-the defendant
taken plea of sale deed dated 13.09.76executed in favor of his wife-sale deed
produced in the year 2001-amendment
application filed 05.08.04 e.g. within three
years-can not be beyond time-both Court
below committed great illegality by rejecting
amendment
application-order
quasheddirection for fresh consideration given.

Held: Para-24
Bearing the aforesaid principle in the mind,
the reasons mentioned by the trial court and
the
revisional
court
rejecting
the
amendment application on the ground of the
delay and the limitation is unsustainable.
Accordingly,
both
the
orders
dated
06.11.2006 and 27.09.2007 are set aside.
The matter is remitted to the Trial Court to
consider the amendment application afresh
in accordance with law.

Case Law Discussed:
2002(10) SBR 298; (2006) 6 SCC 498; (2009) 10
SCC 626; (2009) 10 SCC 84; (2012) 2 SCC 300.

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J)

1. This writ petition is directed
against the order dated 27.09.2004 passed
by the Additional Civil Judge (Junior
Division), whereby he has rejected the
amendment application moved by the
petitioner/appellant
under
Order
VIRule17 CPC and the order dated 27
September 2007 passed by the Revisional
Court, dismissing the revision.

2. Briefly stated the facts are; the
petitioner instituted a suit for permanent
injunction in the Court of Civil Judge (Junior
Division)-II, Etawah. The petitioner/plaintiff's
case in the Suit is that the plaintiff Sri Satya
Dev-Shakuntala Devi Educational Trust is a
registered Trust and one Sri Rajendra Kumar
Sharma, who has joined the suit in the
capacity of the Managing Trustee, manages
the
affairs
of
the
Trust.
The
defendant/respondent, who is the tenant in the
Trust property, had stopped the payment of
the rent from April 1995 and when he was
asked to vacate the premises he started illegal
construction on the land of the Trust. The
respondent/defendant
filed
his
written
statement and contested the suit on the ground
that a sale deed was executed in favour of
wife of defendant/respondent no. 3 regarding
the property, in which he is in possession.

3. The plaintiff/petitioner filed an
application under Order VI Rule 17 CPC for
amendment of the pleadings. It was pleaded in
the amendment application that the defendant
has filed an original copy of the sale deed said
to be executed on 13 September 1976 by
Satya Dev, on 23.11.2001 in the Trial Court. It
is stated that the said sale deed was not a
registered document and the plaintiff had also
verified from the office of the Sub-Registrar.
The enquiry revealed that the alleged sale
deed dated 13 September 1976 was not a
registered document therefore, the sale deed
has no evidentiary value in the eyes of law.
390 INDIAN LAW REPORTS ALLAHABAD SERIES

The respondent no. 3 filed his objections to
the amendment application. By the impugned
order the Trial Court has rejected the
amendment application of the petitioner and
his revision also came to be dismissed.

4. I have heard learned Counsel for
the parties.

5. Learned Counsel for the petitioner
submits that no cogent reason has been
given by the Trial Court for rejecting the
amendment application. There was no
delay in filing the amendment application
as the issue was yet to be framed when
the amendment application was moved.

6. Learned Counsel for the petitioner
further submits that the view taken by both the
courts below in rejecting the amendment was
on the ground of delay. The view taken by
them is erroneous and factually incorrect. The
Court below has failed to consider that the
respondent no. 3 has filed the document in
support of his claim on 13.11.2001 alongwith
the sale deed. The petitioner came to know
about the said sale deed when it was filed in
the court and he moved the amendment
application on 05 August 2004 i.e. within
three years. Therefore, the period of limitation
has not expired as it is within three years of
the date of knowledge. He further submits that
it is a well settled law that the amendment of
pleadings can be made at any stage of
proceeding if it is necessary for the purposes
of
determining
the
real
question
in
controversy between the parties.

7. Learned Counsel for the petitioner
has placed reliance on the judgement of
the Supreme Court in the case of Sampat
Kumar v. Ayya Kannu and another,
2002(10) SBR 298, wherein it has been
held that a suit for prohibitory injunction
can be converted in the suit in declaration
of title and recovery of possession at
belated stage even then the amendment
was allowed on payment of some cost.

8. I have heard learned Counsel for
the parties and perused the record.

9. The petitioner has instituted the
suit for permanent injunction restraining
them from interfering in her possession in
respect of the permanent injunction to
restrain respondent no. 3 from raising the
construction with regard to the property in
suit on the ground that he was a tenant of
the Trust property.

10. In his written statement the
respondent no. 3 contested the case on the
ground that a sale deed was executed in
favour of his wife (the defendant / respondent
no. 3 herein) regarding the property and he is
in possession by virtue of the said sale deed.
The respondent no. 3 filed the original copy of
sale
deed
on
13.11.2001.
The
plaintiff/petitioner
herein
moved
an
application on 05 August 2004 within three
years from the date of the knowledge seeking
a declaration that the said unregistered sale
deed is a void document. A copy of the
amendment application dated 05 August 2004
is on the record as annexure-3 to the writ
petition. The said application was rejected on
25.09.2004 on the ground that the sale deed
was in favour of the wife of respondent no. 3
Ganga Devi but she is not party in the suit.
Thereafter the petitioner/ plaintiff moved a
fresh application on 30.04.2005 alongwith an
impleadment application to implead Ganga
Devi as one of the defendants in the suit.

11. The Trial Court has rejected her
application primarily on the ground that it
was filed after much delay and on the said
cause of action a separate suit and the
amendment application is against the Order
1 All]Shri Satya Dev-Shankuntala Devi Educational Trust Vs. A.D.J./Special Judge(SC/ST)Act,Etawah & Ors.

391
I Rule 3 of the Cope of Civil Procedure,
1908.

12. The Revisional Court took the
view that the sale deed was filed by the
defendant on 13.11.2001 but the amendment
application has been filed on 30 April 2005,
which was beyond the limitation of the suit.

13. As regards the finding of the Trial
Court that the amendment was filed belatedly
and was also against the provisions of Order
I Rule 3 of CPC is not correct. For the sake
of convenience the Order I Rule 3 of CPC is
extracted herein below;

"3.
Who
may
be
joined
as
defendants.---All persons may be joined
in one suit as defendants where---

(a) any right to relief in respect of, or
arising out of, the same act or transaction
or series of acts or transactions is alleged
to exist against such persons, whether
jointly, severally or in the alternative; and

(b) if separate suits were brought
against such persons, any common
question of law or fact would arise."

14. At the time of filing of the suit
the case of the plaintiff was that the
disputed property is a trust property and
the defendant was tenant over the said
property. During the pendency of the suit
the defendant filed an original sale deed,
dated 13.09.1976, on 13.11.2001 in
respect of the suit property and it was
stated that the said sale deed was in
favour of the defendant's wife.

15. The stand of the plaintiff was
that the said sale deed is unregistered and
the plaintiff came to know about the said
document when it was filed in the court,
therefore, they moved an application for
amendment as well as impleadment of
Ganga Devi in whose favour the alleged
sale deed had been executed.

16. In view of the said facts it cannot be
said that Ganga Devi was a necessary party at
the time of filing of the suit. Thus the Trial
Court has misdirected itself by relying on
Order I Rule 3 CPC. The Revisional Court
has also erroneously held that the amendment
was filed belatedly and the amendment was
beyond three years of the limitation. The said
finding is factually incorrect.

17. The sale deed was brought on
the record on 13.11.2001 and the
amendment was filed on 05 August 2004.
The plaintiff has explained that they tried
to verify and enquire from the office of
the Registrar then he came to know that
the said sale deed has not been registered.

18. It is a trite law that an amendment
can be allowed at any stage of the
proceedings, however in 2002 by Act No. 2
of 2002 a proviso has been inserted, which
provides that no application for amendment
shall be allowed after the trial has
commenced unless the court comes to the
conclusion that in spite of the due diligence
the party could not have raised the matter
before the commencement of trial.

19. In the present case it is stated that no
issue has been framed in the suit nor any
evidence has been adduced by the parties. The
said fact has not been disputed by the
respondent.

20. Moreover, the said proviso has
been considered by the Supreme Court in
the case of Baldev Singh and others v.
Manohar Singh and another, (2006) 6
SCC 498 in the following words;
392 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. Before we part with this order, we
may also notice that proviso to Order 6 Rule 17
CPC provides that amendment of pleadings
shall not be allowed when the trial of the suit
has already commenced. For this reason, we
have examined the records and find that, in
fact, the trial has not yet commenced. It appears
from the records that the parties have yet to file
their documentary evidence in the suit. From
the record, it also appears that the suit was not
on the verge of conclusion as found by the
High Court and the trial court. That apart,
commencement of trial as used in proviso to
Order 6 Rule 17 in the Code of Civil Procedure
must be understood in the limited sense as
meaning the final hearing of the suit,
examination of witnesses, filing of documents
and addressing of arguments. As noted
hereinbefore, parties are yet to file their
documents, we do not find any reason to reject
the application for amendment of the written
statement in view of proviso to Order 6 Rule 17
CPC which confers wide power and unfettered
discretion to the court to allow an amendment
of the written statement at any stage of the
proceedings."

21. In the Surender Kumar Sharma
v. Makhan Singh (2009), 10 SCC 626 the
Supreme Court held thus;

"5. As noted hereinearlier, the prayer
for amendment was refused by the High
Court on two grounds. So far as the first
ground is concerned i.e. the prayer for
amendment was a belated one, we are of the
view that even if it was belated, then also, the
question that needs to be decided is to see
whether by allowing the amendment, the real
controversy between the parties may be
resolved. It is well settled that under Order 6
Rule 17 of the Code of Civil Procedure, wide
powers and unfettered discretion have been
conferred on the court to allow amendment
of the pleadings to a party in such a manner
and on such terms as it appears to the court
just and proper. Even if, such an application
for amendment of the plaint was filed
belatedly, such belated amendment cannot be
refused if it is found that for deciding the real
controversy between the parties, it can be
allowed on payment of costs. Therefore, in
our view, mere delay and laches in making
the application for amendment cannot be a
ground to refuse the amendment."

22. The Supreme Court in the case
of Ravajeetu Builders and Developers v.
Narayanswamy and sons and others,
(2009) 10 SCC 84 has culled out the
following factors to be taken into
consideration while dealing with the
applications for amendments;

"39. The rule, however, is not a
universal
one
and
under
certain
circumstances, such an amendment may be
allowed by the court notwithstanding the
law of limitation. The fact that the claim is
barred by the law of limitation is but one of
the factors to be taken into account by the
court in exercising the discretion as to
whether the amendment should be allowed
or refused, but it does not affect the power
of the court if the amendment is required in
the interests of justice (see Ganga Bai v.
Vijay Kumar1 and Arundhati Mishra v.
Ram Charitra Pandey2)

63. On critically analyzing 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;
1 All] Rajesh Singh & Ors. Vs. The State of U.P. & Anr.

393

(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
non exhaustive.""

23. As regards the belated amendment is
concerned the said issue is also no more res
integra. The Supreme Court in a long line of
decisions has already held that a belated
amendment can also be considered subject to the
certain conditions. In J. Samuel and others v.
Gattu Mahesh and others, (2012) 2 SCC 300;

"23. Though the counsel for the
appellants have cited many decisions, on
perusal, we are of the view that some of
those cases have been decided prior to the
insertion of Order 6 Rule 17 with proviso or
on the peculiar facts of that case. This Court
in various decisions upheld the power that in
deserving cases, the Court can allow delayed
amendment by compensating the other side
by awarding costs. The entire object of the
amendment to Order 6 Rule 17 as introduced
in 2002 is to stall filing of application for
amending a pleading subsequent to the
commencement of trial, to avoid surprises
and that the parties had sufficient knowledge
of other's case. It also helps checking the
delays in filing the applications. [Vide
Aniglase
Yohannan
v.
Ramlatha3,
Ajendraprasadji N. Pandey v. Swami
Keshavprakeshdasji N4, Chander Kanta
Bansal v. Rajinder Singh Anand5, Rajkumar
Gurawara v. S.K. Sarwagi and Co. (P) Ltd.6,
Vidyabai v. Padmalatha7, and Man Kaur v.
Hartar Singh Sangha8.]"

24. Bearing the aforesaid principle
in the mind, the reasons mentioned by the
trial court and the revisional court
rejecting the amendment application on
the ground of the delay and the limitation
is unsustainable. Accordingly, both the
orders dated 06.11.2006 and 27.09.2007
are set aside. The matter is remitted to the
Trial Court to consider the amendment
application afresh in accordance with law.

25. Thus, the writ petition is allowed.

26. No order as to costs.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.04.2014

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Criminal Revision No. 154 of 2014

Rajesh Singh & Ors.... Revisionists
Versus
The State of U.P. & Anr. .....Opposite Parties

Counsel for the Revisionists:
Shiv Pal Singh

Counsel for the Opposite Parties:
G.A.

Cr. P.C. Section 319-Summoning without
recording
satisfaction-applicant
being
natural father having no concern with
family
of
adopted
son-allegation
surrounded with demand of dowry only by
adopted son-non consideration thereof-