# Smt. Neeta Agarwal v. Smt. Shanti Rani Agarwal & Ors

- **Citation:** (2023) 4 ILRA 675
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-24
- **Case number:** Matters Under Article 227 No. 220 of 2016
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-neeta-agarwal-v-smt-shanti-rani-agarwal-ors-50003
- **Pages:** 17

## Headnote

A. Civil Law - Amendment of pleadings -
Code of Civil Procedure, 1908 - Order XV
Rule 5 - Order 6 Rule 17 of the C.P.C. -
Amendment
of
pleadings
cannot
be
allowed so as to alter materially or
substitute the cause of action or the
nature of claim applies to amendments to
the plaint. It has no counterpart in the
principles relating to amendment of the
written statement. Therefore, addition of
a new ground of defence or substituting or
altering a defence or taking inconsistent
pleas in the written statement would not
be objectionable while adding, altering or
substituting a new cause of action in the
plaint may be objectionable. (Para 57)

B. No relief could be granted as claim for
under the petition in case the same does
not flow from the facts as contained in the
petition. No amount of evidence can be
looked into, upon a plea which was never
put forward in the pleadings. (Para 58)

The present petition is liable to be dismissed on
both the grounds namely the amendment filed
by the petitioner will change the nature of the
case and secondly there is no pleadings
whatsoever made by the petitioner in the entire
petition while challenging the aforesaid orders.
Further nothing has been stated in the
amendment application nor in the present
petition regarding the latches in filing the
amendment application since the suit was filed
in this case in the year, 2000 and amendment
was sought by him in the year 2009. (Para 62)

The Civil Suit which was filed by the plaintiffpetitioner is pending consideration before the
Trial Court since last 23 years. Written
statements have already been filed by the
parties. In this view of the matter, Court is of
the opinion that the Trial Court be directed to
decide the aforesaid suit most expeditiously and
positively within a period of six months ...strictly
676 INDIAN LAW REPORTS ALLAHABAD SERIES
in accordance with law and without bring
influenced with any observations made by this
Court in this judgement. (Para 64, 65)

Writ petition disposed of. (E-4)

Precedent followed:

## Text

_Characters 0–39,988 of 55,110. This is a partial read: ask again with offset=39988 for what follows._

4 All. Smt. Neeta Agarwal Vs. Smt. Shanti Rani Agarwal & Ors.
675
findings which have been recorded by the
Prescribed
Authority
have
not
been
considered by the Appellate Court in its
correct prespective nor any reason has been
incorporated why the conclusion of the
Prescribed Authority were erroneous nor
the findings of the Prescribed Authority
have been reversed.

37. In view of the aforesaid
discussions, this Court has no hesitation to
hold that the impugned judgment passed by
the Appellate Court dated 27.11.1979
cannot sustain judicial scrutiny and is liable
to be set aside.

38. For the reasons aforesaid, the writ
petition is allowed. A writ of certiorari is
issued and the impugned judgment dated
27.11.1979 passed in Ceiling Appeal
No.148 of 1979 shall stand quashed. The
matter shall stand remitted to the Appellate
Authority who shall after affording full
opportunity of hearing to the parties shall
pass a fresh order in appeal noticing the
observations
made
in
the
judgment
preferably within a period of six months,
from the date a copy of this order is placed
before the Appellate Court. In the facts and
circumstances, there shall be no order as to
costs.
----------
(2023) 4 ILRA 675
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2023

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matters Under Article 227 No. 220 of 2016

Smt. Neeta Agarwal ...Petitioner
Versus
Smt. Shanti Rani Agarwal & Ors.
 ...Respondents
Counsel for the Petitioner:
Sri Sheo Ram Singh, Ms. Priya Dimri, Sri
Nitin Agarwal

Counsel for the Respondents:
Sri Ashish Kumae Singh

A. Civil Law - Amendment of pleadings -
Code of Civil Procedure, 1908 - Order XV
Rule 5 - Order 6 Rule 17 of the C.P.C. -
Amendment
of
pleadings
cannot
be
allowed so as to alter materially or
substitute the cause of action or the
nature of claim applies to amendments to
the plaint. It has no counterpart in the
principles relating to amendment of the
written statement. Therefore, addition of
a new ground of defence or substituting or
altering a defence or taking inconsistent
pleas in the written statement would not
be objectionable while adding, altering or
substituting a new cause of action in the
plaint may be objectionable. (Para 57)

B. No relief could be granted as claim for
under the petition in case the same does
not flow from the facts as contained in the
petition. No amount of evidence can be
looked into, upon a plea which was never
put forward in the pleadings. (Para 58)

The present petition is liable to be dismissed on
both the grounds namely the amendment filed
by the petitioner will change the nature of the
case and secondly there is no pleadings
whatsoever made by the petitioner in the entire
petition while challenging the aforesaid orders.
Further nothing has been stated in the
amendment application nor in the present
petition regarding the latches in filing the
amendment application since the suit was filed
in this case in the year, 2000 and amendment
was sought by him in the year 2009. (Para 62)

The Civil Suit which was filed by the plaintiffpetitioner is pending consideration before the
Trial Court since last 23 years. Written
statements have already been filed by the
parties. In this view of the matter, Court is of
the opinion that the Trial Court be directed to
decide the aforesaid suit most expeditiously and
positively within a period of six months ...strictly
676 INDIAN LAW REPORTS ALLAHABAD SERIES
in accordance with law and without bring
influenced with any observations made by this
Court in this judgement. (Para 64, 65)

Writ petition disposed of. (E-4)

Precedent followed:

1. Tildesley Vs Harper, (1878) 10 Ch D 393
(Para 33)

2. Cropper Vs Smith, (1884) 26 Ch D 700 (CA)
(Para 34)

3. Steward Vs North Metropolitan Tramways
Co., (1886) 16 QBD 556 (Para 35)

4. Arundhati Mishra Vs Ram Chandra Pandey,
(1994) 2 SCC 29) (Para 36)

5. Weldon Vs Neal, (1887) 19 QBD 394 (Para
37)

6. Kisandas Rupchand Vs Rachappa Vithoba
Shilwant, ILR (1909) 33 Bom 644 (Para 39)

7. Ma Shwe Mya Vs Maung Mo Hnaung, AIR
1922 PC 249 (Para 43)

8. Amulakchand Mewaram Vs. Babulal Kanalal
Taliwala, (1933) 35 Bom LR 569 (Para 44)

9. L.J. Leach & Co. Ltd. Jardine Skinner & Co.,
AIR 1957 SC 357 (Para 45)

10. Pirgonda Hongonda Patil Vs Kalgonda
Shidgonda Patel, AIR 1957 SC 363 (Para 46)

11. Purushottam Umedbhaiu & Co. Vs Manilal &
Sons, AIR 1961 SC 325 (Para 47)

12. Ganesh Trading Co. Vs Moji Ram, (1978) 2
SCC 91 (Para 47)

13. Laxmidas Dayabhai Kabrawala Vs Nanabhai
Chunilal Kabrawala, AIR 1964 SC 11 (Para 48)

14. Jai Jai Ram Manohar Lal Vs National Building
Material Supply, (1969) 1 SCC 869 (Para 50)

15. Ganga Bai Vs Vijay Kumar, (1974) 2 SCC
393 (Para 51)

16. Modi Spg. & Wvg. Mills Co. Ltd. Vs Ladha
Ram & Co., (1976) 4 SCC 320 (Para 52)

17. Haridas Aildas Thadani Vs Godrej Rustom
Kermani, (1984) 1 SCC 668 (Para 53)

18. Suraj Prakash Bhasin Vs Raj Rani Bhas,
(1981) 3 SCC 652 (Para 54)

19. B.K. Narayana Pillai Vs Parmeswaran Pillai,
(2000) 1 SCC 712 (Para 55)

20. Usha Balashaheb Swami Vs Kiran Appaso
Swami, (2007) 5 SCC 602 (Para 56)

21. Bachhaj Nahar Vs Nilima Mandal, (2008) 17
SCC 49 (Para 58)

22. V. Prabhakara Vs Basavaraj K. (Dead) By
Legal Representatives and Another, 2022 (1)
SCC Page 115 (Para 59)

Present petition challenges judgments
and orders dated 06.03.2010, passed by
Additional Civil Judge (Senior Division),
Allahabad as well as the order dated
30.11.2015, passed by Additional District
Judge, Allahabad.

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Nitin Agrawal along with
Ms. Priya Dimri, learned counsel for the
plaintiff-petitioner and Sri Ashish Kumar
Singh, learned counsel for the contesting
respondent Nos.1 & 2.

2. The petitioner has preferred the
present petition under Article 227 of the
Constitution of India with the prayer to
annul
Judgments
and
orders
dated
06.03.2010 passed by Additional Civil
Judge (Senior Division) Court No. 6
Allahabad as well as the order dated
30.11.2015 passed by Additional District
Judge, Court No. 10 Allahabad insofar as it
relates with the prayer no. (a) of the
proposed amendment sought which has
been rejected by the trial court and affirmed
4 All. Smt. Neeta Agarwal Vs. Smt. Shanti Rani Agarwal & Ors.
677
by the revisional court by means of the
impugned orders and substitute the same by
its own judgment allowing the amendment
application in toto or direct the trial court to
decide the amendment application afresh in
the light of observation/ direction of this
Court.

3. Facts in brief as contained in the
petition are that the property bearing house
no. 129/Al situated at Darbhanga Colony,
District - Allahabad of which the petitioner
is sole owner and is in possession. The
house no. 129 had been constructed over
plot no. 33 Darbhanga Castle compound
District
Allahabad
of
which
one
Chowdhary Labh Singh was the recorded
owner. Labh Singh through his will deed
dated 29.02.1966 divided the said house in
two equal portions bequeathing the same in
favour of his two sons through will deed.
Northern 1/2 portion of said house was
allocated in favour of Shri Surendra Jeet
Singh Rekhi/ defendant respondent no. 3
and the southern 1/2 portion was allocated
to Shri Nirmal Jeet Singh his other son.

4. After the death of Chowdhary Labh
Singh
the
defendant/respondent
No.3
became the sole and absolute owner in
possession over the northern half portion of
House No.129 Darbhanga Castle Colony
Allahabad total area 600 Sq. Yards (501.60
Square meters) out of which covered area
was 302 Square Yards (252.47 Square
Meters) and rest of area 298 Square Yards
(249.13 Square Meter) was an open area.
The Nagar Nigam allotted House No.
129/1A to the said house in the name of
respondent no. 3. The respondent no.3
became absolute recorded owner of the
house in question. The respondent no. 3
executed sale deed of the house in question
in respect of the area 430 Square Meters
(514.39 Sq.) through registered sale deed
dated
19.02.1994
in
favour
of
the
Plaintiff/petitioner.

5. After execution of sale deed the
respondent
No.3
remained
owner
of
remaining area 85.61 Sq. Yards (600 -
514.39)=85.61. Thereafter the respondent
No.3 executed a sale deed dated 26.10.1994
in favour of Smt. Indira Mishra for area
85.16 Sq. Yards = 72 Sq. Yards of the
Darbhanga Colony in respect of House
No.129/1. Thus, the respondent no.3 sold
the entire area of house no. 129/1
Darbhanga Colony Allahabad by means of
two sale deeds. Therefore, after execution
of the aforesaid two sale deeds, though no
area remained with the respondent No.3
even then he executed another sale deed of
excess area 80 Sq. Yards of House No.
129/1 Darbhanga Colony Allahabad in
favour of defendant/respondent no. 1
through sale deed dated 19.07.1997.

6. It is argued that the aforesaid sale
deed could not be executed by the
respondent
No.3
in
favour
of
the
respondent No.1 as the respondent No.1
was never in physical possession over any
part of the house in question. It is argued
that due to mistake in the sale deed dated
19.02.1994
executed
in
favour
of
petitioner, the eastern boundary was
wrongly shown to be part of house no.
129/1 Darbhanga Colony Allahabad after
the execution of second sale deed dated
26.10.1994 and no area of house in
question remained balance. It is argued
that
on
26.08.2000
and
the
defendants/respondent no. 1 and 2 tried to
interfere in peaceful possession of the
Plaintiff/
petitioner
and
Plaintiff/
petitioner
filed
Civil
Suit
being
Original.Suit. No. 432 of 2000 (Smt.
Neeta Agrawal Vs. Smt. Shanti Rani
Agrwal and two others).
678 INDIAN LAW REPORTS ALLAHABAD SERIES

7.
In
the
aforesaid
suit,
the
defendants/respondent no. 1 and 2 filed
their joint written statement along with
counter
claim
on
22.11.2000.
The
respondent no. 3 also filed his separate
written statement taking different stand but
failed to justify the area alleged to be sold
in favour of respondent no. 1. It is argued
that the petitioner filed replication to the
aforesaid written statements filed by the
respondents denying the contents of the
aforesaid written statement.

8. In the meanwhile, an amendment
application was filed by the Plaintiff/
petitioner on 01.10.2009 which was marked
as Paper no. 103-A seeking certain
amendments in the plaint as per provisions
contained under Order 6 Rule 17 of the
C.P.C The aforesaid amendment was
opposed by the respondent nos. 1 and 2
only and they filed their objection on
05.10.2009. The trial court vide its order
dated
06.03.2010 partly
allowed
the
amendment application and rejected the
prayer seeking amendment in Eastern
boundary of the disputed house.

9. Aggrieved by the aforesaid order,
the petitioner preferred Civil Revision No.
91 of 2010 in the Court of District Judge
under section 115 C.P.C. on 26.03.2010.
The Revisional Court rejected the same
vide its order dated 30.11.2015. Hence the
present petition.

10. A counter affidavit has been
filed by Sri Ashish Kumar Singh, learned
counsel for respondent Nos.1 & 2. It is
argued that the total area of house was
600 sq. yards mentioned in the sale deed
map and eastern open area was not
mentioned in the sale deed map and in the
sale deed map, it is specifically stated
that open area of which respondent No.3
was owner is in the eastern side. It is
further stated in the counter affidavit that
the respondent No.3 having more area in
the eastern side and the same was sold by
him to the respondent No.1. It is further
argued that the land in dispute was
purchased by the respondent No.1 and the
amendment application was illegally filed
by the petitioner after the expiry of nine
years of the filing of the suit. By moving
the aforesaid amendment application, the
petitioner is trying to linger on the
proceedings. It is further argued that
absolutely a frivolous case has been
carved out by the plaintiff-petitioner by
moving amendment application. Hence,
the amendment application by which an
amendment is sought in the prayer of the
suit was rightly rejected by the Courts
below.

11. A rejoinder affidavit has also been
filed by counsel for the petitioner reiterated
the same facts as narrated in the petition.

12. Heard learned counsel for the
parties and with the consent of learned
counsel for the parties, the present petition
is finally decided.

13. From perusal of the facts narrated
in the petition, it is clear that Original Suit
No.432 of 2000 was filed by the plaintiffpetitioner in the Civil Court of Allahabad
with the following reliefs:-

"(a) That the defendants, their
agents, servants, representatives and all
persons
claiming
through
them
be
restrained
by
means
of
permanent
injunction from disturbing the possession of
the plaintiff in Premises No. 129/1 A,
Darbhanga
Castle,
Allahabad
or
to
demolish any portion of the boundary walls
or the gate fixed therein or raise any
4 All. Smt. Neeta Agarwal Vs. Smt. Shanti Rani Agarwal & Ors.
679
constructions on the East of the plaintiff's
house.

(b) That, if defendant no. 1 and 2
produce and rely upon any sale deed
executed by defendant no. 3 in respect of
any portion of premises No. 129/1 A,
Darbhanga Castle, Allahabad city, the
same may be declared null and void and
non est. against the interest of the plaintiff.

(c) That the cost of the suit be
awarded in favour of the plaintiff and
against the defendants.

(d) That any other and further
relief be granted in favour of the plaintiff
and against the defendants which the court
may deems fit in the interest of justice.

Description of the Premises in
Suit.

514.39 sq yards ( equal to 430.03
sq. mts.) of the construction area and the
land appurtenant thereto shown bounded
by Red Lines in the plan appended to the
sale deed of the house no. 129/1 A,
Darbhanga
Colony,
Allahabad
city,
boundaries whereof are as follows : -

North -- Sarak

South -- House of Sri Sanjay
Agrawal with common boundry wall.

East - Open Land of defendant
no. 3

West - Open Land."

14. Paragraph 7 of the plaint reads as
follows:-

"7. That, the area sold, as stated
above, is 430.03 sq mts.(equal to 514.39 sq
yards) shown bounded by RED LINES In
the site plan appended to the sale deed with
the following boundries:

North -- Sarak

South -- house of Sri Sanjay
Agrawal with common boundry wall.

East - open Land of defendant
no. 3

West - open Land."

15. Now by way of amendment, the
petitioner wanted that in place of the words
"open land of defendant no.3 described
against east side of the boundaries, as
contained in paragraph-7 of the plaint, the
word corner of the house should be
inserted.

16. From perusal of the description of
the premises in suit, it is clear that in the
sale deed which according to the petitioner
was executed in his favour, under the
heading description of the premises in suit
against the word East it is mentioned as
"open land of defendant no.3". The same
description has been given by the petitioner
in paragraph-7 of the plaint as quoted
above. Now the petitioner wants by way of
amendment application that against the
boundaries of the property as mentioned
against the word East "in place of open
land of defendant no.3" it should be
mentioned as corner of the house.

17. While rejecting the amendment
application, it was recorded that since no
application was filed at any point of time
by plaintiff-petitioner to make correction in
the sale deed, the permission to amend the
plaint cannot be granted. Findings were
also recorded that in case the amendment is
680 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed, it will change the nature of the
plaint. The operative portion of the order
passed by the Trial Court is reproduced
below:-

परन्तु प्रार्थना-पत्र 103 ए का पैरा ए जिसके िररये
वादी वाद-पत्र में यह अंजकत कराना चाहता है जक पूवथ साइड में
बाउण्डी जवकय-पत्र व वाद-पत्र में गलत अंजकत हो गये है इस िगह
मकान का कोना है जलखने की अनुमजत दी िाय सही प्रतीत नहीं
होता है क्योजक यह तथ्य पूवथ से ही वादी के संज्ञान में है तर्ा वादी
द्वारा जवकय-पत्र में भी कोई दुरूस्तीकरण नहीं कराया गया है तर्ा
यजद वादी को वाद-पत्र में अंजकत तथ्यों को जलखने की अनुमजत
प्रदान की िाती है तो जववाजदत सम्पजि को प्रकृजत बदल िायेगी ।

18. Similar findings were also
recorded by the Revisional Court while
rejecting the Revision. The relevant portion
of the order reads as follows:-

vr% Li"V gS fd la'kks/ku çkFkZuki=
103, ds iSjk&^^,Þ esa of.kZr rF; ß vksisu yS.M
vkQ fMQs.Ms.V ua03^^ ds LFkku ij ÞdkuZj vkQ
gkmlÞ fy[ks tkus dh fLFkfr esa okn dh ç--fr esa
ifjorZu gksrk gSA ;g Li"V gS fd v/khuLFk
U;k;ky; }kjk vius vkns'k esa Hkh bl rF; dks
Li"V:i ls vafdr fd;k gS fd ßla'kks/ku dsoy
iwjc lkbM dks cnyus ds fy;s çkFkZuki= [kkfjt
fd;s tkus ;ksX; gS D;ksafd ;g rF; fod; foys[k
esa gh [kqyk LFkku çfroknh laå3 fy[kk gqvk gSA
;g la'kks/ku dsoy nsjh dh otg ls Lohdkj ugha
fd;k tk jgk gS cfYd fod; i= Hkh ;g ckm.Mah
iwjc lkbM esa [kqyk LFkku çfroknh l0 3 vafdr
gS tks okni= esa Hkh vafdr gSA blfy;s okni= es
la'kks/ku dh vuqefr ugha fn;k tkrk gS D;ksfd
mä la'kks/ku ls oknxzLr lEifÙk dh ç--fr cny
tk;sxhAÞ voj U;k;ky; }kjk çkFkZuk i= 103, ds
çLrkfor çLrj ch o lh esa çLrkfor la'kks/ku dks
Lohdkj dj fy;k x;k FkkA Li"Vr%% çkFkZuki=
103, ds iSjk , dks Lohdkj fd;s tkus dh fLFkfr
esa okn dh ç--fr esa ifjorZu gksrk gS D;ksafd oknh
vksisu yS.M vkQ çfroknh l0 3 ds LFkku ij
dkuZj vkQj gkml fy[kuk pkgrk gS tks fd
fod; foys[k esa okn ugha gS oknh dks oknxzLr
lEifÙk ds lEcU/k esa tks vf/kdkj mn~Hkwr gS] og
fod; foys[k ds i'pkr gh gS vkSj mls lHkh rF;
iwoZ ls gh ekywe Fks mls bl pkSgnnh dk Hkh
lE;d Kku jgk gS vr% çLrkfor la'kks/ku tks
oknxzLr lEifÙk ds iwjc vafdr fd;s tkus dks
ysdj gS] mls okni= esa vafdr fd;s tkus dh
vuqefr ugha nh tk ldrhA vr% voj U;k;k=;
}kjk ikfjr vkns'k fnukafdr 06-03-10 esa dksbZ
voS/kkfudrk vFkok rkfRod vfu;ferrk ugha dh
x;h gSA

19. In the present petition the orders
passed by both the courts below rejecting
the amendment applications are under
challenge. Only ground taken in the present
petition to challenge the aforesaid order
contained in paragraph-23 & 24 of the
petition reads as follows:-

"23. That in case during the
pendency of the present writ petition this
Hon'ble Court is not graciously be pleased
to stay the further proceedings of the O.S.
No. 432 of 2000 Smt. Neeta Agrawal Vs.
Smt. Shanti Rani Agrawal pending before
the respondent no. 5, then the petitioner
shall sufer irreparable loss and the suit
may be defeated.

24.
That
the
balance
of
convenience lies in suitable interim order
being passed to protect the interest of the
petitioner during pendency of the writ
petition before this Hon'ble Court."

20. From perusal of the aforesaid, the
Court is of the opinion that no proper
pleadings whatsoever has been taken by the
petitioner while challenging the aforesaid
order.

21. In order to consider whether the
plaintiff-petitioner has made out a case for
amendment of his plaint, it is useful to refer
Order VI Rule 17 CPC which reads as
under:
4 All. Smt. Neeta Agarwal Vs. Smt. Shanti Rani Agarwal & Ors.
681

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.

22. The first part of the rule makes it
abundantly clear that at any stage of the
proceedings, parties are free to alter or 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 are
able to satisfy the court that in spite of due
diligence they could not have raise the issue
before the commencement of trial and the
court is satisfied with their explanation,
amendment can be allowed even after
commencement of the trial.

23. To make 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.

24. The courts have very wide
discretion in the matter of amendment of
pleadings but court's powers must be
exercised judiciously and with great care.
While
deciding
applications
for
amendments the courts must not refuse
bona fide, legitimate, honest and necessary
amendments and should never permit mala
fide,
worthless
and/or
dishonest
amendments.

The first condition which must be
satisfied before the amendment can be
allowed by the court is whether such
amendment
is
necessary
for
the
determination of the real question in
controversy. If that condition is not
satisfied,
the
amendment
cannot
be
allowed. This is the basic test which should
govern the courts' discretion in grant or
refusal of the amendment.

The other important condition
which should govern the discretion of the
court is the potentiality of prejudice or
injustice which is likely to be caused to the
other side. Ordinarily, if the other side is
compensated by costs, then there is no
injustice but in practice hardly any court
grants actual costs to the opposite side.

25. Some basic principles which
ought to be taken into consideration while
allowing or rejecting the application for
amendment are: (i) whether the amendment
sought is imperative for proper and
effective adjudication of the case; (ii)
whether the application for amendment is
bona fide or mala fide, (iii) the amendment
should not cause such prejudice to the other
side
which
cannot
be
compensated
adequately in terms of money; (iv) refusing
amendment would in fact lead to injustice
or lead to multiple litigation; (v) whether
the proposed amendment constitutionally
or fundamentally changes the nature and
character of the case; and (vi) as a general
682 INDIAN LAW REPORTS ALLAHABAD SERIES
rule, the court should decline amendments
if a fresh suit on the amended claims would
be barred by limitation on the date of
application. 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.

26. When I apply the principle laid
down by the above judgments, the
conclusion becomes irresistible that the
view taken by the courts below in the
impugned orders cannot be said to be
unjustified.

27. I am tracing the legislative
history,
objects
and
reasons
for
incorporating Order 6 Rule 17 not because
it is necessary to dispose of this case, but a
large number of applications under Order 6
Rule 17 are filed and our courts are flooded
with such cases. Indiscriminate filing of
applications of amendments is one of the
main causes of delay in disposal of civil
cases.

28. I deem it appropriate to give the
historical background of Rule 17 of Order 6
which corresponds to Section 53 of the old
Code of 1882. It is similar to Order 21 Rule
8 of the English Law. Order 6 Rule 17 CPC
is already quoted above.

29. In my considered view, Order 6
Rule 17 is one of the important provisions
of CPC, but I have no hesitation in also
observing that this is one of the most
misused provision of the Code for dragging
the proceedings indefinitely, particularly in
the Indian courts which are otherwise
heavily overburdened with the pending
cases. All civil courts ordinarily have a
long list of cases, therefore, the courts are
compelled to grant long dates which causes
delay in disposal of the cases. The
applications for amendment lead to further
delay in disposal of the cases.

30. In a recently published unique,
unusual and extremely informative book
Justice, Courts and Delays, the author Mr.
Arun Mohan, a Senior Advocate of the
High Court of Delhi and the Hon'ble
Supreme Court, from his vast experience as
a
civil
lawyer
observed
that
80%
applications under Rule 17 of Order 6 are
filed with the sole objective of delaying the
proceedings, whereas 15% applications are
filed because of lackadaisical approach in
the first instance, and 5% applications are
those where there is actual need of
amendment.
His
experience
further
revealed that out of these 100 applications,
95 applications are allowed and only 5
(may be even less) are rejected. According
to him, a need for amendment of pleading
should arise in a few cases, and if proper
rules with regard to pleadings are put into
place, it would be only in rare cases.
Therefore, for allowing amendment, it is
not just costs, but the delays caused
thereby, benefit of such delays and the
additional costs which had to be incurred
by the victim of the amendment. The court
must scientifically evaluate the reasons,
purpose and effect of the amendment and
all these factors must be taken into
consideration while awarding the costs.

31. To curtail delay in disposal of
cases, in 1999 the legislation altogether
deleted
Rule
17
which
meant
that
amendment of the pleadings would no
longer
have
been
permissible.
But
immediately after the deletion there was
widespread uproar and in 2002 Rule 17 was
4 All. Smt. Neeta Agarwal Vs. Smt. Shanti Rani Agarwal & Ors.
683
restored, but added a proviso. That proviso
applies only after the trial has commenced.
Prior to that stage, the situation remains as
it was. According to the view of the learned
author Mr. Arun Mohan as observed in his
book, although the proviso has improved
the
position,
the
fact
remains
that
amendments should be permissible, but
only if a sufficient ground therefor is made
out, and further, only on stringent terms. To
that end, the rule needs to be further
tightened.

32. The general principle is that
courts at any stage of the proceedings may
allow either party to alter or amend the
pleadings in such manner and on such
terms as may be just and all those
amendments must be allowed which are
imperative
for
determining
the
real
question in controversy between the
parties.

33. In Tildesley v. Harper (1878) 10
Ch D 393 which was decided by the
English court even earlier than Cropper
case (supra), in an action against a lessee
for setting aside a lease, in the statement of
claim it was alleged that the power of
attorney of the donee had received a
specified sum as a bribe. In the statement of
defence, each circumstance was denied but
there was no general denial of a bribe
having
been
given.
A
prayer
for
amendment of the defence statement was
refused. The Court of Appeal held that the
amendment ought to have been allowed.
Bramwell,
L.J.
made
the
following
pertinent observations:

"... I have had much to do in
Chambers with applications for leave to
amend, and | may perhaps be allowed to
say that this humble branch of learning is
very familiar to me. My practice has
always been to give leave to amend unless I
have been satisfied that the party applying
was acting mala fide, or that, by his
blunder, he had done some injury to his
opponent which could not be compensated
for by costs or otherwise."

(emphasis added)

34. In the leading English case of
Cropper v. Smith (1884) 26 Ch D 700
(CA), the object underlying amendment of
pleadings has been laid down by Browen,
L.J. in the following words:

"...
it
is
a
well-established
principle that the object of courts is to
decide the rights of the parties, and not to
punish them for mistakes they make in the
conduct
of
their
cases
by
deciding
otherwise than in accordance with their
rights. ... I know of no kind of error or
mistake which, if not fraudulent or intended
to overreach, the court ought not to
correct, if it can be done without injustice
to the other party. Courts do not exist for
the sake of discipline, but for the sake of
deciding matters in controversy, and I do
not regard such amendment as a matter of
favour or of grace. ... It seems to me that as
soon as it appears that the way in which a
party has framed his case will not lead to a
decision of the real matter in controversy,
it is as much a matter of right on his part to
have it corrected, if it can be done without
injustice, as anything else in the case is a
matter of right," (emphasis supplied)

35. In Steward v. North Metropolitan
Tramways Co. reported in (1886) 16 QBD
556, the plaintiff filed a suit for damages
against
the
tramways
company
for
negligence of the company in allowing the
tramways to be in a defective condition.
The company denied the allegation of
684 INDIAN LAW REPORTS ALLAHABAD SERIES
negligence. It was not even contended that
the company was not the proper party to be
sued. More than six months after the
written statement was filed, the company
applied for leave to amend the defence by
adding the plea that under the contract
entered into between the company and the
local authority the liability to maintain
tramways in proper condition was of the
latter and therefore, the company was not
liable. On the date of the amendment
application, the plaintiff's remedy against
the local authority was time-barred. Had
the agreement been pleaded earlier, the
plaintiff could have filed a suit even against
the
local
authority.
Under
the
circumstances, the amendment was refused.

36. 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 Kumar and Arundhati Mishra v.
Ram Charitra Pandey reported in (1994) 2
SCC 29).

37. In another leading English case
Weldon v. Neal (1887) 19 QBD 394, A
filed a suit against B for damages for
slander. A thereafter applied for leave to
amend the plaint by adding fresh claims in
respect of assault and false imprisonment.
On the date of the application, those claims
were barred by limitation though they were
within the period of limitation on the date
of filing the suit. The amendment was
refused since the effect of granting it would
be to take away from B the legal right (the
defence under the law of limitation) and
thus would cause prejudice to him.

38. In the said case, Pollock, J.
quoting with approval the observation of
Bremwell, L.J. rightly observed in the case
of Steward case (supra):-

"... The test as to whether the
amendment should be allowed, is whether
or not the defendants can amend without
placing the plaintiff in such a position that
he cannot be recouped, as it were, by any
allowance of costs, or otherwise."

According
to
him
such
an
amendment ought not be allowed.

39. Kisandas Rupchand v. Rachappa
Vithoba Shilwant reported in ILR (1909)
33 Bom 644 is probably the first leading
case decided by the High Court of Bombay
under the present Code of 1908. There A,
the plaintiff, averred that in pursuance of a
partnership agreement, he delivered Rs
4001 worth of cloth to B, the defendant,
and sued for dissolution of partnership
and accounts. The trial court found that A
delivered the cloth worth Rs 4001 but
held that there was no partnership and the
suit was not maintainable. In appeal, A
sought amendment of the pleadings by
adding a prayer for the recovery of Rs
4001. On that day, claim for recovery of
money was barred by limitation. The
amendment was allowed by the appellate
court and the suit was decreed. B
challenged the decree. The High Court
upheld the order and dismissed the
appeal.

40. Referring to leading English
decisions on the point, Batchelor, J. stated:
(Kisandas case (supra))
4 All. Smt. Neeta Agarwal Vs. Smt. Shanti Rani Agarwal & Ors.
685

"...
From
the
imperative
character of the last sentence of the rule it
seems to me clear that, at any stage of the
proceedings, 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."

41. In a concurring judgment,
Beaman, J. observed that:

".. the practice is to allow all
amendments, whether introducing fresh
claims or not, so long as they do not put the
other party at a disadvantage for which he
cannot be compensated by costs."

42. His Lordship proceeded to state:
(Kisandas case supra))

"In my opinion two simple tests,
and two only, need to be applied, in order
to ascertain whether a given case is
within the principle. First, could the
party asking to amend obtain the same
quantity of relief without the amendment?
If not, then it follows necessarily that the
proposed amendment places the other
party at a disadvantage, it allows a his
opponent to obtain more from him than
he would have been able to obtain but for
the
amendment.
Second,
in
those
circumstances, can the party thus placed
at a disadvantage be compensated for it
by costs? If not, then the amendment
ought not, unless the case is so peculiar
as to be taken out of the scope of the rule,
to be allowed."

43. The basic principles of grant or
refusal of amendment articulated almost
125 years ago are still considered to be
correct statement of law and our courts
have been following the basic principles
laid down in those cases.

If I carefully examine all the
cases, the statement of law declared by the
Privy Council in Ma Shwe Mya v. Maung
Mo Hnaung reported in AIR 1922 PC
249 has been consistently accepted by the
courts till date as correct statement of law.
The Privy Council observed: (IA pp. 21617):-

"... All rules of court are nothing but
provisions intended to secure the proper
administration of justice, and it is therefore
essential that they should be made to serve
and be subordinate to that purpose, so that
full powers of amendment must be enjoyed
and should always be liberally exercised,
but nonetheless no power has yet been
given to enable one distinct cause of action
to be substituted for another, nor to
change, by a means of amendment, the
subject-matter of the suit."

44. In Amulakchand Mewaram vy.
Babulal Kanalal Taliwala (1933) 35 Bom
LR 569 the Bombay High Court again had
an occasion to decide a case under Order 6
Rule 17. In that case, the Court approved
the following observations of Beaumont,
C.J. and observed: (Bom LR p. 571)

"... the question whether there
should be an amendment or not really turns
upon whether the name in which the suit is
brought is the name of a non-existent
person, or whether it is merely a
misdescription of existing c persons. If the
former is the case, the suit is a nullity and
no amendment can cure it. If the latter is
the case, prima facie there ought to be an
amendment because the general rule,
subject no doubt to certain exceptions, is
that the Court should always allow an
686 INDIAN LAW REPORTS ALLAHABAD SERIES
amendment where any loss to the opposing
party can be compensated for by costs."

45. In L.J. Leach & Co. Ltd. v.
Jardine Skinner & Co.' reported in AIR
1957 SC 357, a suit for damages for
"conversion of goods" filed by the plaintiff
was decreed by the trial court but the
decree was set aside by the High Court. In
an appeal before this Court, the plaintiff
applied for amendment of the plaint by
raising an alternative claim for damages for
breach of contract for "non-delivery of
goods'', The amendment was resisted by the
defendant contending that it sought to
introduce a new cause of action which was
barred by limitation on e the day the
amendment was sought and hence, it would
seriously prejudice the defendant. Though
the Court noticed "considerable force" in
the objection, keeping in view the prayer in
the amendment which was not "foreign to
the scope of the suit" and all necessary
facts were on record, it allowed the
amendment.

46. In Pirgonda Hongonda Patil v.
Kalgonda Shidgonda Patil AIR 1957 SC
363, A obtained a decree for possession
against B. He was, however, obstructed in
obtaining possession by C in execution. A
then filed a substantive suit against B and
C. In the plaint, except saying that he had
obtained a decree against B, nothing more
was stated by A. Hence, he filed an
application for amendment which was
rejected by the trial court but allowed by
the High Court. C approached this Court.
Dismissing the appeal and confirming the
order of the High Court, this Court
observed that the discretionary power of
amendment was not exercised by the High
Court on wrong principles. There was
merely a defect in the pleading which was
removed by the amendment. The quality
and quantity of the reliefs sought remained
the same. Since the amendment did not
introduce a new case, the defendant was
not taken by surprise.

47. In Purushottam Umedbhai &
Co. v. Manilal & Sons reported in AIR
1961 SC 325 a suit was instituted in the
name of the firm by the partners doing
business outside India. It was held that
there was only misdescription of the
plaintiff. The plaint in the name of the firm
was not a nullity and could be amended by
substituting the names of partners.

50. In similar circumstances, in a
subsequent case Ganesh Trading Co. v.
Moji Ram (1978) 2 SCC 91, this Court
reiterated
the
law
laid
down
in
Purushottam Umedbhai & Co. (supra)
The Court observed:

"5. It is true that, if a plaintiff
seeks to alter the cause of action itself and
to
introduce
indirectly,
through
an
amendment of his pleadings, an entirely
new or inconsistent cause of action,
amounting virtually to the substitution of a
new plaint or a new cause of action in
place of what was originally there, the
Court will refuse to permit it if it amounts
to depriving the party against which a suit
is pending of any right which may have
accrued in its favour due to lapse of time.
But, mere failure to set out even an
essential fact does not, by itself, constitute
a new cause of action. A cause of action is
constituted by the whole bundle of essential
facts which the plaintiff must prove before
he can succeed in his suit. It must be
antecedent to the institution of the suit. If
any essential fact is lacking from averments
in the plaint the cause of action will be
defective. In that case, an attempt to supply
the omission has been and could sometimes
4 All. Smt. Neeta Agarwal Vs. Smt. Shanti Rani Agarwal & Ors.
687
be viewed as equivalent to an introduction
of a new cause of action which, cured of its
shortcomings, has really become a good
cause of action. This, however, is not the
only possible interpretation to be put on
every defective state of pleadings. Defective
pleadings are generally curable if the
cause of action sought to be brought out
was not ab initio completely absent. Even
very defective pleadings may be permitted
to be cured, so as to constitute a cause of
action where there was none, provided
necessary conditions such as payment of
either any additional court fees, which may
be payable, or, of costs of the other side are
complied with. It is only if lapse of time has
barred the remedy on a newly constituted
cause of action that the courts should,
ordinarily, refuse prayers for amendment
of pleadings."

48.