# Smt. Subhawati & Ors v. Smt. Lalita & Anr. 868 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 12 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-25
- **Case number:** Matter Under Article 227 No. 816 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-subhawati-ors-v-smt-lalita-anr-868-indian-law-reports-allahabad-series-48056
- **Pages:** 7

## Headnote

Civil Law - Code of Civil Procedure,1908 -
Application by plaintiff seeking amendment to
the plaint allowed by the Appellate CourtDefendant filed Writ-Plaintiffs introducing new
cause of action and a completely different relief
to cloud defendant's title which they have
received
through
impugned
sale
deedamendment sought in Appeal after the suit has
been tried and decided-facts sought to be
amendment was well within the knowledge of
Plaintiff-no justification of delay-Amendment
that is malafide should never be grantedimpugned order-cryptic-quashed.

Petition allowed. (E-9)

List of Cases cited:

1 Rajendra Prasad Vs A.D.J./Fast Track Court-I,
Gonda & anr., 2015 SCC OnLine All 8100

## Text

12 All. Smt. Subhawati & Ors. Vs. Smt. Lalita & Anr.
867
meditated fight between the two parties. If
the accused persons had reached their
houses and the members of the prosecution
party had followed them and opened the
assault near the house of the accused
persons then it could probably be held to
be a case of self-defence of the accused
persons in which case non-explanation of
the injuries sustained by the accused
persons would have assumed significance.
The learned Sessions Judge has on
appreciation of oral and the circumstantial
evidence inferred that the place of the
incident was the chowk and not a place
near the houses of the accused persons.
Nothing more could have been revealed by
other village people or the party of tight
rope dance performers. The evidence
available on record shows and that
appears to be very natural, that as soon as
the melee ensued all the village people and
tight-rope dance performers took to their
heels. They could not have seen the entire
incident. The learned Sessions Judge has
minutely scrutinised the statements of all
the
eye-witnesses
and
found
them
consistent and reliable. The High Court
made
no
effort
at
scrutinising
and
analysing the ocular findings arrived at by
the Sessions Court. With the assistance of
the learned counsel for the parties we have
gone through the evidence adduced and on
our independent appreciation we find the
eye-witnesses consistent and reliable in
their narration of the incident. In our
opinion non-examination of other witnesses
does not cast any infirmity in the
prosecution case."

(Emphasised by me)

24. On perusal of the statements of all
the prosecution witnesses, it is clear that
not a single prosecution witness has seen
the incident, there is no direct evidence or
there is not even a circumstantial evidence,
place of occurrence is highly doubtful and
the incident itself could not be proved by
the prosecution, coupled with the fact that
the two witnesses namely Awadhesh son of
the appellant and deceased and Mahendra
(inquest witness) have been withheld who
could have given the true version of the
prosecution case, therefore, on the basis of
such evidence, it is hard to uphold the
conviction of the appellant on this quality
of evidence. Accordingly, the criminal
appeal filed against the judgment and order
of conviction dated 27.11.2015 and order
of sentence dated 28.11.2015 is allowed.
The order of the trial court convicting and
sentencing the appellant is set aside. The
appellant is acquitted of all the charges
levelled against him. The appellant be
discharged of his bail bonds.

25. Let a copy of this judgment be
transmitted to the learned trial court as well
as concerned Jail Superintendent for
compliance. Lower court record be sent
back to the lower court.

26. Smt. Kalpana Singh learned
Amicus Curiae shall be paid a sum of Rs.
20,000/- for assisting the Court from the
State Exchequer through Registrar General
within two months from the date of
production of certified copy of this order.
----------
(2022) 12 ILRA 867
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 816 of 2019

Smt. Subhawati & Ors. ...Petitioners
Versus
Smt. Lalita & Anr. ...Respondents
868 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Rajesh Kumar Tiwari, Smt. Ruchi Gupta

Counsel for the Respondents:
Sri Ram Avatar, Sri Mahabir Yadav

Civil Law - Code of Civil Procedure,1908 -
Application by plaintiff seeking amendment to
the plaint allowed by the Appellate CourtDefendant filed Writ-Plaintiffs introducing new
cause of action and a completely different relief
to cloud defendant's title which they have
received
through
impugned
sale
deedamendment sought in Appeal after the suit has
been tried and decided-facts sought to be
amendment was well within the knowledge of
Plaintiff-no justification of delay-Amendment
that is malafide should never be grantedimpugned order-cryptic-quashed.

Petition allowed. (E-9)

List of Cases cited:

1 Rajendra Prasad Vs A.D.J./Fast Track Court-I,
Gonda & anr., 2015 SCC OnLine All 8100
(Delivered by Hon'ble J.J. Munir, J.)

This is a defendants' petition under
Article 227 of the Constitution challenging
the order, granting an amendment to the
plaint by the Appellate Court.

2. Sadavriksha, a native of Village
Digra
Somali,
Pargana
and
Tehsil
Salempur, District Deoria, was twice
married. He married Smt. Tetri, of whom
two sons were born, Triloki and Kapildev.
Smt. Tetri passed away in Sadavriksha's life
time. After
her
demise,
Sadavriksha
married Smt. Lalita. Lakkhu, another son of
Sadavriksha, was born of the wedlock of
Sadavriksha
and
Smt.
Lalita.
Smt.
Subhawati is Triloki's wife whereas Smt.
Dhanmati is Kapildev's. It is between Smt.
Lalita and Lakkhu on one hand and Smt.
Subhawati, Smt. Dhanmati, Sadavriksha,
Triloki and Kapildev on the other, that
litigation erupted in the year 2005, when
Sadavriksha, now deceased, executed a sale
deed of his land in favour of Smt.
Subhawati and Smt. Dhanmati.

3. Smt. Lalita and Lakkhu, who shall
hereinafter be referred to as 'the plaintiffs'
(unless the context requires individual
reference),
commenced
action
by
instituting O.S. No. 333 of 2005 in the
Court of the Civil Judge (Jr. Div.), Deoria,
seeking cancellation of the sale deed and
permanent prohibitory injunction. Smt.
Subhawati,
Smt.
Dhanmati,
the
two
vendees were arrayed as the defendants
first set to the suit, Sadavriksha, the vendor
was arrayed as the defendant second set
and Triloki and Kapildev, husbands of the
two vendees and sons of Sadavriksha, were
arrayed as the defendants third set.

4. Now, Sadavriksha is no more,
which leaves for the defendants, Smt.
Subhawati, Smt. Dhanmati, Triloki and
Kapildev. All of them together, shall
hereinafter be called as 'the defendants,
unless the context requires individual
reference.

5. The plaintiffs' case briefly put is
that they represent Sadavriksha's family
after his second marriage to Smt. Lalita,
who was married to Sadavriksha some 30
years antedating the commencement of
action. Lakkhu was born to parties and 18
years old at the time of institution of the
suit. For some time past, relations between
the plaintiffs and Sadavriksha had come
under strain in consequence whereof Smt.
Lalita had brought proceedings against
Sadavriksha for the grant of maintenance. A
maintenance order had been passed against
Sadavriksha. In compliance, Smt. Lalita
was in receipt of maintenance.
12 All. Smt. Subhawati & Ors. Vs. Smt. Lalita & Anr.
869

6. Of late, the daughters-in-law of
Sadavriksha had become the recipients of
his favour and for the said reason, his sons
Triloki and Kapildev together with their
wives had colluded and ganged up to
motivate and defraud Sadavriksha into
executing a sale deed of his entire landed
property in their favour. They succeeded in
defrauding Sadavriksha into executing a
registered sale deed dated 14.04.2005 in
favour of Smt. Subhawati and Smt.
Dhanmati. Upon coming to know of the
execution of the sale deed aforesaid, the
plaintiffs instituted the suit for cancellation
and permanent injunction on the following
grounds:

(a) No sale consideration was paid to
Sadavriksha at the time of execution of the
sale deed and the consideration shown is a
sham.

(b) The suit property is the acquisition
of Jokhu, Sadavriksha's ancestor, on
account of which the plaintiffs have a onethird share therein.

(c) The execution of the impugned sale
deed by Sadavriksha has been secured
through
fraud,
deceit
and
misrepresentation.

(d) Sadavriksha had no right to
alienate the property that was ancestral
and the sale deed is ultra vires.

(e) Succession to the property in
dispute
is
governed
by
the
Hindu
Succession Act and the plaintiffs, therefore,
have a right as co-sharers therein.

(f) Sadavriksha had no legal necessity
to execute the sale deed.

(g) The impugned sale deed is not
properly executed and verified.

(h) The plaintiffs are in possession of
the suit property in accordance with the
family settlement.

(i) The impugned sale deed is not
Sadavriksha's mental act.

7. It is on these grounds that a decree
for cancellation of the registered sale deed
dated 14.02.2005 was sought with a prayer
that the cancellation may be communicated
to the Sub-Registrar. A further decree for
permanent prohibitory injunction has been
sought to the effect that the defendant be
restrained from interfering in the peaceful
possession of the plaintiffs over their half
share in the suit property, threatening them
or raising construction. The details of the
suit property are given at the foot of the
plaint, which are three agricultural plots,
bearing Nos. 102, 381 and 233, with a total
area of 0.704 hectare to the extent of a half
share.

8. The defendants contested the suit
pleading a case, in substance, that after
Sadavriksha married Smt. Lalita, the two
lived together, but Sadavriksha's sons born
of the first marriage, Triloki and Kapildev
were
estranged
with
their
father.
Sadavriksha executed a sale deed of his
land that he owned in Delhi in favour of
Lakkhu, his son born of Smt. Lalita. Triloki
and Kapildev took up work as casual
labourers and with their savings started a
business of their own. After they turned
young
men,
Triloki
married
Smt.
Subhawati and Kapildev Smt. Dhanmati. At
that point of time, Sadavriksha was in need
of money for Smt. Lalita's daughter's
wedding and medical expenses for the
family. For the purpose, he had taken a loan
that he could not repay. It was on that
account that he sold off the suit property to
his daughters-in-law, Smt. Subhawati and
Smt. Dhanmati by the sale deed impugned.
The plaintiffs had knowledge of the sale
deed since the date it was executed and
registered. The sale deed was executed by
Sadavriksha with the consent of the
plaintiffs, and, therefore, the suit is barred
by estoppel. The impugned sale deed was
870 INDIAN LAW REPORTS ALLAHABAD SERIES
executed by Sadavriksha in favour of Smt.
Subhawati and Smt. Dhanmati after receipt
of the due sale consideration, where no
fraud or deceit is involved. Sadavriksha
was a bhumidhar with transferable rights.
He had a right to transfer his bhumidhari.
The defendants are in possession of the suit
property in accordance with the impugned
sale deed, whereas the plaintiffs are not.
The suit was, therefore, demanded to be
dismissed.

9. Upon the pleadings of parties, the
following issues were framed by the Trial
Court (translated into English from Hindi):

(i) Whether the impugned sale deed is
liable to be cancelled on the grounds
enumerated in the plaint?

(iv) Whether the suit is undervalued?

(v) Whether the court-fee paid is
insufficient?

(vi) To what relief is the plaintiffs
entitled?

10. Parties led oral and documentary
evidence in support of their case, which
need not be recapitulated here. It is listed in
the judgment of the Trial Court.

11. The Trial Court after a full trial
dismissed the suit, holding that the
impugned sale deed on the grounds raised
was not liable to be cancelled.

12. Aggrieved by the Trial Court's
decree, the plaintiffs appealed to the
District Judge of Deoria. There, the appeal
was registered on the file of the learned
District Judge as Civil Appeal No. 3 of
2013. Some nine grounds were raised in the
appeal.

13. Pending the appeal, the plaintiffs
made an application for amendment before
the Additional District Judge, Court No.5,
Deoria, seeking amendment by adding the
following pleas to the existing Paragraph
No. 6 of the plaint:

"क्ो नक आराजी िम्बर 12 रकबा 0.247
हे0 व आराजी िम्बर 381 व रकबा 0.0(0) हे०
एवम् आराजी िम्बर 233 रकबा 0.356 हे० मे
हम वानदिी के श्वसुर िे 126 सी०आर०पी०सी०
वाद िं०- 258/ 85 मे पाररत आदेश नदिांक-
12.06.86 के पाररत होिे के बाद उपरोक्त
आराजी मे हम वानदिी को जीनवका निवामह हेतु
दे नदया तथा हम वानदिी एवम उसकी पुत्री उक्त
आराजीयात से अपिा जीवि निवामह करती चली
आ रही है उपरोक्त आरानजयात पर हम वानदिी
के
भरणपोिण
का
भार
है।
उपरोक्त
आरानजयात पर हम वानदिी कानबज दन्धखल
चली आ रही है बैिामा नदिांक - 04.02.05 या
हम वानदिी के भरणपोिण को वंनचत करिे की
नियत से नकया गया बैिामा नदिांक- 04.02.05
मात्र इसी आधार पर खाररज होिे योग्य है।"

14. In addition, the following relief
numbered as 1(a) was sought to be added:

"यह नक वानदिी के ललीता के पक्ष मे
प्रनतवादीगण के नवरूद्व इस प्रकार की नडकी पाररत
करके यह घोनित कर नदया जावे नक आराजी िम्बर
102 व रकबा 0.247 हे0 व आराजी िम्बर 381 व
रकबा 0.101 हे0 एवम आराजी िम्बर 233 व रकबा
0.356 हे0 में 1/2 भाग न्धस्थत मौजा नदबडा सोमाली
तथा मईल परगिा स०म० नजला देवररया
मरहमवानदिी के भरणपोिण का पात्र है।"

15. The Appellate Court upon hearing
the plaintiffs proceeded to allow the
application seeking amendment to the
plaint vide an order dated 12.12.2018. The
defendants are aggrieved by this order,
which they have impugned through the
instant petition.
12 All. Smt. Subhawati & Ors. Vs. Smt. Lalita & Anr.
871

16. Heard Mr. Rajesh Kumar Tiwari,
learned Counsel for the defendants and Mr.
Mahabir Yadav, Advocate holding brief of
Mr. Ram Autar, learned Counsel for the
plaintiffs.

17. Upon a perusal of the plaint and
the amendment sought, what appears from
the record is that the plaintiffs are seeking
to introduce a new cause of action and a
completely different relief to cloud the
defendants' title that they have received
under the impugned sale deed. The
cancellation that the plaintiffs have sought
is on numerous grounds, which include
Sadavriksha being defrauded into executing
the sale deed and the sale deed being one
executed without right, or at least, in excess
of the vendor's right. The cause of action in
the suit originally pleaded is one that
impeaches the validity of the sale deed on
grounds of fraud and misrepresentation said
to be practiced by Triloki and Kapildev and
their wives, Smt. Subhawati and Smt.
Dhanmati, leading Sadavriksha to execute
the conveyance or the lack of title
authorizing him to alienate the entire suit
property. There is not a whisper in the
plaintiffs' case originally pleaded about the
suit property being subject to a charge,
under the maintenance order passed in
favour
of
Smt.
Lalita
and
against
Sadavriksha. Now, through the amendment,
the plaintiffs say that the suit property is
subject to a charge for the amount of
maintenance due from Sadavriksha under
the maintenance order passed by the Court.
It is for the said purpose that a declaration
to the said effect, apart from amendments
to the pleadings, has been sought.

18. Now, the fact that there was a
maintenance order in existence, if that be so,
was well within the knowledge of the plaintiffs
when the suit was instituted and during the
entire course of trial. At no stage of the trial,
much less at the time of institution of the suit,
the plea was taken or a case set up that the suit
property to the extent of a half share share was
subject to a charge for the amount due to Smt.
Lalita, under the maintenance order passed
against Sadavriksha. This case was not
introduced, assuming that it was omitted by
oversight when the suit was instituted, early
into the commencement of proceedings before
the Trial Court. The amendment has been
sought in appeal after the suit has been tried
and decided. The amendment is not about a
fact which can remotely be said to be not
within the plaintiffs' knowledge, when the suit
was instituted or trial pending. It is an
amendment that has been sought to be
belatedly introduced at the stage of appeal,
with no justification at all for the delay also. It
introduces a new case altogether, that is to say,
the case of the suit property being subject to a
charge arising out of the maintenance order in
favour of Smt. Lalita, one of the two plaintiffs.
By not pleading the right based on the alleged
charge in the plaint or soon after the suit was
instituted, the plaintiffs must be taken to have
waived right, if at all they had one, based on
the case of a charge. It cannot be permitted to
be introduced at this belated stage, pleading a
new case altogether, different from the one set
up in the plaint.

19. The grounds on which an
amendment can be refused, include a case
where entirely a new case is set up,
different from the one originally pleaded.

20. This apart, post amendment of
Order VI Rule 17 CPC by Act No. 22 of
2002, the scope for amendment after trial,
has been curtailed. The amended provisions
of Order VI Rule 17 of the Code read:

"17. Amendment of pleadings.-The
Court may at any stage of the proceedings
872 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

21. Now, in the case of an amendment
brought after commencement of trial by a
party, the Code empowers the Court and
obliges it as well to require the party
applying for amendment to show that
despite due diligence, the party could not
have sought the amendment before the trial
commenced. Here, is a case where the suit
has run its full course and the plaintiffs
have lost before the Court of first instance.
They
are
now
in
appeal.
By
the
amendment, they seek to bring in facts, a
cause of action and relief, that were well
within their knowledge throughout. This
Court must remark that at the appellate
stage,
the
Court
cannot
grant
an
amendment for the asking of a party. Where
rights have already crystallized under one
judgment, adding a new case or even facts
by amendment, is unsettling a settled
position, where rights have already been
determined. Normally, the decision in an
appeal is to be confined to the correctness
of the judgment of the Trial Court on the
pleaded case of parties and the evidence
led. An amendment in appeal is a rarity.

22. Here, the Appellate Court has
granted it by a casually worded order,
which hardly addresses the requirement of
Order VI Rule 17 CPC, post the 2002
Amendment. Reference, in this connection
may be made to the decision of this Court
in Rajendra Prasad v. Additional District
Judge/Fast Track Court-I, Gonda and
another, 2015 SCC OnLine All 8100,
where it has been held:

"17. The Hon'ble Apex Court had an
occasion to consider the matter in issue in
Rajkumar Gurawara (dead) through LRs. v.
S.K. Sarwagi and Co. Pvt. Ltd., [2008 (5)
CTC 253.] wherein, the Hon'ble Apex
Court has held as follows:

"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 1.7.2002
makes it clear that after the commencement
of the trial, no Application for amendment
shall be allowed. However, if the parties to
the proceedings able to satisfy the Court
that in spite of due diligence could not raise
the issue before the commencement of trial
and the Court satisfies their explanation,
amendment can be allowed even after
commencement of the trial."

18. Again in Vidyabai v. Padmalatha
[(2009) 2 SCC 409.] the Hon'ble Apex
Court has held as follows:

"Order VI, Rule 17, C.P.C. is couched
in
a
mandatory
form.
Unless
the
jurisdictional fact, as envisaged in the
proviso to Order VI, Rule 17, C.P.C. is
found to be existing, the Court will have no
jurisdiction at all to allow the amendment
of the plaint. The Court's jurisdiction to
allow such an application is taken away
unless the conditions precedent therefor are
satisfied viz. it must come to a conclusion
12 All. Senior Suptt. Dept. of Post, Moradabad Division & Ors. Vs. Bundu & Anr.
873
that in spite of due diligence the parties
could not have raised the matter before the
commencement of the trial. From the order
passed by the Trial Judge, it is evident that
the respondents had not been able to fulfil
the said precondition."

19. It is true that an amendment can be
permitted
to
avoid,
multiplicity
of
proceedings. But at the same time, Courts
have held that an amendment cannot be
allowed, if it causes prejudice to the right of
the party against whom an amendment is
sought for. It is also a settled law, that the
scope of the Appeal late Court is to test the
correctness of the judgment under the appeal
and any benefit or vested right, on account
of declaration of the rights, inter se be tween
the parties to the lis, by the Trial Court,
cannot be allowed to be taken away by
allowing an amendment to the pleadings, at
the appellate stage, when the party seeking
an amendment could have brought in such
amendment, even at the time of the
commencement of the trial. An amendment
admitting to wipe out the pleadings and
admissions of tine party, already considered
by the Trial Court, for the purpose of
arriving at a decision, in the suit, cannot be
allowed to be substituted with a new case, at
the appellate stage, which would certainly
cause serious prejudice to the party, against
whom the amendment is sought for. The
effect of an admission in earlier pleading
shall not be permitted to be taken away, by
any proposed amendment."

23. There is also another reason, which
ought to have weighed with the Appellate
Court in the opinion of this Court. It is true
that normally amendments are to be granted,
if sought promptly or even with some delay.
An amendment, that is mala fide or not made
in good faith, should never be granted. Here,
the amendment, in the opinion of this Court,
squarely falls into that category. There is not
the slightest of reason for the plaintiffs to
have waited until the stage of appeal to seek
this amendment and introduce a case, of
which they had knowledge all along. The said
fact by itself betrays lack of bona fides on the
plaintiffs' part.

24. So far as the impugned order goes,
it has already been remarked that it is an
entirely cryptic disposition of the amendment
application and the Appellate Court hardly
seems to have bestowed any consideration to
the plea before it, which has been casually
allowed.

25. In the circumstances, the impugned
order in the considered opinion of this Court,
cannot be sustained.

26. This petition succeeds and is
allowed.
The
impugned
order
dated
12.12.2018 passed by the Additional District
Judge, Court No.5, Deoria in Civil Appeal
No. 3 of 2013 is hereby set aside and the
amendment
application
rejected.
The
Appellate Court shall now proceed with the
hearing of the appeal expeditiously, fixing at
least one date of hearing every week
considering that the appeal is of the year
2013. The parties shall appear before the
Appellate Court on 15.12.2022.
----------
(2022) 12 ILRA 873
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Matter Under Article 227 No. 1436 of 2015

Senior Suptt. Dept. of Post, Moradabad
Division & Ors. ...Petitioners
Versus
Bundu & Anr. ...Respondents