Mohinder Kumar Mehra vs Roop Rani Mehra

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.19977 OF 2017 (Arising out of SLP (C) No. 26695/2017)

MOHINDER KUMAR MEHRA …APPELLANT

VERSUS

ROOP RANI MEHRA & ORS. …RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

1. This appeal has been filed against the judgment of

Delhi High Court dated 02.08.2017 by which judgment,

the Writ Petition filed by the appellant challenging

the order of Additional District Judge dismissing the

application of the plaintiff under Order VI Rule 17

of the Civil Procedure Code (hereinafter referred to

as “C.P.C.”) has been dismissed. Facts in brief

necessary to be noted for deciding the appeal are:-

The appellant and respondent No.5 are sons of Signature Not Verified Digitally signed by ASHWANI KUMAR respondent No.1. Respondent Nos. 2, 3 and 4 are Date: 2017.12.11 18:06:31 IST Reason:

wife, son and daughter of another brother of

appellant. The appellant’s father Late Shri O.P. 2

Mehra alongwith his wife and three minor sons came to

Delhi from Lahore after Partition. Shri O.P. Mehra

died in 1951. The respondent No.1 and her sons were

held entitled to compensation under Order of

Settlement Commissioner, New Delhi dated 14.08.1956.

The respondent No. 1 was declared as highest bidder

in a public auction for a House No. D-4, Lajpat

Nagar, area measuring 300 sq. yds. which amount was

adjusted from the claim to which the respondent No.1

and her sons were held entitled.

Another property was also allotted in the name of

respondent No.1 of area measuring 200 sq. yds. at

G-11, Nizamuddin, New Delhi. The property G-11,

Nizamuddin was sold by respondent No.1 in the year

2000. On 04.11.2009, the appellant filed a Suit No.

2082 of 2009 against the respondents seeking

partition of the suit property described in Appendix

A. In Appendix A, only property mentioned was Plot

No.D-4, Lajpat Nagar, Part-II, New Delhi.

Written statement was filed by the respondent and

on 17.05.2010, issues were framed by the Court.

10.08.2010 was fixed for recording the evidence of

the plaintiff. The plaintiff prayed for time for 3

producing evidence. On 17.01.2011, plaintiff filed an

application under Order VI Rule 17 praying for

amendment of the plaint. By the application

plaintiff sought to add certain pleadings and a

prayer claiming share in the sale proceeds received

by defendant No.1 from sale of the property of

Nizamuddin. Application filed by the plaintiff was

objected by the defendants by filing a reply. It was

pleaded that several opportunities were given to the

plaintiff to lead evidence and last opportunity was

given on 08.12.2010 to file his evidence by

28.01.2011. It was further pleaded that in the sale

document of Nizamuddin property, plaintiff himself

was a witness. The relief which is sought to be

amended is barred by time and is altogether a

separate cause of action. Plaintiff filed a rejoinder

in which it was stated that plaintiff came to know

that plaintiff had undivided share in the property at

Nizamuddin only in November, 2010. He further stated

that he informed all the facts to his earlier counsel

but in the plaint the mention of Nizamuddin property

was not made by earlier counsel and while preparing

for evidence in the suit, the fact was noticed by the 4

plaintiff only in November, 2010 and hence

application for amendment has been filed. The Court

passed on order on 26.07.2011 granting the plaintiff

four week’s time as a last opportunity to file the

examination-in-chief of his witnesses subject to

payment of Rs.5,000/-, with regard to I.A. No.1001 of

2011, it was stated “Needless to say in Case I.A.

No.1001/2011 is allowed, appropriate orders for

evidence of the plaintiff would be made.” Parties led

evidence and suit was fixed for final disposal. On

14.02.2014, an order was passed directing that

amendment application shall be considered at the time

of final hearing of the suit. Plaintiff filed an

application for amendment of issues, which was

rejected by the High Court on 09.02.2015. The

plaintiff filed a FAO (OS) No.196 of 2015, in which

Division Bench of the High Court by order dated

28.04.2015 directed the learned Single Judge to

decide the amendment application I.A. No. 1001 of

2011. In the meantime on account of pecuniary

jurisdiction of the case, the suit was transferred to

the Court of Additional District Judge, Saket. The

Additional District Judge took up the amendment 5

application and vide order dated 24.10.2016 rejected

the amendment application. The trial court took the

view that the suit for recovery of money of his share

could have been filed by plaintiff within three years

from the date of sale. The trial court held that the

amendment sought is barred by time, hence the

application was rejected.

A Writ Petition under Article 227 was filed by

the plaintiff in the High Court challenging the order

dated 24.10.2016, which has been dismissed by the

High Court by the impugned judgment, against which

this appeal has been filed.

2. We have heard Ms. Shobha, learned counsel for the

appellant. Shri S.B. Upadhyay, learned counsel was

heard for respondent No.1, Shri Rana S. Biswas and

Ms. Sharmila Upadhyay, has been heard for respondent

No.5. Learned counsel for respondent No.5 having

adopted the submissions raised on behalf of

respondent No.1, we shall hereinafter refer to the

submissions of respondent No.1 and respondent No.5 as

submissions on behalf of respondents. 6

3. Learned counsel for the appellant in support of the

appeal contends that the application filed by the

plaintiff for amendment under Order VI Rule 17 was

not barred by time. Relying on Article 110 of the

Limitation Act, 1963, learned counsel submits that

the limitation for enforcing a right to share in a

joint family property is twelve years, hence the

claim was not barred by time. The High Court on one

hand refrained itself from saying anything on the

issue of limitation on Article 110 of the Limitation

Act and on the other hand has given an approval to

the view of the learned Additional District Judge

that suit is barred by time. The High Court has

failed to appreciate that parties have already led

evidence relating to proposed amendment which fact

was recorded by the High Court on 14.02.2014 and only

a formal order of allowing amendment was required,

which would not have caused any prejudice to the

defendant. The High Court on technical grounds has

rejected the amendment application whereas it is well

settled that amendment applications are to be

liberally considered and unless any prejudice is

shown to be caused to the defendant, the applications 7

are allowed.

4. Learned counsel for the respondent refuting the

submission of the appellant contends that amendment

application filed by the appellant could not have

been allowed in view of Proviso to Order VI Rule 17

C.P.C. It is submitted that trial in the suit has

already commenced and plaintiff failed to show that

in spite of due diligence, he could not raise the

matter earlier, hence the trial court has rightly

rejected the amendment application. It is further

stated that claim was barred by time. The amendment

sought to be made related to claim for recovery of

money for which limitation is only three years, as

has been rightly held by the trial court. There is no

substance in the case of the plaintiff that due to

mistake of earlier counsel, the Nizamuddin property

could not be included in the plaint. Plaintiff

himself has verified the plaint and cannot be allowed

to take any such plea. The Proviso to Order VI Rule

17 does not permit any such amendment as now prayed

by plaintiff. It is submitted that there was no due

diligence at all on the part of the

appellant-plaintiff so as to enable the Court to 8

allow the amendment exercising the power reserved to

the Court under Proviso. The appellant in his

repllication has stated that Lajpat Nagar property

was the one and the only joint family property. By

allowing the amendment, the very nature of the suit

shall be changed, causing great prejudice to

respondent No.1. Learned counsel for the respondents

have also raised submissions regarding the merits of

the claim of the plaintiff.

5. We have considered the submissions of the learned

counsel for the parties and have perused the records.

6. Order VI Rule 17 of C.P.C. as it now exists is as

follows:-

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 par-

ties:

Provided that no application for amendment shall be allowed after the trial has com- menced, unless the court comes to the conclu- sion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

7. By Amendment Act 46 of 1999 with a view to shortage 9

litigation and speed of the trial of the civil suits,

Rule 17 of Order VI was omitted, which provision was

restored by Amendment Act 22 of 2002 with a rider in

the shape of the proviso limiting the power of

amendment to a considerable extent. The object of

newly inserted Rule 17 is to control filing of

application for amending the pleading subsequent to

commencement of trial. Not permitting amendment

subsequent to commencement of the trial is with the

object that when evidence is led on pleadings in a

case, no new case be allowed to set up by amendments.

The proviso, however, contains an exception by

reserving right of the Court to grant amendment even

after commencement of the trial, when it is shown

that in spite of diligence, the said pleas could not

be taken earlier. The object for adding proviso is

to curtail delay and expedite adjudication of the

cases. This Court in Salem Advocate Bar

Association, T.N. Vs. Union of India, (2005) 6 SCC

344 has noted the object of Rule 17 in Para 26 which

is to the following effect:

“26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again 10

been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if applica- tion is filed after commencement of trial, it has to be shown that in spite of due dili- gence, such amendment could not have been sought earlier. The object is to prevent friv- olous applications which are filed to delay the trial. There is no illegality in the pro- vision.”

8. The judgment on which much reliance has been placed

by learned counsel for the appellant is Rajesh Kumar

Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC

385. This Court had occasion to consider and

interpret Order VI Rule 17 in Paragraphs 15 and 16,

in which following has been held:-

“15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for de- termining the real question in controversy be- tween the parties provided it does not cause injustice or prejudice to the other side.

16. Order 6 Rule 17 consists of two parts.

Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose 11

of determining the real question in contro- versy between the parties.”

9. Although Order VI Rule 17 permits amendment in the

pleadings “at any stage of the proceedings”, but a

limitation has been engrafted by means of Proviso to

the fact that no application for amendment shall be

allowed after the trial is commenced. Reserving the

Court’s jurisdiction to order for permitting the

party to amend pleading on being satisfied that in

spite of due diligence the parties could not have

raised the matter before the commencement of trial.

In a suit when trial commences? Order XVIII of the

C.P.C. deal with “Hearing of the Suit and Examination

of Witnesses”. Issues are framed under Order XIV. At

the first hearing of the suit, the Court after

reading the plaint and written statement and after

examination under Rule 1 of Order XIV is to frame

issues. Order XV deals with “Disposal of the Suit at

the first hearing”, when it appears that the parties

are not in issue of any question of law or a fact.

After issues are framed and case is fixed for hearing

and the party having right to begin is to produce his

evidence, the trial of suit commences. This Court in 12 Vidyabai & Ors. Vs. Padmalatha & Anr., (2009) 2 SCC

409 held that filing of an affidavit in lieu of

examination-in-chief of the witnesses amounts to

commencement of proceedings. In Paragraph 11 of the

judgment, following has been held:-

“11. From the order passed by the learned trial Judge, it is evident that the respon- dents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the pro- ceeding. Filing of an affidavit in lieu of ex- amination-in-chief of the witness, in our opinion, would amount to “commencement of pro- ceeding”.”

10.Coming to the facts of the present case, it is clear

from the record that issues were framed on 17.05.2010

and case was fixed for recording of evidence of

plaintiff on 10.08.2010. Plaintiff did not produce

the evidence and took adjournment and in the meantime

filed an application under Order VI Rule 16 or 17 on

17.01.2011. Thereafter the Court on 26.07.2011 has

granted four week’s time as the last opportunity to

file the examination-in-chief. It is useful to quote

Paragraph 4 of the Order, which is to the following 13

effect:-

4. In view of the above, it is directed as follows:-

(i) Having regard to the delay which has ensued, subject to the plaintiff paying costs of Rs.5,000/- each to the contesting defendant No.1 and 5 within a period of one week, the plaintiff is permitted four weeks time as a last opportunity to file the examination-in-chief of his witnesses on affidavit.

(ii) The matter shall be listed before the Joint Registrar for recording of

plaintiffs evidence on 29 August, 2011.

th

(iii) The case shall be listed before court for direction on 18th January, 2012.

(iv) Needless to say in case IA No. 1001/2011 is allowed, appropriate orders for evidence of the plaintiff would be made.”

11.Thus technically trial commenced when the date was

fixed for leading evidence by the plaintiff but

actually the amendment application was filed before

the evidence was led by the plaintiff. The parties

led evidence after the amendment application was

filed. In this context, it is necessary to notice the

order of the High Court dated 14.02.2014, which

records that evidence of both the parties have been

concluded. Most important fact to be noticed in the 14

order is that the Court recorded the statement of

plaintiff’s counsel that parties have led evidence in

view of the amendment sought in the plaint. Order

dated 14.02.2014 is to the following effect:-

“The evidence of both the parties has been concluded. The matter has been listed for final disposal. Learned counsel for the plaintiff has pointed out the order dated 26th July, 2011 wherein observation was made that in case I.A. No. 1001/2011 under Order VI Rule 17 CPC for amendment of the plaint is allowed, appropriate order for evidence of the plaintiff would be made. As a matter of fact, plaintiffs counsel stated that the parties have also led evidence in view of amendment sought in the plaint and the same covered in the evidence produced by the parties. The defendants, however, alleged that the said amendment was unnecessary and was opposed by the defendants and issue involved in the said circumstances be considered at the time of final hearing of suit as defendant No.1 is more than 85 years old lady, the suit itself be decided.

List this matter in the category of Short cause on 22 May, 2014……”

12.By same order dated 14.02.2014, the Court directed

amendment application be taken at the time of final

hearing. As noticed above, when plaintiff sought for

framing additional issues which application was

rejected, the matter was taken before the Division

Bench and the Division Bench ultimately has directed 15

the learned Single Judge to consider the amendment

application. Subsequently, the amendment application

was rejected on 24.10.2016.

13.The Proviso to Order VI Rule 17 prohibited

entertainment of amendment application after

commencement of the trial with the object and purpose

that once parties proceed with the leading of

evidence, no new pleading be permitted to be

introduced. The present is a case where actually

before parties could led evidence, the amendment

application has been filed and from the order dated

14.02.2014, it is clear that the plaintiff’s case is

that parties has led evidence even on the amended

pleadings and plaintiff’s cases was that in view of

the fact that the parties led evidence on amended

pleadings, the allowing the amendment was mere

formality. The defendant in no manner can be said to

be prejudiced by the amendments since plaintiff led

his evidence on amended pleadings also as claimed by

him.

14.This Court in Chander Kanta Bansal Vs. Rajinder 16

Singh Anand, (2008) 5 SCC 117 has noted the object

and purpose of amendment made in 2002. In Para 13,

following has been held:-

“13. The entire object of the said amendment is to stall filing of applications for amend- ing a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other’s case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out enter- taining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.”

15.Looking to the object and purpose by which limitation

was put on permitting amendment of the pleadings, in

substance, in the present case no prejudice can be

said to have caused to the defendant since the

evidence was led subsequent to the filing of the

amendment application. We thus are of the view that

looking to the purpose and object of the Proviso,

present was a case where it cannot be held that

amendment application filed by the plaintiff could

not be considered due to bar of the Proviso. 17

16.Now, we come to the one of the main reason given by

the trial court in rejecting the application that the

claim was barred by limitation. The Nizamuddin

property, which property was sought to be added in

the suit for partition was a property, which was sold

by respondent No.1 in the year 2000, in which the

plaintiff was also one of the witnesses. The trial

court took the view that the suit was simplicitor for

recovery of money for which limitation is only three

years from the date of sale and not twelve years as

claimed by the applicant. With regard to the

limitation, the plaintiff-appellant relies on Article

110 of the Limitation Act, which is to the following

effect:-

Article Description of Period of Time from No. Suitt Limitation which period begins to run 110 By a person Twelve When the excluded from a Years exclusion joint family becomes property to known to enforce a right the to share therein. plaintiff

17.Present is not a case of simply recovery of money.

Plaintiff’s claim is to enforce a right to share in 18

the Nizamuddin property, which was sold in the year

2000 and according to plaintiff, the limitation is

twelve years as per Article 110. The High Court has

also noted the order of Additional District Judge

holding that claim is barred by time. The High Court

refrained from expressing any final opinion on the

question of limitation but observed that the view

taken by the Additional District Judge is correct.

It is relevant to refer to Para 28 of the judgment,

which is to the following effect:-

“The learned Additional District Judge in the impugned order has also accepted the contention of the counsel for the respondents/defendants of the relief sought to be added by way of amendment being barred by time and Articles 106 and 110 of the Schedule to the Limitation Act being not applicable. The counsel for the petitioner/plaintiff has been unable to show any precedent that a claim for a definite share in the sale proceeds of, a property would be governed by Articles 106 and Article 110 supra. However, the same being in the nature of entering into the merits of the amendment, I refrain from dealing with the said aspect, though the view taken by the learned Additional District Judge appears to be reasonable and plausible.”

18.In the facts of the present case, final determination

as to whether the claim could be held to be barred by

time could have been decided only after considering 19

the evidence led by the parties. Whether plaintiff

had any share in the property, which was sold in the

year 2000 and what was the nature of his share and

whether he can claim recovery of his share within

twelve years were all the questions on which final

adjudication could have been made after considering

the evidence and at the stage of considering the

amendment in the facts of the present case, it was

too early to come to a conclusion that limitation was

only three years and not twelve years as claimed by

the plaintiff. The High Court on the one hand

refrained from expressing any opinion and on the

other hand has expressed his agreement with the view

taken by the Additional District Judge rejecting the

application as barred by time.

19.While considering the prayer of amendment of the

pleadings by a party, this Court in the case of

Mahila Ramkali Devi & Ors. Vs. Nandram (Dead)

through Legal Representatives & Ors., (2015) 13 SCC

132 has again reiterated the basic principles, which

are to be kept in mind while considering such

applications in Paragrpahs 20, 21 and 22, which is 20

quoted as below:-

“20. It is well settled that rules of proce- dure are intended to be a handmaid to the ad- ministration of justice. A party cannot be re- fused just relief merely because of some mis- take, negligence, inadvertence or even infrac- tion of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.

21. In our view, since the appellant sought amendment in Para 3 of the original plaint, the High Court ought not to have rejected the application.

22. In Jai Jai Ram Manohar Lal v. National Building Material Supply3, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or techni-

cal limitations.”

20.Although, learned counsel for the parties in their

submissions have raised various submissions on the

merits of the claim of the parties, which need no

consideration by us since the only issue which has to

be considered is as to whether the amendment

application filed by the plaintiff deserves to be

allowed or not. We make it clear that we have neither

entered into merits of the claim nor have expressed 21

any opinion on the merits of the claim of either

party and it is for the trial court to consider the

issues on merits while deciding the suit.

21.Taking into overall consideration of the facts of the

present case and specially the fact that evidence by

the parties was led after the filing of the amendment

application, we are of the view that justice could

have been served in allowing the amendment

application. We thus allow the appeal and set aside

the order of the High Court as well as the order of

the Additional District Judge. The amendment

application I.A. No. 1001 of 2011 stand allowed.

Both the parties have led their evidences and case

has already been fixed for hearing, however, to avoid

any prejudice to the parties, justice will be served

in giving a limited opportunity to the parties to

lead additional evidence, if they so desire.

22.We thus direct that the parties may file this order

before the trial court within two weeks from today,

on receipt of the order, the trial court shall

consider on framing of additional issue, if necessary 22

and shall thereafter grant opportunity to the parties

to lead additional evidence, if any. The entire

exercise shall be completed within three months and

thereafter suit be decided finally. The parties

shall bear their own costs. We make it clear that we

have not expressed any opinion on merits of the case

including on the question of applicability of Article

110 of the Limitation Act and all the issues shall be

decided on the basis of materials on record without

being influenced by any observation made by us.

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI, ( ASHOK BHUSHAN ) DECEMBER 11, 2017.