Madhya Pradesh HC: Whether District Judge in Miscellaneous civil appeal can entertain application for amendment of plaint?

The appeal before the learned District Judge was one under Order 43, Rule 1 (r), C. P. C. and not a regular appeal. Jurisdiction of the appellate Court while deciding appeal of such a character extends only to examine the validity of an order enumerated in Clause (r) of Order 43, Rule 1, C. P. C., which runs as under :

"An appeal shall lie from the following orders under the provisions of Section 104, namely :--

(r) an order under Rule 1, Rule 2, (Rule 2-A), Rule 4 or Rule 10 of Order XXXIX."

Accordingly, the scope of such appeal is limited. It extends to adjudication of challenge to an order of grant or refusal of interim injunction as envisaged by Order 43, Rule 1 (r), C. P. C. As such, the learned District Judge has no seisin over the suit as such. He was seized of proceedings for issuance of a temporary injunction in the suit and not of the suit itself. This aspect of the law appears to have been overlooked by the learned District Judge.

As a logical corollary flowing from the aforesaid position of law, it has to be concluded that the learned District Judge had no jurisdiction to entertain the application for amendment of the plaint submitted before him by the plaintiff-applicant herein. If the applicant herein (plaintiff) chose to submit the application in the appeal preferred by the defendants before the learned District Judge, only courses which would have been adopted by the learned District Judge were (a) to direct the plaintiff to submit the amendment application before the trial Court; and (b) to forward it to the trial Court for decision in accordance with law after deciding the appeal on merits. However, he had no jurisdiction to decide the application for amendment of the plaint on its merits.

 In spite of this, the scope of the appeal under Order 43, Rule 1 (r) is restricted as discussed above to examine the propriety and/or legality of order passed under the various rules of Order 39 referred therein. A distinction has to be made between the scope of regular appeal and a miscellaneous appeal under the aforesaid provision. While deciding the appeal of former character the appellate Court has, on the theory that appeal is continuation of suit, power to allow amendment in the pleadings, but in an appeal of the later type the appellate Court has jurisdiction only to adjudicate upon the correctness or otherwise of order refusing or granting an interim injunction. The position of trial Court in such a situation appears to be different, as the trial Court is in seisin of the suit as well as of application for issuance of a temporary injunction made in the suit. The powers exercisable by an appellate Court while hearing appeals preferred under Order 43, Rule 1 (r) cannot be regarded to extend to allowing amendment of the plaint, as he is not in seisin of the suit as such. 

In the present situation, the word 'proceeding' connotes merely an application for issuance of a temporary injunction and/or its reply. Accordingly, where the plaintiff-applicant moves an application for amendment of the application for issuance of temporary injunction, the appellate Court may be regarded to have jurisdiction to decide it.

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Civil Revn. No. 272 of 1979

Decided On: 25.02.1981

Dhundasingh Vs. Leeladhar and Ors.

Hon'ble Judges/Coram:

H.G. Mishra, J.

Citation: 1982 AIR MP 14,1981 SCC ONLINE MP, MANU/MP/0005/1982

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Whether court should see merits of amendment at time of deciding application for amendment?

This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company (2003) 3 SCC 524, this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO .19400 OF 2017
[Arising out of SLP (C) No. 8858 of 2017]

RAJ KUMAR BHATIA V SUBHASH CHANDER BHATIA 

Dated:December 15, 2017.

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Whether one defendant can object to amendment application filed by co-defendant?

The foremost contention that was raised by the learned Counsel for the respondent, is that there is no reason or cause for the defendant No. 1 to raise the objection to the amendment sought to be made by the co-defendant. He submits that it is the plaintiffs' objection alone, which needs to be considered and not of the co-defendant. He also submits that the dispute could be only in between the plaintiffs and the defendants and that alone needs to be resolved and not the dispute between the two sets of the defendants. He further submits that the plaintiffs gave no objection to such amendment being allowed and, therefore, there was nothing wrong when the amendment was allowed. While considering the application, the Court has to see if such amendment is allowed, any prejudice will be caused to the plaintiffs and whether any of the rights of the plaintiffs, would be affected or not. There is no doubt that in the routine course, the Courts are required to decide the question as to the granting of the application for amendment vis-a-vis the plaintiff and the defendant alone. I do not, however, agree with the submission of the learned Counsel Shri Sharma that the Court need not consider any of the objection of the co-defendant/ the defendant No. 1 in the present case. Apart from this case, the Court would certainly be required to decide a dispute between the two defendants when their interest could be adverse or become adverse. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants. Yet another reason why such an objection of the co-defendant, needed to be heard, is whether the other defendant was withdrawing any admission to his detriment. If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. An admission has been defined in Section 17 of the Evidence Act as follows:

Section 17- Admission - An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Not only Section 17 here is important, but to decide this question we need to look into two more provisions. Those provisions are Section 18 of the Indian Evidence Act as well as Rule 1 of Order 12 of Civil Procedure Code. What Section 18 says, is that a statement by a person interested in the subject matter, is an admission. It says if a person having proprietary or pecuniary interest in the subject matter of proceeding gives admissions, all admissions if they are made during continuance of interest of the person making the statements, are admissions. In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No. 1 claims that he had purchased the suit property in the name of the defendant No. 3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No. 1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are "any other party" and not necessarily an adverse party. It could be either the plaintiff or the defendant also.

The above discussion clearly goes to show that the codefendant does have a right to challenge or oppose the amendment sought to be made by the other defendants.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition Nos. 691 of 2008 and 8 of 2009

Decided On: 18.03.2009

 Shri Armando Pereira Vs. Shri Jude D'Souza S/o John D'Souza and Ors.

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Whether application for amendment is subject to period of limitation?

There is no specific provision under which a period of limitation is prescribed for an interlocutory application for amendment of pleadings under Order 6, Rule 17. Article 137 can have no application to such an application. In Laxmidas Dayabhai Kabrawala vs. Nanabhai Chunilal Kabrawala, MANU/SC/0019/1963 : AIR 1964 SC 11 the issue before the Supreme Court related to the propriety of an order of the Single Judge of the High Court directing that the counter claim filed by the respondent be treated as a plaint in a cross suit and remanding the case for trial on that basis. For the purposes of the issue which is involved in the present case, it would be material to advert to the following observations of the Supreme Court:

It is, no doubt, true that, save in exceptional cases, leave to amend under O. 6, R. 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh relief's sought by way of amendment. Where for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading.

These observations have been referred to in a subsequent decision of the Supreme Court in Revajeetu Builders and Developers vs. Narayanswami and Sons, MANU/SC/1724/2009 : (2009) 10 SCC 84 at para 51 pages 98-99.

11. In this view of the matter, we are of the view that the learned Single Judge was in error in coming to the conclusion that the application that was filed by the appellants for amendment of the Written Statement attracted the provisions of Article 137 of the Limitation Act, 1963. Article 137 of the Limitation Act, 1963 does not apply to an interlocutory application made during the pendency of the suit for amendment of the Written Statement.

IN THE HIGH COURT OF BOMBAY

Appeal No. 200 of 2012 in Chamber Summons No. 106 of 2010 in Suit No. 2256 of 1998 with Crol No. 4 of 2012

Decided On: 27.02.2013

 Vijay Agarwal and Others Vs.  Harinarayan G. Bajaj and Others

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and A.A. Sayed, JJ.

Citation: 2013(4) MHLJ 298

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Whether court should decide amendment application when application for rejection of plaint is pending?

 Lastly, it is contended by learned counsel for the petitioner that the trial Court had to first consider the defendant's application under Order 7 Rule 11(d) of the Code or at any rate, simultaneously with the plaintiff's application for amendment under Order 6 Rule 17 of the Code. Even that is not correct. As held by our Court in the case of Pramod vs. Shantaram, reported in 2017(3) Mh.L.J. 223, whenever an application for amendment is filed in the face of an application by the opponent for rejection of the plaint, the former application would have to be considered first on its merits before considering the application for rejection of the plaint. Learned counsel submits that unlike the present case the case of Pramod Konge (supra) was under Order 7 Rule 11(a) of the Code and not under Order 7 Rule 11(d) of the Code. That makes no difference. Whether the application is filed under Rule 11(a) or under Rule 11(d) of Rule 7 of the Code, same principles would apply. It would not be procedurally correct to decide the application for rejection of the plaint first, since even if the defendant were right and the plaint were to be rejected, it would still be permissible for the plaintiff to file a fresh suit including the subject matter of the proposed amendment within it and no practical purpose would be served in having the defendant's application heard first and then relegating the plaintiff to file a fresh suit with amended plaint.

Bombay High Court

M/S Bharat Travellers Thr. Prop. ... vs Smt. Sumitrabai Wd/O Vinayakrao ... on 4 September, 2017

Bench: S.C. Gupte

Citation: 2017 ALLMR (5) Bom 646,2017(6) MHLJ 703

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Whether appeal is maintainable against order of rejection of amendment application to arbitration petition?

As reference is made to the above, which no where take into consideration a situation like this and so also the judgment. The Arbitration Petition under Section 34 to set aside an Arbitral Award is still pending. Merely because one or two grounds not permitted to be added, by rejecting the application that itself in no way can be stated to be the refusal to set aside the Arbitral Award.

9. The positive law, so far as contention under Section 37 is concerned, is very clear that it is maintainable against setting aside and/or refusing to set aside an Arbitral Award. In the present case, the rejection of the amendment application, in no way, can be stated to be concluding Section 34 petition finally.

10. The learned Judge, after considering the rival submissions, at the final stage of the arbitration petition, may set aside and/or refuse to set aside the Award. The Appeal against such orders under Section 37 is maintainable. However, rejection of such amendment application and/or refusing to permit to raise additional grounds, that itself can not be stated to be order, as contemplated under Section 37(c), against which Appeal, is maintainable. Against the rejection of amendment application, in view of plain reading of Section 37, the appeal itself is not maintainable. However, this in no way read and refer to mean that the Appellant has no remedy whatsoever to challenge and/or agitate the grounds, so raised in the Appeal.

In the High Court of Bombay

Ordinary Original Civil Jurisdiction

(Before Anoop V. Mohta and P.R. Bora, JJ.)

Messrs. Raghuvir Cotton Ginning & Pressing Pvt. Ltd.

v.

Messrs. Vijay Cotton & Fibre Co.

Appeal (L) No. 465 of 2006

In

Chamber Summons (L) No. 1977 of 2016

In

Arbitration Petition No. 507 of 2016

Decided on January 11, 2017

Citation; 2017 SCC OnLine Bom 76,2017(5) MHLJ 352

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Whether merits of amendment is to be seen at the time of deciding amendment application?

 I have already referred to the reasons on which the plea of additional ground for divorce has been disallowed to be taken by the petitioner. Atleast from one of those reasons, it becomes clear that the learned District Judge has entered into the merits of the plea sought to be taken by the petitioner. While considering an amendment application, it is well settled law, it is not open to the Court to enter into the merits of the plea sought to be raised and the Court has to decide the application purely on the basis of the principles applicable to the amendment of pleadings contained in Order 6, Rule 17 of C.P.C. The relevant considerations could be, whether the amendment is necessary for deciding the real controversy between the parties, what is the stage of the proceeding when amendment application is filed, and if it is filed after commencement of trial, whether the plea could have been raised before commencement of the trial. The learned District Judge, however, by finding that pendency of application for restitution of conjugal rights showed that separation was not freely consented, decided on merits of the plea, which is not permissible. Therefore, on this ground itself, the impugned order cannot be sustained in law.

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 68 OF 2014

Mr. Antonio Ferdino Varela,Vs  Mrs. Thereza Maria Angela Varela,

CORAM : S.B. SHUKRE, J.

DATE : 10th APRIL, 2014

Citation: 2014(6)ALLMR121, 2014(5)BomCR117, 2014(5)MhLj601

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When consent term signed by plaintiff can be treated as application for amendment?

It is clear that no decree can be passed as against all the defendants if the consent is signed by only some and not all of them. But if one or more defendants give consent, then decree can be passed against that or those defendants, as the case may be, and the suit may proceed in respect of rest of the defendants, as was observed by the Supreme Court in the case of Bai Chanchal (supra). In the instant case, I find that defendant Ramchandra had signed the consent terms certified by the Court on 23-8-1991 along with the plaintiff and on the basis of those consent terms, a valid decree can certainly be passed as against Ramchandra. Question would be what is the order of the Court in respect of other defendants. In the consent terms, Clause 5 says that the defendant admits that other defendants have no concern with the suit property and there is no objection for deleting their names. Those consent terms have also been signed by the plaintiff. Therefore, this can very well be treated as an application under Order 6, Rule 17 for the amendment of the plaint so far deletion of the defendants are concerned.

Bombay High Court

Ramchandra Bhikchand Nahar And ... vs Narhar Maruti Udavant And Others on 1 November, 1995

Equivalent citations: AIR 1996 Bom 338, (1996) 98 BOMLR 433

Bench: N Chapalgaonkar

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