Whether grant of application for amendment in written statement can be allowed only if proposed case will succeed?

 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 Co. MANU/SC/0080/2003 : (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 Code of Civil Procedure. 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 19400 of 2017 (Arising out of SLP (C) No. 8858 of 2017)

Decided On: 15.12.2017

Raj Kumar Bhatia Vs. Subhash Chander Bhatia

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation:(2018)2 SCC 87

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Whether court should see merits of amendment while allowing amendment of plaint in rent suit?

The whole basis of the defendant's opposition to the amendment application and in fact, in support of its case for rejection of plaint under Order 7 Rule 11(d) of the Code, is that the plaint, on the face of it, shows that the suit is not maintainable under the provisions of the Maharashtra Rent Control Act under which it is purportedly filed. It is submitted that an open plot of land cannot be termed as 'premises' so as to bring the suit for eviction in respect of such plot of land within the jurisdiction of the Small Causes Court under Sections 15 and 16 of the Maharashtra Rent Control Act. On the face of it, however, the plaint does not indicate that the suit premises, which is said to be tenanted by the defendant, is an open plot of land, though the averments made in this behalf in the plaint are somewhat vague. In the very opening portion of the plaint, while describing the suit property, the following words are used:

"On the said pot owned by the plaintiff there are various structures in certain portions and defendant is occupying a portion of the said plot (which?) admeasures about 36,000 square feet along with other Firms of defendant's family." (sic.)

Though vague, this statement cannot be said to mean that the plaintiff has come to the Court with a specific case that the suit premises consists of an open plot of land. In fact, even the defendant does not suggest that in its application under Order 7 Rule 11(d) of the Code. The defendant, in its application (paragraph 4), in terms, submits that "....the notice issued by the plaintiff and the plaint are silent as regards the type of premises given on rent to the Defendant." and further "it is no where mentioned in the entire plaint that whether the premises given on rent to the present Defendant are constructed premises or open piece of land or a temporary structure." It is one thing to say that the plaint does not take up a definite position on the nature of the premises, whether an open plot or constructed premises or temporary structure, and quite another to say that the plaintiff has come to the Court with a specific case that the suit premises consists of an open plot of land.

7. The plaintiff merely wants to rid the plaint of this vagueness by incorporating a specific averment in the description that the suit premises consists of a plot of land with structure. In the premises, there is no infirmity in the impugned order allowing the amendment.

8. In the case of Zohra Khatoon decided by Calcutta High Court, the Court was of the view that it inherently lacked jurisdiction to entertain the suit. The suit was in respect of lands which fell outside the territorial jurisdiction of the Court. The Court was of the view that granting of an amendment, which would have permitted the plaintiff to delete various prayers in the plaint so as to bring the suit within the jurisdiction of the Court, would be impermissible, since granting of such amendment postulates an authority in the Court to entertain the suit, in the first place. It is not necessary for me to express any opinion on the propositions laid down by Calcutta High Court in that case. Suffice it to say, for the purposes of the present application, that there is no such case here. Here, as we have noted above, from the description of the suit property in the plaint, it could not be said that the Court inherently lacked jurisdiction to entertain the suit. At best, the description of the suit property in the plaint could be said to be vague and it was precisely to do away with this vagueness that the amendment was sought to be introduced and therefore, rightly allowed by the Court.

9. Even otherwise, a suit for eviction for arrears of rent in a case, which is not covered by the provisions of the Rent Control Act, would, under the provisions of the Transfer of Property Act, lie before the same Court, though on a different basis, that is to say, under Section 106 of the Transfer of Property Act and not under Sections 15 and 16 of the Maharashtra Rent Control Act. Even on that reasoning, it cannot be said that the Court inherently lacks jurisdiction to entertain the suit.

10. Learned counsel for the petitioner (original defendant) submits that the amendment takes away his client's right to have the plaintiff non-suited on account of the suit premises falling outside the definition of "premises" under Section 7(9) of the Maharashtra Rent Control Act. I am afraid learned counsel is not right even there. Whether the suit premises consists of an open plot, as suggested by the defendant, or is land appurtenant to the structure, as claimed by the plaintiff, is a matter of merit to be decided in the suit. If the defendant is right in its defence that the suit premises is nothing but an open plot of land, the plaintiff would be non-suited on his case of eviction under Sections 15 and 16 of the Maharashtra Rent Control Act and possibly also, on his case for eviction under Section 106 of the Transfer of Property Act, though this Court need not express its final opinion on that question.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 3729 of 2017

Decided On: 04.09.2017

Bharat Travellers Vs. Sumitrabai Vinayakrao Buty

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2017(6) MHLJ 703

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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 amplification of pleadings is permissible by amendment of pleading?

Whether allowance of application for amendment of plaint filed by one of Respondents was valid - Held, amendment was only amplification of pleadings already on record - Amendment contained some subsequent developments and quantification of damages - Respondent had acted with due diligence - Merits of amendment could not have been gone into at this stage - Amendment was necessary for deciding real controversy in dispute - Therefore, allowance of application for amendment of plaint filed by one of Respondents was valid.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 259 of 2015

Decided On: 31.08.2015

Rajaram Naik Vs. The State of Goa and Ors.

Hon'ble Judges/Coram:
C.V. Bhadang, J.
Citation: 2016(1) MHLJ 770

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What is real controversy test for deciding amendment of pleading?

In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.

13. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5350-5351 of 2002

Decided On: 22.03.2006

 Rajesh Kumar Aggarwal and Ors. Vs. K.K. Modi and Ors.

Hon'ble Judges/Coram:

H.K. Sema and AR. Lakshmanan, JJ.

Citation: AIR 2006 SC 1647.

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Whether it is permissible to introduce additional ground of defence by amendment of written statement?

So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2946 of 2007 (Arising out of SLP [C] No. 10844 of 2007) 
Decided On: 10.07.2007

Andhra Bank Vs. ABN Amro Bank N.V. and Ors.

Hon'ble Judges/Coram:
Tarun Chatterjee and Markandey Katju, JJ.
Citation:(2007) 6 SCC 167

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Basic principles for deciding application for amendment of pleading

 It is trite that at the stage of consideration of an application for amendment, the merits of the amendment need not be gone into as also the issue of limitation, as the parties can ask for appropriate issues to be framed in that regard at the hearing of the suit. Hence, the contentions as regards the subject-matter of the amendment being barred by limitation etc. need not be gone into, unless it can be ex facie seen that it is barred by limitation, the court considering an amendment application need not be detained in considering the application for amendment on the said ground.

Bombay High Court

M/S N.C.Banerjee And Company vs Shri Manoj Balkrishna Shah on 27 July, 2011

Bench: R. M. Savant

Citation: 2012(2) Bom CR775

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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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