Whether court should amendment of pleading if amendment is not necessary for deciding real controversy in suit?

At the outset, it is necessary to note that the subject-matter of dispute in the suit is only land Survey No. 96/1, which is distinct than land Survey No. 76/3. It is the specific case of the petitioners that they have no concern with the land Survey No. 76/3 and the petitioners and their predecessor, Pandurang Gaudo were not claiming any tenancy rights in respect of the land Survey No. 76/3. If that be so, the proposed amendment, which seeks to bring on record the fact that the name of Pandurang Gaudo was deleted, from the name of the tenants, from land Survey No. 76/3, cannot be said to be necessary for the just decision of the case. The learned Trial Court is also not correct in observing that the amendment is based on the subsequent event. This is because the order of deletion of name of Pandurang Gaudo is passed in 1992, while the suit is filed in the year 1993. There cannot be any manner of dispute with the proposition that the amendment can be allowed at any stage of the proceedings, provided that the amendment is necessary for deciding the real controversy in the suit. The test for allowing any amendment is whether, the proposed amendment is necessary for deciding the real controversy in the suit. As noticed earlier, the land Survey No. 76/3, is not the subject-matter of dispute in the suit. That apart, the respondent has filed an independent application for negative declaration against the petitioners in respect of land Survey No. 96/1, which is pending before the Mamlatdar. In such circumstances, it cannot be said that the proposed amendment is necessary for deciding the real controversy in the suit.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 649 of 2017

Decided On: 13.09.2017

 Pandurang Krishna Gaudo Vs. Madachem Bat Mines Pvt. Ltd.

Hon'ble Judges/Coram:

C.V. Bhadang, J.

Citation: 2018(4) MHLJ 147

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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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