Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4586 OF 2009
(Arising out of SLP (C) No.23748 of 2007)
P.A. Jayalakshmi … Appellant
Versus
H. Saradha & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Distinction between Order VIII Rule 9 of the Code of Civil Procedure
and Order VI Rule 17 thereof is the question involved in this appeal. It
arises out of a judgment and order dated 4.9.2007 passed by a learned Single
Judge of the High Court of Judicature at Madras in CRP (NDP) No.1643 of
2007.
2
3. Before embarking on the said question, we may notice the admitted
fact:
Anantha Subramania Iyer had two brothers. They were members of a
joint family. By reason of a deed of partition dated 23.8.1962, the said joint
family properties were partitioned in terms whereof the properties involved
in the present suit were allotted to Anantha Subramania Iyer. He had two
sons and five daughters. Appellant is one of them. He allegedly executed a
Will on or about 18.3.1993 in terms whereof he bequeathed the property in
suit in favour of his wife. The said Will was said to have been attested by
his sons. Anantha Sumramania passed away on 19.3.1993. Indisputably, his
wife also passed away on 13.8.1993. P.A. Ganesan, one of the sons of
Anantha Subramania Iyer passed away on 24.5.1998 leaving behind his wife
and three daughters who are respondent Nos.1 to 4 herein. The said
respondents filed a suit for partition in the year 2004. According to them,
the suit property was a joint family property and both the brothers being
rd
coparceners had 1/3 share therein. Apart therefrom, they claimed their
share also in the property which P.A. Ganesan had inherited from his father,
and, thus, the same came to 8/21 for each of the sons of Anantha
Subramania Iyer and 1/21 share so far as his daughters including the
appellant are concerned.
3
4. Appellant filed her written statement on 7.4.2006, inter alia,
contending that after the death of Anantha Subramania Iyer, the properties in
suit devolved upon each of his children equally as a result whereof she
th
inherited 1/7 share therein. Allegedly, she discovered on or about 5.2.2007
that Anantha Subramania Iyer had executed a Will in favour of his wife. On
or about 1.3.2007, she filed an application for leave to file additional written
statement. By an order dated 27.3.2007, the learned Trial Judge dismissed
the said application, opining :
th
“10. The petitioner/4 defendant has filed this
petition after the start of the enquiry proceedings in
this suit and after examination of the PW1 in full
stating that one Anantha Subramania Iyer had
executed a WILL on 18.3.93, that a copy of the
same traced out only now and hence it is to be
considered that mentioning of the same in the
additional written statement itself would be a
belated one and further failure to mention this in
the written statement filed on 7.11.2006 and after
the start of trial filing a petition seeking permission
to file additional written statement with regard to a
WILL which has not been mentioned in the written
statement seems not acceptable and the petition is
a belated one.”
5. Aggrieved thereby and dissatisfied therewith, the appellant filed a
Civil Revision Petition which by reason of the impugned judgment has been
dismissed by the High Court, stating :
“On a careful consideration of the reasons stated
by the learned senior counsel appearing for the
4
Respondent, this Court is of the view that the
introduction of the Will said to have been executed
by Ananthasubramaniam dated 18.3.1993 could
not be considered to receive the same. For the
reasons that if the Will is received by the Court,
then the rights of the parties will be completely
changed. Under such circumstances the share
claimed by the Plaintiff in the suit will also be
changed. Under such circumstances, this Court is
not inclined to interfere with the order passed by
the learned Additional District and Sessions Judge,
(Fast Track Court No.II), Coimbatore. This Court
does not find any valid reasons, the revision is no
merits and the same is dismissed. Consequently,
concerned M.P. No.1 of 2007 is closed. No cost.”
6. Mr. Vishwanathan, learned senior counsel appearing on behalf of the
appellant, would urge :
(1) The learned Trial Judge as also the High Court committed a serious
error in passing the impugned judgment insofar as they failed to take
into consideration that in effect and substance, appellant’s application
should have been treated to be one for amendment of written
statement as envisaged under Order VI Rule 17 of the Code of Civil
Procedure and not one for leave to file additional pleadings as
envisaged under Order VIII Rule 9 thereof.
(2) The appellant having raised a contention that she discovered the
existence of Will only on 5.2.2007, even the requirements of the
5
proviso appended to Order VI Rule 17 of the Code of Civil Procedure
must be held to have been satisfied.
(3) By reason of the said application, the appellant did not bring about
any change in the principal contention raised in her written statement
as the said Will was sought to be brought on record wherefor requisite
pleadings were necessary only to support her case that the properties
in question belonged to Anantha Subramania Iyer and the same was
not a joint Mitakshara Coparcenery property.
7. Mr. B.K. Pal, learned counsel appearing on behalf of the respondent,
on the other hand, supported the impugned judgment contending that the
appellant had all along contended that the said application was filed in terms
of Order VIII Rule 9 of the Code of Civil Procedure.
8. By reason of Code of Civil Procedure (Amendment) Act, 1976,
measures have been taken for early disposal of the suits. In furtherance of
the aforementioned Parliamentary object, further amendments were carried
out in the year 1999 and 2002.
With a view to put an end to the practice of filing applications for
amendments of pleadings belatedly, a proviso was added to Order VI Rule
17 which reads as under:
6
“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 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.”
Order VI Rule 17 speaks of amendment of pleadings whereas Order
VIII Rule 9 provides for subsequent pleadings by a defendant. The
distinction between the two provisions is evident. Whereas by reason of the
former unless a contrary intention is expressed by the court, any amendment
carried out in the pleadings shall relate back to the date of filing original
thereof, subsequent pleadings stand on different footings.
9. For reasons best known to the appellant, she had chosen to file her
application seeking leave to file additional pleadings. Such a stand might
have been taken by her with a view to obviate the bar created by reason of
the proviso appended to Order VI Rule 17 of the Code of Civil Procedure.
The firm stand taken by the appellant both before the Trial Court as also the
High Court was that her application was under Order VIII Rule 9 of the
7
Code of Civil Procedure. At no point of time, a contention was raised that
she wanted to amend her pleadings.
10. Ordinarily at such a belated stage, leave for filing additional written
statement is usually not granted. We may notice that one of the plaintiffs
was examined on 1.3.2007. It is accepted at the bar that despite the fact that
the appellant is said to have discovered the existence of the Will on or about
5.2.2007, no question was put to the said witness with regard to the said Will
or otherwise. It is only at a later stage that the aforementioned application
for grant of leave to file additional written statement was moved. There
cannot be any doubt or dispute that the courts should be liberal in allowing
applications for leave to amend pleadings but it is also well settled that the
courts must bear in mind the statutory limitations brought about by reason of
the Code of Civil Procedure (Amendment) Acts; the proviso appended to
Order VI Rule 17 being one of them.
In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das
(Dead) By LRs. [(2008) 8 SCC 511], the law has laid down by this Court in
the following terms:
“ 16. Insofar as the principles which govern the
question of granting or disallowing amendments
under Order 6 Rule 17 CPC (as it stood at the
relevant time) are concerned, these are also well
settled. Order 6 Rule 17 CPC postulates
amendment of pleadings at any stage of the
8
proceedings. In Pirgonda Hongonda Patil v.
3
Kalgonda Shidgonda Patil which still holds the
field, it was held that all amendments ought to be
allowed which satisfy the two conditions: ( a ) of
not working injustice to the other side, and ( b ) of
being necessary for the purpose of determining the
real questions in controversy between the parties.
Amendments should be refused only where the
other party cannot be placed in the same position
as if the pleading had been originally correct, but
the amendment would cause him an injury which
could not be compensated in costs. (Also see
Gajanan Jaikishan Joshi v. Prabhakar Mohanlal
Kalwar ).”
Yet again, in Bollepanda P. Poonacha & Anr. v. K.M. Madapa
[(2008) 13 SCC 179], the law is laid down in the following terms :
“ 15. A belated counterclaim must be discouraged
by this Court. See Ramesh Chand Ardawatiya v.
Anil Panjwani . We are, however, not unmindful of
the decisions of this Court where a defendant has
been allowed to amend his written statement so as
to enable him to elaborate his defence or to take
additional pleas in support of his case. The Court
in such matters has a wide discretion. It must,
however, subserve the ultimate cause of justice. It
may be true that further litigation should be
endeavoured to be avoided. It may also be true that
joinder of several causes of action in a suit is
permissible. The Court, must, however, exercise
the discretionary jurisdiction in a judicious
manner. While considering that subservance of
justice is the ultimate goal, the statutory limitation
shall not be overstepped. Grant of relief will
depend upon the factual background involved in
each case. The Court, while undoubtedly would
take into consideration the questions of serious
injustice or irreparable loss, but nevertheless
9
should bear in mind that a provision for
amendment of pleadings is not available as a
matter of right under all circumstances. One cause
of action cannot be allowed to be substituted by
another. Ordinarily, effect of an admission made in
earlier pleadings shall not be permitted to be taken
6
away. See State of A.P. v. Pioneer Builders and
7
Steel Authority of India Ltd. v. Union of India and
”
Himmat Singh v. ICI India Ltd.
(Emphasis supplied)
Yet again, in Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC
409], this Court upon taking into consideration the effect of the insertion of
proviso to Order VI Rule 17 held as under :
“ 10. By reason of the Civil Procedure Code
(Amendment) Act, 2002 (Act 22 of 2002),
Parliament inter alia inserted a proviso to Order 6
Rule 17 of the Code, which reads as under:
“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.”
It is couched in a mandatory form. 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 that in
spite of due diligence the parties could not have
raised the matter before the commencement of the
trial.
XXX XXX XXX
19. It is the primal duty of the court to decide as to
whether such an amendment is necessary to decide
the real dispute between the parties. Only if such a
10
condition is fulfilled, the amendment is to be
allowed. However, proviso appended to Order 6
Rule 17 of the Code restricts the power of the
court. It puts an embargo on exercise of its
jurisdiction. The court’s jurisdiction, in a case of
this nature is limited. Thus, unless the
jurisdictional fact, as envisaged therein, is found to
be existing, the court will have no jurisdiction at
all to allow the amendment of the plaint.”
11. We, therefore, do not find any legal infirmity in the orders passed by
the High Court. This appeal is, therefore, dismissed with costs. Counsel’s
fee assessed at Rs.10,000/- (Rupees ten thousand only).
……………………….J.
[S.B. Sinha]
`
……………………..…J.
[Deepak Verma]
New Delhi;
July 21, 2009