U. C. Srivastava, J. - (1.) THE part of the order passed by the IV Additional District Judge, Faizabad, allowing amendment of the written statement in appeal filed by the opposite parties arising out of a suit filed by the petitioner, a teacher in Forbs Intermediate College, Faizabad, is subject matter of challenge in this writ petition. THE Additional District Judge in exercise of its revisional power rejected one amendment but allowed the other amendment prayed for by the defendants to the suit. THE defendants of the suit i. e. the opposite parties have not challenged that part of the order by filing of the writ petition and the plaintiff to the suit, the teacher, has filed this writ petition.
(2.) THE plaintiff-petitioner who was appointed as Assistant Teacher in Forbs Higher Secondary School (now Intermediate College) filed a suit challenging the order dated 25-4-75 by which his services were terminated. It was pleaded by the petitioner that the Society known as Forbs Higher Secondary School, Faizabad has its own bye-laws and scheme of administration duly approved by the Deputy Director of Education and the provisions of the U. P. Intermediate Education Act and rules, regulations and ordinances are fully applicable to the said institution. THE suit was contested by the defendants who admitted this position, but defended the termination order on the ground that the same was legal. THE suit of the plaintiff-petitioner was decreed and it was held that the termination order was void and decree for realization of salary was passed. THE decree was executed and the petitioner succeeded in getting the arrears of salary and joined the institution in which he is still continuing. This was done after the objections under section 47 filed by the opposite parties were dismissed and thereafter 1st appeal was filed by the opposite parties against the judgment and decree dated 13th May, 1980 which came up for hearing before the Additional District Judge. THE appeal was adjourned on certain dates and it was only on 7th April, 1982 the opposite parties moved an application for amendment of the written statement in appeal. It was prayed that few important pleas could not be taken in the written statement by mistake and they were necessary for proper adjudication of the case. THE main plea was that the defendants' college being a minority institution, the provisions of U. P. Intermediate Act would not govern the employment of the petitioner and as such his termination could not be held to be void. THE Additional District Judge rejected the other amendment prayed for, but so far as this amendment is concerned, it was allowed. By this amendment, it appears, the defendants wanted to claim benefit of Article 30 of the Constitution of India. THE said Article reads as follows ;- " Article 30. Right of minorities to establish and administer educational institutions : (1) All minorities, whether based on religion or language shall have the right to establish and administer educational institutions of their choice. (1-A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause. (2) THE State shall not, in granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. " In the instant case it will not be out of place to mention that there was no dispute that the institution was governed by the U. P. Intermediate Act and the Rules and Regulations framed thereunder and it was an aided institution governed by the said Act and was getting grant from the State Government. THE amendment which was prayed for was not purely question of law and in the written statement even not a word was said that the facts in this behalf were already on the record. It appears that the defendants wanted to take the plea though they have not taken in so many words that this institution was established by Muslims and was a minority institution. U. P. Intermediate Act also makes certain safeguards in respect of the institutions said to be minority institutions in respect of which there was no foundation even in the written statement. Thus a plea of law was sought to be taken without any necessary averments or details in this behalf. Not a word was said that the institution was established only by the Muslims and that it was established in the interest of that community or was giving religious teaching or imparting religious education and that it was admitted by the members of that community only. During the course of arguments learned counsel for the opposite parties stated that the Society was started by few prominent Muslim and one Hindu citizens of Faizabad in the name of an English Man. Thus it was not established by members of Muslim community alone. Learned counsel further stated that it would not be possible to state that the same was for the benefit of Muslims and for advancing religious teaching. No notice of these oral submissions can be taken which may not support the case of opposite parties. Rights and protection conferred under Article 30 of the Constitution of India are available only to those institutions which have not only been established by minority as understood in that Article, but are also administered by the said minority community itself as has been held in Azeej Basha v. Union of India, AIR 1968 SC 662. Order 6, Rule 17, CPC, confers power on the court to allow the amendment of the pleadings. This power is exercisable at any stage of the suit including the appellate stage. It is true that the procedural law is intended to facilitate or to administer substantial justice, but the same does not mean that every amendment of pleading at any stage which may not even be bonafide or be the result of some malafides or is designed to take away valuable rights which accrue in favour of a party or is calculated to do injustice to the other party should be allowed. In its recent decision Haridas Aildas Thadani v. Godrej Rustom Kermani, 1982 AWC 201 the Supreme Court of India observed that it was well settled that the court should be extremely liberal in granting prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side, and that it was also clear that a Revisional Court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances This case though again reiterates that in the matter of allowing amendment of pleading the extreme liberty should be observed yet the same is not to be allowed if serious injustice or irreparable loss is caused to other party to the litigation. There can be no fixed criteria to find out serious injustice or irreparable loss to other party to litigation and it depends on the facts of every case. In Haji Mohammad Ishaq v. Mohd. Iqbal, AIR 1978 SC 798 in appeal an application for amendment introducing a new case and for adducing additional evidence under Order 41, Rule, 27, CPC, was moved. It was held that the amendment of the written statement sought in appeal was on such facts which if permitted would completely change the nature of defence and such amendment thus deserves to be rejected. In the said case although something was said in the statement given before the trial court, but no prayer for amendment of the written statement and to adduce evidence before the trial court. It was three years thereafter that the prayer for amendment of the written statement on such facts was made which obviously would have completely changed the nature of the defence in the said case.
(3.) IN Pandit Iswardas v. State of Madhya Pradesh, (1979) 4 SCC 163, in which case the plea of res judicata was sought to be taken at the appellate stage which was rejected by the High Court on the ground of absence of necessary material but was allowed by the Supreme Court, it was observed that there is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea, provided the appellate court observes the well known principles subject to which amendments of pleadings are usually granted. There should be a reasonable explanation for the delay in making the application seeking such amendments and, if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But there is no prohibition at the appellate stage merely because the necessary material is not already before the court. Thus in order an amendment of the written statement at the appellate stage is to be allowed, there should be reasonable explanation of delay in making the application for amendment at the appellate stage. The plea of res judicata was sought to be added at the appellate stage and the law with reference to the same as mentioned was laid down. Though the said case is an authority for allowing the legal plea raised by way of amendment which rather goes to the root of the matter even though there may not be necessary material for the same on the record but even the same could not be allowed unless there is reasonable explanation for delay and court accepts the same. For an amendment of written statement even at the appellate stage liberally allowing the same is to be the guiding factor, but such amendments could be allowed only if there is reasonable explanation for delay in making the application and the reasons why it was not sought in the trial court should be assigned and provided also that the amendment sought for does not introduce a new case which changes the original nature of the defence and also does not work any serious injustice or irreparable loss to the other side. If amendment sought for are vague or is calculated to have a fresh enquiry of roving and rambling in nature or entails a fresh and different enquiry altogether as distinguished from earlier enquiry after accrual of certain rights in favour of the other party which may cause serious injustice to him, such amendments cannot be allowed.;