- (1.) PETITIONERS have filed this petition challenging the order dated 12.11.2013, whereby application moved by the petitioners for permission to amend the written statement by the First Appellate Court, was declined.
(2.) LEARNED counsel for the petitioner has submitted that the Court below had erred in dismissing the application filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure, 1908. The trial court while dealing with issue No.6 had held that the argument raised by defendant No.1 that the entire suit property could be inherited by male heirs was beyond pleadings. Hence, it was necessary to amend the written statement and take up the said plea by way of amendment. Learned counsel for the petitioner has further submitted that only legal submission was sought to be incorporated by way of amendment and no evidence was required to be led in support thereof. In support of his arguments, learned counsel has placed reliance on Rameshkumar Agarwal Vs. Rajmala Exports Private Limited and Others wherein it was held as under: - "It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."
(3.) LEARNED counsel has also relied upon Surender Kumar Sharma Vs. Makhan Singh, 2009 4 CivCC 599 wherein it was held as under: - "As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. [See B.K. N. Pillai Vs. P. Pillai and Anr., 2000 AIR(SC) 614] Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed." In the present case, respondent No.1 had filed suit for possession by challenging the Civil Court decree dated 24.12.1985. The suit filed by respondent No.1 was decreed by the trial court vide judgment/decree dated 22.10.2011 and subsequent sale deeds in pursuance thereto. Aggrieved against the said judgment/decree, petitioners have preferred an appeal. During the pendency of the appeal petitioners moved an application for permission to amend the written statement. The First Appellate Court, while dismissing the application has observed as under: - "From the above discussed facts, it is quite clear that applicant Anita and her husband are playing hide and seek game with the court. Counsel for the applicants during the course of arguments, submitted that question of law is involved only as prayed in application and a male member cannot be deprived by the married daughters of his rights. This fact has been in knowledge of Subhash and his wife Anita for more than 20 years. It was neither raised at the time of framing of issues nor later on. Dispute started between the parties with regard to right which applicants are claiming through the present application, in the year 1980 when Subhash claimed his exclusive right qua the disputed property on the basis of the family settlement. He acknowledged the sanctity of the mutation at the time he filed suit on the basis of family settlement in the year 1985. Thereafter another suit was filed in the year 1983, 1984 and 1985. Present suit was filed by the respondents in the year 2004, which was decreed in favour of L.R. Santosh Devi. It is very much imperative to mention here that applicant could not make out any ground why this fact was not incorporated in the pleadings before the learned trial court by the applicant. If it is clear question of law then what is necessity for introduction of this plea by way of amendment in the written statement of the appellants. In my view, this application has been filed by the applicants for delaying tactics only and it is not maintainable. Consequently, application under order 6 Rule 17 of CPC filed by the appellants is dismissed.";