Case Note & Summary
The matter arose from a writ petition filed before the Bombay High Court, Nagpur Bench, challenging an order dated 13/02/2020 passed by the First Appellate Court, which had rejected an application for amendment of the written statement filed by the petitioner/defendant in a pending regular civil appeal. The petitioner, an illiterate pardanashin lady, was the original defendant in a suit filed by the respondent/plaintiff for declaration, perpetual injunction, and possession of a suit plot. The respondent claimed ownership based on a sale deed dated 25/02/1994 and alleged that the petitioner had got her name entered in the Record of Rights through a false and concocted gift deed. The petitioner defended the suit by claiming that the suit property was purchased by her husband in the name of the plaintiff with an understanding that it would be transferred to her, and that the plaintiff executed a gift deed in her favour, which formed the basis for mutation entries. The Trial Court, by its decision dated 30/11/2013, rejected the defendant's contention regarding the gift deed on the ground that there were no proper pleadings in the written statement regarding details of the gift deed, such as stamp, date of execution, etc. The defendant preferred Regular Civil Appeal No.2 of 2014 before the District Court, raising grounds including improper framing of issues. During the pendency of the appeal, the defendant filed an application for amendment of the written statement seeking to incorporate proposed paragraphs 19 to 23, which provided relevant details of the gift deed, including boundaries and area, and also proposed to plead that the plaintiff had not sought cancellation of the gift deed. The defendant claimed that she was illiterate and a pardanashin lady, and that the omission in the original written statement was due to a drafting error. The First Appellate Court rejected the application on the grounds that all proposed details were already known to the defendant, the amendment was not a subsequent development, and the defendant failed to exercise due diligence while filing the written statement. The petitioner challenged this rejection before the High Court. The petitioner's counsel argued that the amendment was clarificatory, necessary for complete justice, would not change the nature of the suit, and would not cause prejudice to the plaintiff. Reliance was placed on Chakreshwari Construction Private Limited v. Manohar Lal, (2017) 5 SCC 212, Revajeetu Builders and Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84, and Egidio Braganza v. Lino Agnelo Fernandes, 2016 SCC OnLine Bom 3962. The respondent/plaintiff opposed the amendment, contending that it was filed to fill up lacunae and counter the Trial Court's findings, and that there were no genuine reasons for the omission. The respondent relied on Shivshankara & Anr. v. H.P.Vedavyasa Char, 2023 LiveLaw (SC) 261, arguing that amendment at the appellate stage could be allowed only in exceptional circumstances. The High Court examined the settled law on amendment of pleadings, noting that clarificatory amendments not changing the nature of the claim or causing prejudice should be liberally allowed, and that amendment could be allowed even at the second appeal stage if proper reasons existed. The court applied the principles from Revajeetu Builders, which require consideration of whether the amendment is imperative for proper adjudication, bona fide, not causing uncompensable prejudice, refusing it would lead to injustice or multiple litigation, not fundamentally changing the case, and not barred by limitation. The court observed that the defendant had laid the foundation of the gift deed in the original written statement, and the proposed amendment only clarified the details. The court also noted that the defendant was an illiterate pardanashin lady, which warranted a more liberal consideration of the amendment. The High Court concluded that the proposed amendment was clarificatory and necessary for proper and effective adjudication, and that the First Appellate Court had erred in rejecting it. Accordingly, the writ petition was allowed, the impugned order dated 13/02/2020 was set aside, and the amendment of the written statement was permitted.
Headnote
A) Civil Procedure - Amendment of Pleadings - Clarificatory Amendment - Code of Civil Procedure, 1908, Order VI Rule 17 - The petitioner/defendant sought amendment of written statement to incorporate details of gift deed, including date, stamp, boundaries, and area, and also to plead absence of any prayer for cancellation of gift deed. The court observed that amendments which are clarificatory in nature, not changing the nature of claim or relief and not causing prejudice, should be liberally allowed; refusal would lead to injustice. The proposed amendment only clarified the stand already taken in the original written statement regarding the gift deed. (Paras 20-23) B) Civil Procedure - Amendment at Appellate Stage - Due Diligence and Liberal Consideration - Code of Civil Procedure, 1908, Order VI Rule 17 - The First Appellate Court rejected the amendment on the ground of belated stage and lack of due diligence. The High Court noted that amendment can be allowed even at the second appeal stage if proper reasons are forthcoming and necessary for just decision of the suit. The court found that the defendant, an illiterate pardanashin lady, had already laid foundation of the gift deed in the written statement, and the proposed amendment did not introduce a new case. (Paras 18-22) C) Civil Procedure - Principles Governing Amendment - Six Criteria - Code of Civil Procedure, 1908, Order VI Rule 17 - The court referred to the principles culled out in Revajeetu Builders and Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84, which require consideration of whether amendment is imperative for proper adjudication, bona fide, not causing uncompensable prejudice, refusal leading to injustice or multiple litigation, not fundamentally changing nature, and not barred by limitation. The court applied these principles and found the amendment necessary for effective adjudication. (Paras 7, 22-23) D) Evidence/Procedure - Pleadings by Illiterate Pardanashin Lady - Liberal Interpretation - Code of Civil Procedure, 1908, Order VIII - The court considered that the petitioner was an illiterate pardanashin lady and that the written statement filed by her was not elaborate; however, she had disclosed the gift deed and its execution. The proposed amendment only clarified the details, and such amendment relevant for clarifying a matter in which foundation is already laid must receive more liberal consideration. (Paras 4-5, 18, 23)
Issue of Consideration
Whether the First Appellate Court erred in rejecting the application for amendment of the written statement where the amendment sought to incorporate details of the gift deed and whether such amendment was clarificatory and necessary for just decision of the suit despite being filed at the appellate stage.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 13/02/2020 passed by the First Appellate Court, and permitted the petitioner to amend the written statement as proposed. The court held that the proposed amendment was clarificatory, necessary for proper and effective adjudication, and would not cause prejudice to the respondent/plaintiff.
Law Points
- Amendments which are clarificatory in nature
- not changing the nature of the claim or relief and not causing prejudice to the other side could be liberally allowed
- Amendment could be allowed even at the stage of second appeal if proper reasons are forthcoming and such amendment is necessary for the just decision of the suit
- While deciding amendment application
- court must consider whether amendment is imperative for proper and effective adjudication
- whether application is bona fide or mala fide
- whether prejudice to other side cannot be compensated in money
- whether refusal would lead to injustice or multiple litigation
- whether proposed amendment fundamentally changes nature and character of case
- and whether fresh suit on amended claims would be barred by limitation
- When amendment is relevant for clarifying matter in respect of which foundation is laid in written statement
- it must receive more liberal consideration
