LexRAJKUMAR GURAWARA (DEAD) THR. L.RS. versus M/S S.K. SARWAGI & CO. PVT. LTD. & ANR.
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A B - ·---- -- ltoosr8s.C.R~foo RAJKUMAR GURAWARA (DEAD) THR. L.RS. v. MIS S.K. SARWAGI & CO. PVT. LTD. & ANR. (Civil Appeal No. 3576 o'f 2008) MAY 14, 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] Code of Civil Procedure, 1908 - C~ 6 r. 17 - Amendment of plaint - Sought at the stage of arguments - Permissibility- * C Held: Amendment of the plaint can be permitted at any stage of the proceedings, but subject to certain conditions :.... Jn the instant case, plaintiff failed to satisfy those conditions - Plain- tiff also failed to take recourse to the amendment at appropri- ate time - Hence amendment cannot be permitted. D Appellant-plaintiff filed a suit for declaration of his exclusive right to do mining operation in the suit prop- ~ erty. Thereafter first respondent filed an application for its impleadment and was impleaded as second defendant r I "~'"' · after closing of the evidence and during course of the ar- ~ E guments. Thereafter, appellant filed an application under Order VI Rule 17 r/w s.151 CPC for amendment of the plaint praying for possession over the suit property and for grant of damages. The application was allowed. First . respondent filed revision petition, which was allowed by F tiigh Court dismissing the application for amendment. ,. Hence the present appeal. Dismissing the appeal, the Court HELD: 1.0rder VI Rule 17 C.P.C. confers jurisdiction G on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determina- ~ tion of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amend- H .700 RAJKUMAR GURAWARA (DEAD) THR. L.RS. v. 701 . M/S S.K. SARWAGI & CO. PVT. LTD. & ANR. ments are to be allowed liberally than those which are A sought to be made after the commencement of the trial. In the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, partlcularly, after comple- B tion of the evidence, the question of prejudice to the op- posite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions pre- scribed in the proviso. [Para 5) [706-C,D,E,F] 2. The grant of application for amendment be sub- C ject to certain conditions, namely, (I) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of ac- tion and intends to prejudice the other party; (iii). when allowing amendment application defeats the law of limi- D tation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. [Para 7) [708-E,F] 3. In the present case, prior to filing of the suit, no- tices wer.e exchanged between the parties. In reply to the E plaintiff's notice, it was specifically asserted that the first respondent(D2) was carrying on mining activities in the suit schedule lands. The perusal of the reply notice is- sued by first respondent to the plaintiff, clearly shows that the plaintiff was made known that the suit lands were F in possession of first respondent having taken them on lease from the Government. With the said information in the reply notice about the mining being carried on by first respondent, the plaintiff filed the said suit without implead- ing him for possession and damages. It is explicit from G the written statement filed by D-1 that the plaintiff was made known of the fact that the Government issued or- der transferring mining lease held by A.P. Mineral Devel- opment Corporation in favour of first respondent and the leased lands are in possession and enjoyment of first re- H 702 SUPREME COURT REPORTS [2008] 8 S.C.R. A spondent. lnspite of the plaintiff being put in knowledge of the act of the person in possession of the suit property did not choose to implead the first respondent which came on record on its own application as D-2 in the suit. It is clear that inspite of reply notice and specific plea taken B in the written statement of D-1, the plaintiff did not chose to take steps to get the plaint amended suitably and in- stead allowed the suit to go on and examined the wit- nesses on his behalf and cross-examinE!d the witnesses °" produced by the defendant
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