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.  

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  

coparceners  had 1/3rd 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.   

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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  

inherited 1/7th 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 :

“10. The  petitioner/4th 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  

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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  

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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:

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“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  

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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  

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proceedings.  In  Pirgonda  Hongonda  Patil v.  Kalgonda Shidgonda Patil3 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  

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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  away. See  State of A.P. v.  Pioneer Builders6 and  Steel Authority of India Ltd. v. Union of India7 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.

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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  

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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

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