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REPORTABLE

            IN THE SUPREME COURT OF INDIA

              CIVIL APPELLATE JURISDICTION

           CIVIL APPEAL NO.            OF 2008          (Arising out of SLP (C) No. 21014 of 2004)

Rajkumar Gurawara (Dead) Thr. L.Rs.                 .... Appellant (s)

         Versus

M/s S.K. Sarwagi & Co. Pvt. Ltd. & Anr.                  .... Respondent(s)

                           JUDGMENT

P. Sathasivam, J.

1)   Leave granted.

2)   Challenge in this appeal is the order dated 17.08.2004 of

the High Court of Andhra Pradesh at Hyderabad in Civil

Revision Petition No. 1738 of 2004 whereby the High Court

allowed the revision filed by respondent No.1 herein.

3)   The brief facts leading to the filing of this appeal are:

         On    05.01.1948,     the   father   of    the    appellant

purchased the suit lands at Ayitham Valasa Village, Grividi

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Mandal, Vizianagaram, Andhra Pradesh along with some other

properties for Rs.9,176/- at a public auction held under the

liquidation proceedings in O.P. No. 30 of 1946 on the file of

the   District   Court   at   Vizianagaram   before   the   Official

Liquidator at Vizagpatnam (Visakhapatnam) in the matter of

the Indian Companies Act, 1913 and of the Vizianagaram

Mining Co. Ltd. in liquidation and the Rajah Saheb and others

as creditors in pursuance of the order dated 6.3.1946 passed

by the High Court of Madras in O.P. No. 25 of 1946. The suit

lands were registered on 30.4.1948 under the Registered

Document No. 732 of 1948 in Book I, Volume 346 at pages

147 to 151 in the office of the Registrar at Vizianagaram in

favour of the father of the appellant conveying, transferring

and assigning all the rights including ownership, possession

and interests of Vizianagaram Mining Co. Ltd., i.e., right to

mining operations, use and sell the said lands. The mining

operations were carried over the said lands in the name and

style as M/s Ashwani Rajkumar Mining & Trading Company

by the father of the appellant.      In 1958, the father of the

appellant expired. After the death of father, the appellant was

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carrying the mining operations.    In 1960, the appellant left

Vizianagaram for Jagadalpur because of his other business

work.   In 2001-2002, the appellant came to know that

respondent No.2 - State of Andhra Pradesh, was planning to

lease out the said lands for mining operation to other

companies.    On 22.3.2002, the appellant issued a notice

under Section 80 C.P.C. to the State through his counsel

asking the State not to give the suit property on lease to any

other party and not to interfere with the rights and interest of

the appellant over the suit lands. On 8.7.2002, the appellant

came to know that respondent No.2-State has invited some

companies to take the suit lands on lease against the rights

and interest of the appellant.    On 20.8.2002, the appellant

filed Original Suit No.6 of 2002 in the Court of the Additional

District Court, Vizianagaram seeking declaration of his

exclusive right to do mining operation, to use and sell over the

suit lands against respondent No.2’ s infringement of such

exclusive right of the appellant over the suit lands.        An

application of ad-interim injunction was also filed restraining

respondent No.2 from ever leasing the suit land to strangers

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against the interest of the appellant over the said lands.

When the trial was about to close in the said suit, on

11.6.2003, an application under Order 1 Rule 10 CPC was

filed by respondent No.1 herein to be added as defendant No.2

in the original suit on the ground that a deed has been

executed in its favour by the State leasing the suit lands for

mining operations.   On 11.7.2003, the said application was

allowed by the Additional District Judge and respondent No.1

herein was added as defendant No.2 in the original suit.

    Thereafter on 14.10.2003, an application was moved on

behalf of respondent No.1 for appointment of a local

Commissioner to note the physical features of the suit lands

and to file his report.   The said application was allowed by

order dated 23.10.2003 and a local Commissioner was

appointed.   On 3.12.2003, the Commissioner inspected the

suit lands and filed its report stating that the suit lands were

in possession of respondent No.1 and mining operations were

carried by it. In December, 2003 itself, the appellant herein

moved an application under Order VI Rule 17 C.P.C. for

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amendment of the plaint and also consequential relief for

possession of the suit lands and for damages trespassing into

and carrying on mining operations on the suit lands and the

same was allowed on 10.3.2004.        Against the said order,

respondent No.1 approached the High Court by way of

revision petition. By order dated 17.8.2004, the High Court

allowed the said revision petition. Aggrieved by the said order,

the above appeal has been filed by way of special leave.

4)   Heard Mr. Siddharth Luthra, learned senior counsel

appearing for the appellants and Mr. A.V. Rangam, learned

counsel appearing for respondent No.1 and Mr. Manoj Saxena,

learned counsel appearing for respondent No.2.

5)   Originally, the appellant/plaintiff filed the suit for

declaration of his exclusive right to do mining operation in the

suit property.    However, after impleadment of M/s S.K.

Sarwagi and Company as second defendant (first respondent

herein) after closing of the evidence and during the course of

argument, the plaintiff filed an application under Order VI

Rule 17 read with 151 CPC for amendment of the plaint

praying for possession over the plaint schedule mentioned

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property from the defendants and for grant of damages of Rs.

5.00 lacs in favour of the plaintiff for their mining operations

without consent of the plaintiff in the plaint schedule

property.    Though the learned Additional District Judge

allowed the application for amendment on payment of cost of

Rs. 300/- the High Court in a civil revision filed under Article

227 of the Constitution of India set aside the same and

dismissed the application for amendment which is the subject

matter in this appeal.       In order to consider whether the

appellant/plaintiff has made out a case for amendment of his

plaint, it is useful to refer Order VI Rule 17 CPC which reads

as under:-

    "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."

    The first part of the rule makes it abundantly clear that

at any stage of the proceedings, parties are free to alter or

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amend their pleadings as may be necessary for the purpose of

determining the real questions in controversy. However, this

rule is subject to proviso appended therein.        The said rule

with proviso again substituted by Act 22 of 2002 with effect

from 01.07.2002 makes it clear that after the commencement

of the trial, no application for amendment shall be allowed.

However, if the parties to the proceedings able to satisfy the

court that in spite of due diligence could not raise the issue

before the commencement of trial and the court satisfies their

explanation,   amendment      can    be   allowed     even   after

commencement of the trial. To put it clear, Order VI Rule 17

C.P.C. confers jurisdiction 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

determination of the real question of the controversy between

the parties shall be permitted to be made.               Pre-trial

amendments are to be allowed liberally than those which are

sought to be made after the commencement of the trial. As

rightly pointed out by the High Court in the former case, the

opposite party is not prejudiced because he will have an

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opportunity of meeting the amendment sought to be made. In

the latter case, namely, after the commencement of trial,

particularly, after completion of the evidence, the question of

prejudice to the opposite party may arise and in such event, it

is incumbent on the part of the Court to satisfy the conditions

prescribed in the proviso.

6)   With this background, let us consider the application

filed by the plaintiff and the orders passed by the District

Court as well as the High Court. We have already stated that

originally the suit was filed against the sole defendant and

subsequently the second defendant came on record as per the

order dated 11.07.2003. It is the case of the plaintiff that he

is the absolute owner of the suit schedule lands. It is not in

dispute that prior to filing of the suit, notices were exchanged

between the parties.    In their reply dated 18.8.2001 to the

plaintiff’s notice, it was specifically asserted that the first

respondent herein, namely M/s S.K. Sarwagi & Co. Pvt. Ltd. is

carrying on mining activities in the suit schedule lands. The

perusal of the reply notice issued by D-2 to the plaintiff, which

has been extracted by the High Court in the impugned order,

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clearly shows that the plaintiff was made known that the suit

lands were in possession of D-2 having taken them on lease

from the Government. With the said information in the reply

notice about the mining being carried on by D-2, the plaintiff

filed the said suit without impleading him for possession and

damages.

7)   The other relevant fact to be noted is the plea taken in

the written statement filed by D-1 wherein, it is specifically

stated   that   the   suit   schedule   lands   are   classified       as

poramboke lands in survey and settlement operations and

that the Government issued G.O. Ms. No. 459 (Industries and

Commerce) Department, dated 28.11.1998 leasing out an

extent of 18.35 hectares of land covered under Survey Nos.

106 and 107 of Ayitham Valasa Village in favour of A.P.

Mineral Development Corporation for mining purpose for

twenty years.    It is further averred that the Government in

G.O. Ms. No. 102 (Industries and Commerce) Department,

dated 20.2.2001 issued Orders transferring the mining lease

held by A.P. Mineral Development Corporation in favour of

M/s Sarwagi and Co. Pvt. Ltd. for the unexpired period of

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lease, i.e. upto 1.6.2019.   As rightly observed by the High

Court, it is explicit from the written statement filed by D-1

that the plaintiff was made known of the fact that the

Government issued order transferring mining lease held by

A.P. Mineral Development Corporation in favour of M/s

Sarwagi and Co. P. Ltd. (D-2) and the leased lands are in

possession and enjoyment of M/s Sarwagi & Co. P. Ltd.         As

rightly pointed out by the learned counsel for the contesting

respondent, in spite of the plaintiff being put in knowledge of

the act of the person in possession of the suit property did not

chose to implead the said M/s Sarwagi & Co. P. Ltd. (D-2)

which came on record on its own application as D-2 in the

suit. It is clear that in spite of reply notice and specific plea

taken in the written statement of D-1, the plaintiff did not

chose to take steps to get the plaint amended suitably and

instead allowed the suit to go on and examined the witnesses

on his behalf and cross-examined the witnesses produced by

the defendants.    Only during the stage of arguments, the

plaintiff came up with an application under Order VI Rule 17

seeking amendment of the pleadings.           We have already

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explained the implication of proviso to Rule 17. Though even

after commencement of the trial, parties to the proceeding are

entitled to seek amendment, in the light of the factual details

such as clear information in the reply notice prior to the filing

of the suit and specific plea in the written statement of D-1

which contained details of Government Orders leasing out the

suit property in favour of D-2, the action of the plaintiff at the

stage of argument can not be permitted.          Admittedly, the

plaintiff failed to adhere to the said recourse at the

appropriate time. Further it is relevant to point out that in the

original suit, the plaintiff prayed for declaration of his

exclusive right to do mining operations and to use and sell the

suit schedule property and in the petition filed during the

course of the arguments, he prayed for recovery of possession

and damages from the second defendant. It is settled law that

the grant of application for amendment be subject 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 action and intends to prejudice the

other party; (iii) when allowing amendment application defeats

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the law of limitation. 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. All these relevant

aspects have been duly considered by the High Court and

rightly set aside the order dated 10.3.2004 of the Additional

District Judge.

8)   In the result, we find no merit in the appeal and the

same is dismissed. There shall be no order as to costs.

                                   ........................................J.                                    (Dr. Arijit Pasayat)

                                  .........................................J. New Delhi;                         (P. Sathasivam) May 14, 2008.

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