In a dispute over title and possession of agricultural land, the Supreme Court has held that the discovery of a compromise decree, to which the original plaintiff was not a party, satisfied the due diligence requirement under the proviso to Order VI Rule 17 of the CPC, and the proposed amendment did not fundamentally alter the nature and character of the suit. The Supreme Court accepted the plea of due diligence under the proviso to Order VI Rule 17 of the CPC, holding that the original plaintiff’s discovery of the compromise decree only upon obtaining certified copies of the plaint and final decree, constituted a sufficient explanation for not raising the matter before commencement of the trial.
The Apex Court held that the proposed amendment did not fundamentally alter the nature and character of the suit, since the original suit was founded upon the plaintiff’s claim to title, possession and related reliefs in respect of the suit property, and the proposed amendment merely sought to place before the Court facts concerning a compromise decree which affected a portion of that very property.
Reiterating the well-settled principles governing Order VI Rule 17 of the CPC, the Apex Court applied the ‘real controversy test’ and held that amendments necessary for determining the real questions in controversy between the parties ought ordinarily to be permitted, provided they do not alter the basic nature of the suit, and a change in the relief sought does not, by itself, amount to a change in the nature of the suit.
The Court declined to finally determine the questions of limitation and the applicability of Order XXIII Rule 3A of the CPC at the amendment stage, holding that where the plea of limitation is arguable and depends upon disputed facts, including the date or manner in which the plaintiff acquired knowledge of the relevant document or transaction, the amendment need not necessarily be rejected at the threshold, and such objections were left open for consideration by the trial Court.
Therefore, while allowing the amendment, the Court imposed costs of Rs. 25,000 on the appellants payable to the contesting respondents within two weeks, and granted liberty to the respondents to file additional written statements, thereby balancing the considerable delay in seeking the amendment and the inconvenience caused to the respondents against the necessity of a complete and effective adjudication of the controversy and avoidance of multiplicity of proceedings.
Briefly, the appellants are the legal heirs of the original plaintiff, Rabindranath Sahoo, who had filed a civil suit before the Senior Civil Judge, Second Court, Cuttack, seeking a declaration of his right, title and interest over the suit property, recovery of possession, and rectification of two registered sale deeds of 1971 and 1978, under which he had purchased different plots.
The suit property had changed hands through a series of sale deeds executed by different defendants over the years, and upon Defendant Nos. 9 and 10 disclosing their title in their written statement, the original plaintiff sought to amend the plaint to plead that one plot was the exclusive property of Mayadhar Mohapatra under a mutual partition.
Subsequently, the original plaintiff filed a further application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, stating that upon conducting a search in the office of the Tahsildar, Niali, he came to know of a compromise decree passed in suit of 1998, to which he was not a party, and sought to incorporate foundational pleadings relating to that suit and a declaration that the final decree therein was null and void.
During the pendency of the amendment application, the original plaintiff died and his legal heirs, the present appellants, were brought on record. The trial Court rejected the proposed amendment vide order dated Sep 21, 2022, and the High Court of Orissa at Cuttack declined to interfere with that order.
A Two-Judge Bench comprising Justice R. Mahadevan and Justice B.V. Nagarathna observed that the controversy before it essentially concerned the permissibility of the amendment sought under Order VI Rule 17 of the CPC, and that since the application for amendment was admittedly filed after commencement of the trial, the proviso to Order VI Rule 17 was attracted.
The Court noted that the original suit itself concerned the right, title and interest in and possession of the very property which formed the subject matter of the proposed amendment, and that the proposed pleading relating to the compromise decree in transfer suit of 1998 arose from the allegation that the said decree affected a portion of the very suit property.
The Court further observed that the original plaintiff claimed to have obtained certified copies of the plaint and final decree in suit of 1998 only on June 22, 2020, and that the written statement filed by Defendant Nos. 9 and 10 had not disclosed the source of title of their vendors, which were relevant circumstances in assessing the plea of due diligence.
The Court held that the explanation furnished by the appellants could not, at that stage, be characterised as a mere omission, inadvertence or negligence, and that the subsequent discovery of the compromise proceedings, coupled with the assertion that the original plaintiff was not a party to those proceedings and that the source of title of the vendors was not disclosed in the written statement, provided a sufficient basis for accepting the plea of due diligence for the purposes of the proviso to Order VI Rule 17 of the CPC.
The Court further observed that the proposed amendment did not fundamentally alter the nature and character of the suit, since the original suit was founded upon the plaintiff’s claim to title, possession and related reliefs in respect of the suit property, and the proposed amendment merely sought to place before the Court facts concerning a compromise decree which affected a portion of that very property. The Court noted that the date of knowledge of the compromise decree itself was a matter in dispute and had not been conclusively determined, and that it would therefore be inappropriate to finally determine the question of limitation while considering the application for amendment.
The Court also observed that the considerable delay in seeking the amendment and the inconvenience that may be caused to the respondents could not be disregarded, and that the appropriate course was to permit the amendment subject to costs while preserving the respondents’ right to file additional pleadings and raise all objections available to them in law.
