Supreme Court of India
Dinesh Goyal @ Pappu vs Suman Agarwal (Bindal) on 24 September, 2024
Author: Sanjay Karol
Bench: Sanjay Karol, C.T. Ravikumar
NON-REPORTABLE
2024 INSC 726
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO………………………OF 2024
(Arising out of Special Leave Petition (Civil) No.30324/2019)
DINESH GOYAL @ PAPPU … APPELLANT(S)
VERSUS
SUMAN AGARWAL (BINDAL) & ORS. … RESPONDENT(S)
[
JUDGMENT
SANJAY KAROL, J.
Leave granted.
2. Impugned in this appeal is a judgment and order of the High Court of
Madhya Pradesh, Gwalior Bench, passed in M.P. No.1695 of 2018 dated 21st
August, 2019. The application filed under Order VI Rule 17 of the Code of
Civil Procedure, 19081, by respondent No.12 was allowed setting aside order
dated 14th March, 2018 passed by the 8th Civil Judge, Class-2, Gwalior,
Signature Not Verified
Digitally signed by Dr.
Naveen Rawal
Date: 2024.09.24
13:43:08 IST
Reason:
1
‘CPC’ for short
2
Hereinafter referred to as ‘the plaintiff’
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District Gwalior in Civil Suit No.241-A/2016, whereby such application
stood rejected.
3. The limited question that arises for our consideration is whether the
High Court committed an error in allowing the amendment to the plaint filed
by the present respondents.
4. The facts, shorn of unnecessary detail, as necessary for disposal of the
present appeal are:-
4.1 The appellant3 and respondents, are siblings being children of
Smt. Katoribai. The dispute relates to House No.27/1695, renumbered
as 1695/1804 situated at Gangamai Santar, Murar, District Gwalior,
M.P.4, which was purchased by way of registered sale deed dated 1 st
January, 1987.
4.2 On 14th January, 2013 Smt. Katoribai, executed a Will and
thereby bequeathed the suit property to the defendant herein. She
subsequently passed away on 5th March, 2013. As per the defendant,
the respondents recognised the Will and acted in furtherance thereof
by way of agreements dated 20th December and 28th December, 2014.
4.3 Smt. Suman Agarwal (Bindal), the plaintiff filed a suit bearing
No.241-A/2016 before 8th Civil Judge, Class-2, Gwalior (M.P.),
claiming 1/5th share in the suit property by stating that the same
3
Hereinafter referred to as ‘the defendant’
4
Hereinafter referred to as ‘the suit property’
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belonged to their father late Shri Gyan Chand Goyal. The defendantfiled a written statement on 25th July, 2016 praying that the suit be
dismissed in view of the Will executed by Smt. Katoribai.
4.4 Pursuant to an application dated 28th July, 2016 filed under
Order XI Rule 14 CPC seeking the production of the Will as well as
the Agreements, the defendant produced the same. A temporary
injunction was also ordered barring any creation of the third-party
rights.
4.5 Mutation in favour of the defendant was carried out in the
relevant records. The plaintiff filed an application under Order VI
Rule 17 read with Section 151 CPC seeking amendment of her plaint
to add a list of movable properties in the property sought to be
partitioned as part of the suit, as also questioned the genuineness of
the Will. On 26th October, 2017 leave was sought to withdraw the
said application. However, a fresh application was filed the same day,
along with an application under Order XVIII Rule 1 and 3 CPC asking
the defendant to adduce evidence at the first instance.
4.6 By order dated 14th March, 2018, the amendment application as
also the application under Order XVIII Rule 1 and 3 were rejected.
Aggrieved by the said order a miscellaneous writ petition under
Article 227 being M.P.No.1695 of 2018 was preferred by the plaintiff.
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4.7. By order dated 21st August, 2019 the High Cout vide the
impugned, allowed the application under Order VI Rule 17 CPC.
5. Hence the present appeal.
6. Order VI Rule 17 CPC, as is well-known, pertains to the amendment
of pleadings in a civil suit. It 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.”What can be understood from a reading of the above provision is that,
(a) amendment of pleadings can be allowed at any stage; (b) amendment must
be necessary to determine the “real question of controversy” “inter se
parties”; (c) if such amendment is sought to be brought after
commencement of trial the Court must, in allowing the same come to a
conclusion that in spite of best efforts on the part of the party to the suit, the
same could not have been brought before the point of time, when it was
actually brought.
7. In order to appreciate the plaint as unamended versus the amendment
sought to be introduced, we may refer to the same. Para 6A is sought to be
inserted after para 6 and certain changes are sought to be made in para 2 and
3 of the suit.
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Plaint
“ xxx xxx xxx
2. That, the father of the plaintiff and defendants late Sh.
Gyan Chandra had purchase disputed property through
registered sale deed from the seller Babulal, Mahendra Kumar
and Prem Kumar S/o late Sh. Ganeshilal Jain and disputed
property was received by the mother of the plaintiff from late
Sh.Gyan Chandra. Disputed property is recorded in the
property tax demand register of Municipal Corporation,
Gwalior in the ownership in possession of the mother of the
plaintiff Smt. Katoribai W/o late Shj.Gyan Chandra Goel and
It was Smt. Katoribai who has been regularly paying house tax
of the disputed property during her life time. Smt.Katoribai has
died on 5.3.2013. After the death of Smt. Katoribai the
plaintiffs and defendants have become owners of the disputed
property having equal shares.
3. That, disputed property is ancestral property, in which
defendant No.1 and 2 do not sole ownership. Plaintiffs and
defendant No.3 and 4 have equal share in aforesaid property
and plaintiff and defendants separately have 1/5 th shares in
disputed property. When the plaintiff has requested defendant
No.1 to provide her share in the disputed property then
defendant No.1 has got annoyed and refused to give share to
the plaintiff in the disputed property.
xxx xxx xxx
6. That, on 17.1.2015, Saturday, the son of the plaintiff
named Nilesh has passed from the sides of disputed property
during his commercial works, on which he saw that Def. No.1
and 2 Sh. Dinesh Ji and Sh. Sanjay Ji respectively have been
showing disputed property to some Yadav with an intention to
sell the property. At that time the son of I, the plaintiff has told
above person titled Yadav that his mother also has her share in
disputed property, on which above person said that disputed
property belongs to Def. No.1 and 2 and he is entering into
agreement to purchase the same from Def. No.1 and 2 and then
the son of I, the plaintiff named Nilesh has returned back to the
house and informed the plaintiff about above facts and for this
reason it became necessary for the plaintiff to present the
instant suit in order to safeguard the rights of the plaintiff.”
The following prayers were sought in the plaint:-
“1. It is declared that plaintiff has 1/5th share in property
situated at Gangamai Santar, Murar being house
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No.1695/1804, which the plaintiff is entitled to separately
receive from the defendants on the basis of metes and bounds.
2. That, disputed property be portioned on the basis of
metes and bounds 1/5th share of the plaintiff be provided to her
and defendant No.1 be restrained not to sell disputed property
without getting it partitioned either by himself or through
anybody else, not to create any kind of charge over disputed
property.
3. Any other relief, which this Hon’ble Court may deem
appropriate in the circumstances of this case be also provided
to the plaintiff. Entire suit costs be also provided.”Amendment
“ xxx xxx xxx
6A. That, Def.No.1 has made forged signature of Smt.
Katoribai on the so-called forged and fabricated will dated
14.01.2013 and has got the same verified from Notary
Sh.Govind Bharadwaj Advocate under collusion and similarly,
signature of Smt. Indra Mangal and Smt. Babita are not present
on the agreements dated 20.12.14 and 28.12.14 and Def. No.1
and 2 have fraudulently made signatures of Smt. Indra Mangal
and Smt. Babita Mangal on the above so-called fabricated
documents and Def. No.1 Dinesh Goyal @ Pappu, Def. No.2
Sanjay Goyal, Notary Sh. Govind Bharadwaj Advocate and the
so-called witnesses namely Siyaram Gupta, Suraj Kushwah
and Narendra Gupta have played lead tole in getting prepared
so-called forged and fabricated will and agreements, in respect
of which it is necessary to carry out punitive proceedings
against the entire persons as per rules”, by way of amendment.
2. That, the plaintiff after the word “That” in the first line
Para No.2 of her suit, wants to mention following contents
“immovable” and the plaintiff after the word “disputed” in line
No.4 and 8 of the same paragraph, wants to add the word
“immovable” by way of amendment. Similarly, plaintiff wants
to delete the words “ancestral” as mentioned in the first line of
Para No.3 of her suit and to mention the phrase, “belonging to
Smt. Katoribai” by way of amendment.”
8. In response to the application dated 16th January, 2018 for amendment,
the defendant submitted mainly that:-
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a) the amendment application is unduly delayed, having been
brought on 26th October, 2017 when the defendant’s response to
the suit wherein he sought for the same to be dismissed on the
ground that Smt. Katoribai had executed a Will, granting the
disputed property solely to the appellant, was filed in July, 2016.
b) he has denied any forgery or fabrication in respect of Will of
Smt. Katoribai, as also the agreement executed with the
respondents herein. It is submitted that on the one hand, the
respondents herein have questioned the Will itself, while on the
other hand, partition is sought to be made of moveable properties
as mentioned in the Will.
c) the application is not based on any subsequent event or incident
but rather the plaintiff was already aware of all relevant facts.
Further, it is stated that since the amendment is sought to be
introduced post the commencement of trial, the same is not
maintainable. In support of this contention, reliance is placed on
Vidyabai & Ors. v. Padmalatha & Anr.5
9. The Civil Court by order dated 14th March, 2018 rejected the
application observing that proceedings were well on their way. It was
observed that the application had been presented nearly a year and three
months after the presentation of the Suit, reply to which is dated 25th July
2016. Further, it was observed that the plaintiff had not shown her due
diligence, and neither was it based on any subsequent incident.
10. On appeal, the High Court observed that the plaintiff could be denied
her share in the property (1/5th as per succession) only when the defendant
5
(2009) 2 SCC 409
7|SLP(C)30324/2019
would be able to establish the genuineness of the Will. It was observed that
“For the reasons best known to the trial court, no issue in regard to the
genuineness of the Will has been framed.” The approach adopted by the civil
court was termed ‘hyper-technical’ observing that in order to do complete
justice the application should have been allowed “…specifically when the
cross-examination of the plaintiff had not begun…”. About the second
application under Order XVIII Rule 1 and 3 CPC, it was observed that since
the application to amend pleadings has been allowed by the Court, liberty
was granted to file a fresh application which would then be considered in the
light of changed circumstances.
11. At this juncture, before proceeding to the merits of the case, let us
consider the law relating to the amendments of pleadings.
11.1 The settled rule is that the Courts should adopt a liberal approach
in granting leave to amend pleadings, however, the same cannot be in
contravention of the statutory boundaries placed on such power. In
North Eastern Railway Administration, Gorakhpur v. Bhagwan Das6
it was held as under:
“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 proceedings. In Pirgonda Hongonda Patil v. Kalgonda
Shidgonda Patil [AIR 1957 SC 363] 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 in6
(2008) 8 SCC 511
8|SLP(C)30324/2019
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 (1990)
1 SCC 166.]”11.2 Over the years, through numerous judicial precedents certain
factors have been outlined for the application of Order VI Rule 17.
Recently, this Court in Life Insurance Corporation of India v. Sanjeev
Builders Pvt. Ltd. & Anr.7, after considering numerous precedents in
regard to the amendment of pleadings, culled out certain principles:-
(i) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it
does not cause injustice or prejudice to the other side. This
is mandatory, as is apparent from the use of the word
“shall”, in the latter part of Order VI Rule 17 of the CPC.
(ii) In the following scenario such applications should be
ordinarily allowed if the amendment is for effective and
proper adjudication of the controversy between the parties
to avoid multiplicity of proceedings, provided it does not
result in injustice to the other side.
(iii) Amendments, while generally should be allowed, the same
should be disallowed if –7
2022 SCC OnLine SC 1128
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(a) By the amendment, the parties seeking amendment
does not seek to withdraw any clear admission made by
the party which confers a right on the other side.
(b) The amendment does not raise a time-barred claim,
resulting in the divesting of the other side of a valuable
accrued right (in certain situations)
(c) The amendment completely changes the nature of
the suit;
(d) The prayer for amendment is malafide,
(e) By the amendment, the other side should not lose a
valid defence.
(iv) Some general principles to be kept in mind are –
(I) The court should avoid a hyper-technical approach;
ordinarily be liberal, especially when the opposite party
can be compensated by costs.
(II) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in
the plaint or introduce an additional or a new approach.
(III) The amendment should not change the cause of
action, so as to set up an entirely new case, foreign to the
case set up in the plaint.
12. The question that we have to consider, in the above backdrop is
whether the High Court fell in error in allowing the application seeking leave
to amend pleadings, in contravention of the statutory language.
13. By way of the amendment, what is sought to be done is, to question
the validity of the Will, on the basis of which, the defendant sought to have
the suit dismissed, while also expanding the scope of adjudication of the suit
10|SLP(C)30324/2019
to include movable property. It has to be then, demonstrated that – (a)
determination of the genuineness of the Will is the necessary course of action
in determining the issues inter se the parties; and (b) given the finding of the
court below that the application was presented post the commencement of
the trial, it could not have been, despite due diligence, presented prior to such
commencement.
14. Be that as it may, the overarching Rule is that a liberal approach is to
be adopted in consideration of such applications. [See also: Sanjeev Builders
(supra); Rakesh Kumar Agarwal v. Rajmala Exports Pvt. Ltd.8; Usha
Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors.9; B.K. Narayana
Pillai v. Parmeswaran Pillai & Anr.10]
15. In our considered view, the two aspects required to be demonstrated in
accordance with the statutory language in the present facts, do not stand on
the same footing. The first issue will necessarily have to weigh over the
second.
16. The scope of the dispute before us is limited to a procedural aspect. In
the larger scheme, this dispute pertains to succession. If there is a Will, it has
to be honoured. If one of the parties, who will be affected by the Will coming
into effect, challenges it on one ground or the other, the process of succession
cannot go forward without determination of the dispute regarding the Will.
8
(2012) 5 SCC 337
9
(2007) 5 SCC 602
10
(2000) 1 SCC 712
11|SLP(C)30324/2019
17. Any and all delays in judicial processes should be avoided and
minimised to the largest extent possible, and should generally be, and are
rightly frowned upon. However, not in all cases can delay determine the fate
of a Suit. The defendant submits that the time gap between submitting the
written statement to the Suit and the presentation of the application seeking
leave to amend is unexplained. If this argument of the defendant is accepted,
the question of Will shall remain undecided or at best will be decided with
great delay. The trial which has admittedly already commenced, would be
stalled by way of a challenge to the framing of issues which, in turn, would
not be in consonance with the object of Order VI Rule 17 of CPC which is
aimed at preventing multiplicity or multiple avenues of litigation, subsumed
under the umbrella of one dispute.
18. Keeping in view the above, along with the fact that without
determination of the question of Will and its genuineness, the partition of the
Suit property would not be possible, we do not find any infirmity in the order
of the High Court, allowing the amendment setting aside refusal of the Trial
Court to grant such amendment.
19. The amendment is allowed. The appeal is dismissed. The Trial Court
shall decide all issues including the genuineness of the Will, expeditiously.
It stands clarified that the discussion hereinabove is only in connection with
the application under Order VI Rule 17 CPC and no opinion, whatsoever, has
been expressed on the merits of the case. The Registry to forward a copy of
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this judgment to the Registrar of the High Court who shall ensure its passage
thereafter to the concerned Trial Court.
Pending application(s), if any, shall stand disposed of.
…………….…………J.
(C.T. RAVIKUMAR )
…………………….…J.
(SANJAY KAROL)
September 24, 2024;
New Delhi.
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