2024 INSC 151 Page 1 of 15

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2886 OF 2012

BASAVARAJ … Appellant(s)

VERSUS

INDIRA AND OTHERS … Respondent(s)

J U D G M E N T

Rajesh Bindal, J.

1. Vide impugned order

1

passed by the High Court

2

, an

application filed by respondents No. 1 and 2/plaintiffs for amendment of

the plaint was allowed subject to costs of ₹2,000/-.

2. Briefly, the facts available on record are that respondents No.

1 and 2 filed a suit

3

for partition of the ancestral property belonging to

their grand father pleading that no actual partition of the property has

1

Order dated 18.08.2010 passed in W.P. No. 82086 of 2010

2

High Court of Karnataka, Circuit Bench at Gulbarga

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Original Suit No. 151 of 2005

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ever taken place. When the suit was at the fag end, an application was

filed by respondents No. 1 and 2 seeking amendment of the plaint. The

amendment sought was to add prayer in the suit for a declaration that an

earlier compromise decree dated 14.10.2004 was null and void. As prayer

was not made earlier, the court fee required thereon was also sought to

be affixed. The ground on which the amendment was sought was that due

to oversight and mistake, the respondents No. 1 and 2/plaintiffs were

unable to seek the relief of declaration. No prejudice as such would be

caused to the defendants as limited relief is for fair partition of the

ancestral property. The Trial Court

4

dismissed the application. However,

when the order

5

was challenged before the High Court, the same was set

aside and the amendment prayed for by the plaintiffs was allowed subject

to payment of costs.

3. Learned counsel for the appellant submitted that in the case in

hand, there was a family partition in Original Suit No. 401 of 2003 filed by

Smt. Mahadevi and Smt. Sharnamma , wife and daughter-in-law

respectively of defendant No.1/Shivasharnappa, impleading the plaintiffs

and the defendants as party. A compromise decree dated 14.10.2004 was

4

First Additional Civil Judge (Senior Division) at Gulbarga

5

Order dated 31.05.2010

Page 3 of 15

passed by the Lok Adalat, District Legal Services Authority, Gulbarga.

Thereafter, respondents No. 1 and 2 filed a fresh suit in 2005 seeking

partition of the ancestral property. Though in the suit pleading was there

with reference to the earlier compromise decree, however for the reasons

best known to the plaintiffs, no challenge was made to the same. As a

result of the order passed by the High Court, the nature of the suit was

changed from partition to declaration, which is impermissible.

3.1 Further in terms of proviso to Order VI Rule 17 CPC, no

amendment could be allowed after commencement of the trial. In the case

in hand, the suit was at the fag end, as fixed for arguments.

3.2 It was further submitted that the compromise decree was

passed on 14.10.2004. In terms of the provisions of Order XXIII Rule 3

CPC, the same could be challenged only before the same Court and not

before any other Court.

3.3 He further contended that there was a specific stand taken by

the appellant/defendant No. 2 in the written statement that there being a

compromise decree in existence, no relief may be admissible to

respondents No. 1 and 2, unless that decree is challenged. The written

statement was filed in August 2005, still no steps taken by the respondents

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No. 1 and 2 in that direction. Part of the suit property having been sold, an

amendment was carried out in the plaint in July 2006 to implead the

subsequent purchaser. Even at that stage, this relief was not sought.

3.4 It was further contended that the relief of declaration of

compromise decree being null and void prayed for by way of amendment

otherwise also was time barred as the compromise decree was passed on

14.10.2004. The application for amendment was filed on 08.02.2010. Even

the court fee was sought to be affixed at the time of filing of application

for amendment.

3.5 The application filed by respondents No. 1 and 2 did not meet

the pre-conditions laid down in Order VI Rule 17 CPC for permitting

respondents No. 1 and 2 to amend the pleadings at the fag end of the trial.

No due diligence was pleaded. All what was stated was that there was

oversight on the part of respondents No. 1 and 2/plaintiffs.

3.6 Referring to the parties who were there in the compromise

decree, it was argued that some of them are not parties in the suit in

question, hence otherwise also challenge to the compromise decree may

not be maintainable.

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3.7 In support of the arguments, reliance was placed upon the

judgments of this Court in Revajeetu Builders and Developers v.

Narayanaswamy and sons and others

6

and Vidyabai and others v.

Padmalatha and another

7

4. In response, learned counsel for respondents No. 1 and 2

submitted that it was merely an oversight mistake which occurred at the

time of filing of the suit and at the subsequent stage for which the

amendment was prayed for by respondents No. 1 and 2. It is not a case

where the pleadings to that effect are not available on record.

Respondents No. 1 and 2 had fairly pleaded about the earlier compromise

decree. Inadvertently, the prayer for declaration thereof as null and void

could not be made. The court fee also could not be deposited. No fresh

evidence is to be led. The case is at the arguments stage. The same can

be argued with mere re-framing of the issues. It will avoid multiplicity of

litigation and ultimately complete justice will be done amongst the

parties, who are merely praying for partition of the ancestral property.

The other side can be compensated with costs, as was even done by the

High Court. No prejudice as such will be caused to the appellant.

6

(2009) 10 SCC 84

7

(2009) 2 SCC 409

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Substantial justice will be done to the parties. In support of the arguments,

reliance was placed upon a judgment of this Court in Dondapati

Narayana Reddy v. Duggireddy Venkatanarayana Reddy and others

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and Estralla Rubber v. Dass Estate (P) Ltd.

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5. Heard learned counsel for the parties and perused the

relevant referred record.

6. It is a case in which the appellant has been forced into

avoidable unnecessary litigation to rush to this Court. The suit was filed

by respondents No. 1 and 2 in 2005 seeking partition of the ancestral

property. It was specifically pleaded in the suit that there was a

compromise decree between the parties. However, as may be the advice

to respondents No. 1 and 2, despite there being a compromise decree

existing between the parties, no prayer was made in the suit with

reference thereto, if any grievance was there. It remained simpliciter a

suit for partition. A specific stand was taken by the appellant in the written

statement to the effect that the suit is not maintainable unless cancellation

of the compromise decree is prayed for as the same would operate as res-

judicata. The written statement was filed in August 2005. Despite the

8

(2001) 8 SCC 115

9

(2001) 8 SCC 97

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specific pleading of the appellant, the respondents No. 1 and 2 did not

take any steps.

6.1. During the pendency of the suit, an amendment was carried

out by respondents No. 1 and 2 to implead respondent No. 4 in the suit

who was the purchaser of a part of the suit property. The same was

allowed on 01.07.2006. Thereafter, trial of the suit continued. When it

reached at the stage of arguments in February 2010 an application was

filed by respondents No. 1 and 2 seeking amendment of the plaint. The

reasons assigned to file the belated application seeking amendment of

the plaint were that due to oversight and by mistake, the respondents

No.1 and 2 failed to seek relief of declaration of the compromise decree

being null and void and were unable to deposit the court fee.

7. The law with reference to challenge to a compromise decree

is well settled. It was opined in Pushpa Devi Bhagat (Dead) through

L.R. Sadhna Rai (Smt.) v. Rajinder Singh and others

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that (i) appeal

is not maintainable against a consent decree; (ii) no separate suit can be

filed; (iii) consent decree operates as an estoppel and binding unless it is

set aside by the court by an order on an application under the proviso to

10

(2006) 5 SCC 566

Page 8 of 15

Order XXIII Rule 3 C.P.C.; and (iv) the only remedy available to a party to

a consent decree is to approach the Court which recorded the

compromise as it was opined to be nothing else but a contract between

the parties superimposed with the seal of approval of the Court. Relevant

part of paragraph No. 17 thereof is extracted below:

“17. The position that emerges from the amended

provisions of Order 23 can be summed up thus:

(i) No appeal is maintainable against a consent

decree having regard to the specific bar contained

in section 96(3) CPC.

(ii) No appeal is maintainable against the order of

the court recording the compromise (or refusing to

record a compromise) in view of the deletion of

clause (m) Rule 1 Order 43.

(iii) No independent suit can be filed for setting

aside a compromise decree on the ground that the

compromise was not lawful in view of the bar

contained in Rule 3A.

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(iv) A consent decree operates as an estoppel and is

valid and binding unless it is set aside by the court

which passed the consent decree, by an order on an

application under the proviso to Rule 3 of Order 23.

Therefore, the only remedy available to a party to a

consent decree to avoid such consent decree, is to

approach the court which recorded the compromise and

made a decree in terms of it, and establish that there was

no compromise. In that event, the court which recorded

the compromise will itself consider and decide the

question as to whether there was a valid compromise or

not. This is so because a consent decree, is nothing but

contract between parties superimposed with the seal of

approval of the court. The validity of a consent decree

depends wholly on the validity of the agreement or

compromise on which it is made…”

8. Proviso to Order VI Rule 17 CPC provides 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

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could not have raised the matter before the commencement of trial. In

the case in hand, this is not even the pleaded case of respondents No. 1

and 2 before the Trial Court in the application for amendment that due

diligence was there at the time of filing of the suit in not seeking relief

prayed for by way of amendment. All what was pleaded was oversight.

The same cannot be accepted as a ground to allow any amendment in the

pleadings at the fag end of the trial especially when admittedly the facts

were in knowledge of the respondents No. 1 and 2/plaintiffs.

8.1. The relevant paragraphs of the application seeking

amendment of the plaint are reproduced hereunder:

“2. That, due to over sight and by mistake the Plaintiff was

unable to sought relief declaration of decree as null and void

and unable to pay required court fee some unavoidable

circumstances and the proposed amendment is very essential

for deciding the matter in dispute.

3. xxx

4. That, if the proposed amendment is allowed no

prejudice will be cause to the other side, on the other hand if

it is not allowed then the deponent will be put to great loss and

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will also leads multiplicity of litigation’s. Hence it is just and

proper to allow the proposed amendment to meet the ends of

justice.”(sic)

9. This Court in M. Revanna v. Anjanamma (Dead) by legal

representatives and others

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opined that an application for amendment

may be rejected if it seeks to introduce totally different, new and

inconsistent case or changes the fundamental character of the suit. Order

VI Rule 17 C.P.C. prevents an application for amendment after the trial

has commenced unless the Court comes to the conclusion that despite

due diligence the party could not have raised the issue. The burden is on

the party seeking amendment after commencement of trial to show that in

spite of due diligence such amendment could not be sought earlier. It is

not a matter of right. Paragraph No. 7 thereof is extracted below:

“7. Leave to amend may be refused if it introduces a

totally different, new and inconsistent case, or challenges

the fundamental character of the suit. The proviso to

Order 6 Rule 17 CPC virtually prevents an application for

amendment of pleadings from being allowed after the

11

(2019) 4 SCC 332

Page 12 of 15

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

the trial. The proviso, to an extent, curtails absolute

discretion to allow amendment at any stage. Therefore,

the burden is on the person who seeks an amendment

after commencement of the trial to show that in spite of

due diligence, such an amendment could not have been

sought earlier. There cannot be any dispute that an

amendment cannot be claimed as a matter of right, and

under all circumstances. Though normally amendments

are allowed in the pleadings to avoid multiplicity of

litigation, the court needs to take into consideration

whether the application for amendment is bona fide or

mala fide and whether the amendment causes such

prejudice to the other side which cannot be compensated

adequately in terms of money.”

(emphasis supplied)

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10. Initially, the suit was filed for partition and separate

possession. By way of amendment, relief of declaration of the

compromise decree being null and void was also sought. The same would

certainly change the nature of the suit, which may be impermissible.

11. This Court in Revajeetu’s case (supra) enumerated the factors

to be taken into consideration by the court while dealing with an

application for amendment. One of the important factor is as to whether

the amendment would cause prejudice to the other side or it

fundamentally changes the nature and character of the case or a fresh suit

on the amended claim would be barred on the date of filing the

application.

12. If the amendment is allowed in the case in hand, certainly

prejudice will be caused to the appellant. This is one of the important

factors to be seen at the time of consideration of any application for

amendment of pleadings. Any right accrued to the opposite party cannot

be taken away on account of delay in filing the application.

12.1 In the case in hand, the compromise decree was passed on

14.10.2004 in which the plaintiffs were party. The application for

amendment of the plaint was filed on 08.02.2010 i.e. 5 years and 03

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months after passing of the compromise decree, which is sought to be

challenged by way of amendment. The limitation for challenging any

decree is three years (Reference can be made to Article 59 in Part-IV of

the Schedule attached to the Limitation Act, 1963). A fresh suit to

challenge the same may not be maintainable. Meaning thereby, the relief

sought by way of amendment was time barred. As with the passage of

time, right had accrued in favour of the appellant with reference to

challenge to the compromise decree, the same cannot be taken away. In

case the amendment in the plaint is allowed, this will certainly cause

prejudice to the appellant. What cannot be done directly, cannot be

allowed to be done indirectly.

13. Further, a perusal of the memo of parties in the suit in question

and in the compromise decree shows that the plaintiffs i.e. Sharnamma @

Mahananda wife of Basvaraj and Mahadevi wife of Shivsharnappa Nasi in

Original Suit No. 401 of 2003 are not party to the present litigation. Even

if on any ground the amendment could be permitted, still no relief could

be claimed with reference to setting aside of the compromise decree as

all the parties thereto were not before the Court in the suit in question.

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14. For the reasons mentioned above, the present appeal is

allowed. The impugned order passed by the High Court is set aside. The

application filed for amendment of the plaint is dismissed. The appellant

shall be entitled to cost of the proceedings, which are assessed at

₹1,00,000/- to be paid jointly or severally by respondents No. 1 and 2. The

appellant shall be paid the amount of cost on the next date of hearing

before the Trial Court by way of demand draft.

……………….……………..J.

(C.T. RAVIKUMAR)

……………….……………..J.

(RAJESH BINDAL)

New Delhi

February 29, 2024.