REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NO. 4 OF 2009
IN
ORIGINAL SUIT NO. 6 OF 2004
State of Madhya Pradesh .... Applicant(s)/
Plaintiff
Versus
Union of India & Anr. .... Respondent(s)/
Defendants
J U D G M E N T
P. Sathasivam, J.
1) In the year 2004, the State of Madhya Pradesh has filed
Original Suit No. 6 of 2004 before this Court under Article 131
of the Constitution of India calling for the records relating to
the impugned Notifications/Orders dated 02.11.2004 and
04.11.2004 issued by the Ist Defendant-Union of India under
Sections 58(3) and 58(4) of the Madhya Pradesh Re-
organisation Act, 2000 (hereinafter referred to as “MPR Act”),
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notifying the date of dissolution of the M.P. Electricity Board
(in short “the MPEB”) for the undivided State of Madhya
Pradesh and apportioning its assets, rights and liabilities
between the successor Electricity Boards for the reorganized
States of Madhya Pradesh and Chhattisgarh and to declare
them null and void as the same are unconstitutional and for
certain other reliefs.
2) In the said suit, the plaintiff-State of Madhya Pradesh
filed an application for amendment of plaint being I.A. No.4 of
2009 seeking, inter alia, the amendment to the effect that
Sections 58(3) and 58(4) of the MPR Act are violative of Article
14 of the Constitution of India inasmuch as it enables the
Central Government to determine without any guidelines the
manner of exercise of power while deciding the basis of
apportionment of the assets and liabilities of the successor
Boards.
3) Ist Defendant-Union of India, apart from disputing its
maintainability on delay and laches also contested on merits.
4) 2nd Defendant-State of Chhattisgarh has objected to the
amendment on the ground that the same is totally
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misconceived and untenable in law and that no recourse
whatsoever can be permitted to challenge the validity of a
Central law under the exclusive jurisdiction of this Court
under Article 131 of the Constitution of India. The State of
Chhattisgarh has also contended that the plaintiff-State of
M.P., on the one hand is seeking a prayer that Ist Defendant
must perform its duty in accordance with the Statute and, on
the other hand, is challenging the validity of the very same
Statute and, therefore, it is liable to be dismissed.
5) Heard Mr. C.S. Vaidyanathan, learned senior counsel for
the applicant/plaintiff-State of Madhya Pradesh, Mr. H.P.
Raval, learned Additional Solicitor General for Respondent No.
1/Ist Defendant-Union of India and Mr. Ravi Shankar Prasad,
learned senior counsel for Respondent No. 2/2nd Defendant-
State of Chhattisgarh.
6) In view of the fact that at present we are concerned with
I.A.No.4 of 2009 – application for amendment of plaint, there
is no need to traverse all the factual details as stated in the
plaint and written statement. However, it is relevant to point
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out the reliefs prayed for by the plaintiff in the main suit
which are as under:
“(a) Call for the records relating to the impugned
Notifications/Orders dated 02.11.2004 and
04.11.2004 and declare the same as null and void as
the same is unconstitutional and in violation of Article
14 of the Constitution;
(b) Direct 1st defendant to dissolve MPEB in consonance
with other orders/directions dated 12.04.2001,
04.12.2001 and 23.05.2003 passed by the 1st
defendant under Section 58(4) of MPRA;
(c) Direct the 1st Defendant by way of mandatory
injunction to perform its constitutional and the
statutory duty to lay down proper criteria for
apportionment of assets, rights and liabilities in
accordance with law and to ensure equitable, just, fair
and reasonable apportionment of assets, rights and
liabilities amongst the successor Boards on the basis
of revenue potential so as to avoid undue hardship
and disadvantage to any of the successor Boards; and
(d) Pass any other order and/or direction, as this Hon’ble
Court may deem fit and proper in the facts and
circumstances of the case.”
7) In the present application, i.e., I.A. No.4 of 2009, the
applicant-State of M.P. has prayed for amendment of the
plaint by adding the following relief:
“(b) to permit additional relief to be incorporated in the
Plaint viz., declare Sections 58(3) and 58(4) of the Madhya
Pradesh State Re-organisation Act, 2000 is being
unconstitutional, arbitrary and violative of Article 14 of the
Constitution”
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8) In order to consider the claim of the plaintiff and the
opposition of the defendants, it is desirable to refer the
relevant provisions. Order VI Rule 17 of the Code of Civil
Procedure, 1908 (in short `the Code’) enables the parties to
make amendment of the plaint 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 above provision deals with amendment of pleadings. By
Amendment Act 46 of 1999, this provision was deleted. It has
again been restored by Amendment Act 22 of 2002 but with an
added proviso to prevent application for amendment being
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 proviso, to some extent, curtails absolute discretion to
allow amendment at any stage. Now, if application is filed
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after commencement of trial, it must be shown that in spite of
due diligence, such amendment could not have been sought
earlier. The purpose and object of Order VI Rule 17 of the
Code is to allow either party to alter or amend his pleadings in
such manner and on such terms as may be just. Amendment
cannot be claimed as a matter of right and under all
circumstances, but the Courts while deciding such prayers
should not adopt a hyper-technical approach. Liberal
approach should be the general rule particularly, in cases
where the other side can be compensated with costs.
Normally, amendments are allowed in the pleadings to avoid
multiplicity of litigations.
9) Inasmuch as the plaintiff-State of Madhya Pradesh has
approached this Court invoking the original jurisdiction under
Article 131 of the Constitution of India, the Rules framed by
this Court, i.e., The Supreme Court Rules, 1966 (in short `the
Rules) have to be applied to the case on hand. Order XXVI
speaks about “Pleadings Generally”. Among various rules, we
are concerned about Rule 8 which reads as under:
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“The Court may, at any stage of the proceedings, allow
either party to amend his pleading in such manner and on
such terms as may be just, but only such amendments
shall be made as may be necessary for the purpose of
determining the real question in controversy between the
parties.”
The above provision, which is similar to Order VI Rule 17 of
the Code prescribes that at any stage of the proceedings, the
Court may allow either party to amend his pleadings.
However, it must be established that the proposed amendment
is necessary for the purpose of determining the real question
in controversy between the parties.
10) This Court, while considering Order VI Rule 17 of the
Code, in several judgments has laid down the principles to be
applicable in the case of amendment of plaint which are as
follows:
(i) Surender Kumar Sharma v. Makhan Singh, (2009)
10 SCC 626, at para 5:
“5. As noted hereinearlier, the prayer for amendment was
refused by the High Court on two grounds. So far as the first
ground is concerned i.e. the prayer for amendment was a
belated one, we are of the view that even if it was belated,
then also, the question that needs to be decided is to see
whether by allowing the amendment, the real controversy
between the parties may be resolved. It is well settled that
under Order 6 Rule 17 of the Code of Civil Procedure, wide
powers and unfettered discretion have been conferred on the
court to allow amendment of the pleadings to a party in such
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a manner and on such terms as it appears to the court just
and proper. Even if, such an application for amendment of
the plaint was filed belatedly, such belated amendment
cannot be refused if it is found that for deciding the real
controversy between the parties, it can be allowed on
payment of costs. Therefore, in our view, mere delay and
laches in making the application for amendment cannot be a
ground to refuse the amendment.”
(ii) North Eastern Railway Administration, Gorakhpur v.
Bhagwan Das (dead) by LRS, (2008) 8 SCC 511, at
para16:
“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 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.”
(iii) Usha Devi v. Rijwan Ahamd and Others, (2008) 3 SCC
717, at para 13:
“13. Mr Bharuka, on the other hand, invited our attention to
another decision of this Court in Baldev Singh v. Manohar
Singh. In para 17 of the decision, it was held and observed
as follows: (SCC pp. 504-05)
“17. Before we part with this order, we may also notice
that proviso to Order 6 Rule 17 CPC provides that
amendment of pleadings shall not be allowed when the trial
of the suit has already commenced. For this reason, we have
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examined the records and find that, in fact, the trial has not
yet commenced. It appears from the records that the parties
have yet to file their documentary evidence in the suit. From
the record, it also appears that the suit was not on the verge
of conclusion as found by the High Court and the trial court.
That apart, commencement of trial as used in proviso to
Order 6 Rule 17 in the Code of Civil Procedure must be
understood in the limited sense as meaning the final hearing
of the suit, examination of witnesses, filing of documents
and addressing of arguments. As noted hereinbefore, parties
are yet to file their documents, we do not find any reason to
reject the application for amendment of the written
statement in view of proviso to Order 6 Rule 17 CPC which
confers wide power and unfettered discretion on the court to
allow an amendment of the written statement at any stage of
the proceedings.”
(iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and
Others, (2006) 4 SCC 385, at paras 15 & 16:
“15. The object of the rule is that the courts should try the
merits of the case that come before them and should,
consequently, allow all amendments that may be necessary
for determining the real question in controversy between the
parties provided it does not cause injustice or prejudice to
the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first
part is discretionary (may) and leaves it to the court to order
amendment of pleading. The second part is imperative (shall)
and enjoins the court to allow all amendments which are
necessary for the purpose of determining the real question in
controversy between the parties.”
(v) Revajeetu Builders and Developers v.
Narayanaswamy and Sons and Others, (2009) 10
SCC 84, at para 63:
“63. On critically analysing both the English and Indian
cases, some basic principles emerge which ought to be taken
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into consideration while allowing or rejecting the application
for amendment:
(1) whether the amendment sought is imperative for proper
and effective adjudication of the case;
(2) whether the application for amendment is bona fide or
mala fide;
(3) the amendment should not cause such prejudice to the
other side which cannot be compensated adequately in
terms of money;
(4) refusing amendment would in fact lead to injustice or
lead to multiple litigation;
(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case;
and
(6) as a general rule, the court should decline amendments if
a fresh suit on the amended claims would be barred by
limitation on the date of application.
These are some of the important factors which may be kept
in mind while dealing with application filed under Order 6
Rule 17. These are only illustrative and not exhaustive.”
The above principles make it clear that Courts have ample
power to allow the application for amendment of the plaint.
However, it must be satisfied that the same is required in the
interest of justice and for the purpose of determination of real
question in controversy between the parties. We have already
pointed out the relief prayed for in the plaint. According to the
plaintiff-State of Madhya Pradesh, the Notifications/Orders
dated 02.11.2004 and 04.11.2004 have to be declared null
and void since the same are unconstitutional and in violation
of Article 14 of the Constitution of India. The other relief,
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prayed for by the plaintiff, is to direct the Ist Defendant-Union
of India to dissolve the MPEB in consonance with the
orders/directions dated 12.04.2001, 04.12.2001 and
23.05.2003 passed by the Union of India under Section 58(4)
of MPR Act. In addition, the plaintiff-State of M.P. has also
prayed for to direct the Union of India by way of mandatory
injunction to perform its constitutional and statutory duty to
lay down proper criteria for apportionment of assets, rights
and liabilities in accordance with law and to ensure equitable,
just, fair and reasonable apportionment of assets, rights and
liabilities amongst the successor Boards on the basis of
revenue potential so as to avoid undue hardship and
disadvantage to any of the successor Boards.
11) Mr. C. S. Vaidyanathan, learned senior counsel for the
plaintiff-State of M.P., by drawing our attention to various
averments in the plaint relating to the purported exercise of
power by the Central Government submitted that the same
being arbitrary, unjust and unfair had resulted in serious
anomalies in the apportionment of assets and liabilities by the
impugned Notifications/Orders dated 02.11.2004 and
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04.11.2004. He also pointed out that the impugned
Notifications/Orders have resulted in an unequal division of
generating capacity, created a huge gap in demand and
supply, affecting the power supply and also the finances of the
Board of the plaintiff-State. He further pointed out that
Sections 58(3) and 58(4) of MPR Act provided unguided powers
to the Central Government to determine the apportionment of
assets, rights and liabilities between the successor States of
M.P. and Chhattisgarh. According to him, these provisions do
not provide for the Central Government to record reasons in
support of its decision. In the absence of any guidelines, any
decision by the Central Government is arbitrary, unjust,
unfair, unreasonable, unconstitutional and violative of Article
14 of the Constitution of India, in particular. In those
circumstances, according to him, the amendment of plaint
sought for is reasonable and acceptable.
12) As against the above claim, Mr Rawal, learned ASG,
appearing for the Union of India submitted that there is no
merit in the claim for amendment of plaint. At any rate, the
amendment sought for is not maintainable at this juncture.
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13) Mr. Ravi Shankar Prasad, learned senior counsel for
second Defendant-State of Chhattisgarh strongly objected the
proposed amendment both on the ground of delay and laches
and on merits. Mr. Prasad highlighted that verification of the
Court proceedings would show that the pleadings in the suit
are complete, evidence by way of affidavits has been filed,
issues for adjudication have been framed, admission/denial of
documents filed in support of the pleadings have taken place
and the suit is now to be finally heard by this Court. He also
contended that the application at this belated stage is not
maintainable.
14) It is not in dispute that after complying all the formalities
even as early as on 16.04.2007, this Court has framed issues
and as rightly pointed out by Mr Prasad, the suit could have
been disposed of by that time, however, the plaintiff has filed
the present application for amendment of plaint at this belated
stage. It is true that there is no embargo in Order VI Rule 17
of the Code and in Order XXVI Rule 8 of the Rules which alone
govern the procedural aspects. However, the fact remains that
the plaintiff has not assigned any reason for not taking steps
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when the State had approached this Court under Article 131
by way of a suit even in the year 2004 and waited till 2009.
15) The next objection of the learned counsel for the 2nd
Defendant is that in the light of the language used in Rule 8 of
Order XXVI of the Rules, the present application for
amendment substantially alters the nature of lis/claim
originally preferred by the plaintiff-State of M.P. We have
already adverted to the reliefs prayed for in the suit. The main
relief relates to scope and manner of exercise of power by the
Central Government under Sections 58(3) and 58(4) of the
MPR Act qua dissolution of the erstwhile MPEB and
apportionment of its assets, rights and liabilities between the
successor Electricity Boards of the reorganized States. The
claim was that the purported exercise of power by the Central
Government was arbitrary, unjust and unfair and had resulted
in serious anomalies in apportionment of assets and liabilities
between the two Boards by the impugned Notification/Orders
dated 02.11.2004 and 04.11.2004. What was challenged was
the manner of exercise of power by the Central Government
and not the statutory provisions in the form of Sections 58(3)
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and 58(4) of the MPR Act which vested such powers in the
Central Government. As rightly pointed out by the learned
senior counsel for the defendants throughout the pendency of
the suit since 01.12.2004, no issue whatsoever was ever
raised by the plaintiff as to the validity or constitutionality of
these statutory provisions.
16) It is brought to our notice that MPEB being the successor
Electricity Board for the reorganized State of M.P., a necessary
party to the present lis, had filed a separate Writ Petition being
No. 675 of 2004 before this Court under Article 32 of the
Constitution of India where identical pleadings and prayers
were made. There is no serious dispute as to the relief prayed
in the said writ petition. Though the MPEB approached this
Court by way of a writ petition under Article 32, admittedly,
the vires of those sections were never challenged.
Subsequently, the said writ petition being No. 675 of 2004
along with three other writ petitions were disposed of by this
Court vide judgment dated 13.09.2006. It is not clear and not
explained to this Court why such recourse was not adopted
when the MPEB itself had approached this Court by way of a
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writ petition to challenge the vires of those provisions and,
ultimately, this Court dismissed the said writ petition filed by
the Board. It is to be noted that this Court did not find any
infirmity whatsoever in the manner of exercise of power by the
Central Government under Sections 58(3) and 58(4) of the
MPR Act while upholding the notifications dated 02.11.2004
and 04.11.2004 as being constitutional and not suffering from
any vice of arbitrariness as claimed by the plaintiff-State of
M.P. and MPEB. It was also pointed out and also not in
dispute that in the said writ petition, the present plaintiff was
also a party, even then the plea of constitutionality was not
raised.
17) By way of present amendment, the plaintiff-State of M.P.
is seeking to challenge the validity of the Central law in a
proceeding (suit) initiated under Article 131 of the
Constitution. Normally, for questions relating to validity of
Central or other laws, the appropriate forum is the
extraordinary writ jurisdiction under Articles 32 and 226 of
the Constitution of India in a writ petition and not an original
suit filed under Article 131 which vests exclusive jurisdiction
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of this Court as regards the dispute enumerated therein. It is
relevant to point out that Article 131A of the Constitution
inserted by (42nd Amendment) Act 1976, provides for exclusive
jurisdiction to this Court in regard to questions as to
constitutionality of Central laws. The said Article 131A
viewed as substantially curtailing the power of judicial review
of the writ courts, that is, High Courts under Article 226 and
this Court under Article 32 was omitted vide Constitution (43rd
Amendment) Act, 1977. It follows that when the Central laws
can be challenged in the State High Courts as well and also
before this Court under Article 32, normally, no recourse can
be permitted to challenge the validity of a Central law under
the exclusive original jurisdiction of this Court provided under
Article 131.
18) As regards the absence of guidelines in the provisions of
Sections 58(3) and 58(4) of MPR Act, on behalf of the
defendants it was pointed out that the manner of exercise of
power by the Central Government has been laid down in the
Sections itself. It is further pointed out that various
correspondences exchanged between the plaintiff and the
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defendants placed on record would show that the plaintiff has
never acted under the very same provisions, instead the
plaintiff-State has constituted its own Electricity Board. It is
also pointed out that the Ist Defendant-Union of India, in its
written statement highlighted that the Central Government did
resolve the dispute by passing the impugned Notifications after
considering the claims of the affected parties.
19) Finally, the original plaint proceeds that the exercise of
power by the Central Government by passing the impugned
Notifications dated 02.11.2004 and 04.11.2004 under
Sections 58(3) and 58(4) of the MPR Act was arbitrary, unjust
and unfair and had resulted in serious anomalies in the
apportionment of assets and liabilities. In our view, after
praying for such relief, if the amendment as sought for by the
plaintiff is allowed and the plaintiff is permitted to challenge
the vires of the said provisions, then the very basis on which
the plaintiff is claiming its right to apportionment of assets,
rights and liabilities of the undivided Board will cease to be in
existence and the entire suit of the plaintiff will be rendered
infructuous. Moreover, it is settled principle of law that leave
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to amend will be refused if it introduces a totally different, new
and inconsistent case or challenges the fundamental character
of the suit.
20) In spite of the above conclusion, we feel that the plaintiff
may be given an opportunity to put forth its stand that the
Central Government issued impugned Notifications/Orders
without proper guidelines and affording opportunity to the
parties concerned. It is made clear that we have not either
accepted or concluded the said claim of the plaintiff but in the
interest of justice, plaintiff-State of M.P. is permitted to raise
such objections at the time of trial by placing acceptable
materials.
21) With the above observation, I.A. No. 4 of 2009 is disposed
of with no order as to costs.
………………………………………..J.
(P. SATHASIVAM)
………………………………………..J.
(DR. B.S. CHAUHAN)
NEW DELHI;
AUGUST 17, 2011.
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