BEFORE THE SUPREME COURT OF INDIA

(Special Leave Petition filed u/Art.136 of the Constitution of India, 1950)

Special Leave Petition No. _____ of 2018

_______________________________________________________________

Lisa Kamnath..........................................................................Appellant

v.

Rajendra Thomas. ..................................................................Respondent

Most Respectfully Submitted to the Supreme Court of India

MEMORIAL ON BEHALF OF THE APPELLANT

COUNSEL FOR THE APPELLANT

TABLE OF CONTENTS
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[1]
LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES

i TABLE OF CASES

ii BOOKS

iii DICTIONARIES

iv STATUTES& RULES

v WEBSITES

STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES PRESENTED
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED

Contents
1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE? ...................................... 14
1.1SUBSTANCIAL QUESTION OF LAW: .................................................................................... 14
1.3 POWER U/ART.136 IS UNFETTERED: .................................................................................. 15
2.WHETHER A NEW LEGAL OPINION, IN THE CONTEXT OF PLAUSIBLY
DEMONSTRABLE ERROR ON THE LAW IN EXISTING PLEADINGS CAN BE A FACTOR
WHILE EXAMINING "DUE DILIGEN" EXPECTED FROM A PARTY TO LEGAL
PROCEEDINGS UNDER THE PROVISO TO ORDER VI RULE 17 OF THE CPC 1908? ............. 16
2.1 AMENDMENT MADE TO DETERMINE THE REAL QUESTIONS IN CONTROVERSY. 17
2.2 DUE DILIGENCE SATISFIED ................................................................................................. 18
2.2.1 CORRECTNESS OF AMENDMENT SHOULD NOT BE ADJUDGED AT THE TIME
OF ALLOWING AMENDMENT ................................................................................................ 20
2.3PROCEDURAL OBSTACLES OUGHT NOT TO IMPEDE THE DISPENSATION OF
JUSTICE ........................................................................................................................................... 20
2.4 AMENDMENT DOES NOT MAKE A NEW CASE ................................................................ 22
2.5 MERE DELAY IN MAKING AN AMENDMENT CANT BE A GROUND TO REFUSE
AMENDMENT................................................................................................................................. 23

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[2]
3. WHETHER THE PROVISO TO ORDER VI RULE 17 OF THE CPC 1908 APPLIES TO AN
AMENDMENT CONCERNING FRAUD ON THE COURT, UNDER THE 2ND PART OF RULE
17 WHICH IS MANDATORY AND ENJOINS THE COURT THAT “ALL SUCH AMENDMENTS
SHALL BE MADE AS MAY BE NECESSARY FOR THE PURPOSE OF DETERMINING THE
REAL QUESTIONS IN CONTROVERSY BETWEEN THE PARTIES”? ........................................ 24
3.1. INTERPRETATION OF THE PROVISION OF ORDER VI RULE 17 .................................. 24
3.2. OBJECT OF THE PROVISION ORDER VI RULE 17 OF CPC- ............................................ 25
3.3. THERE IS A NEED FOR THE QUESTION OF TITLE TO BE GONE INTO TO
DETERMINE THE REAL CONTROVERSY BETWEEN THE PARTIES-.................................. 26
3.4. LIBERAL APPROACH BY THE COURT............................................................................... 28
4.3SUPPRESSION OF MATERIAL FACTS AMOUNT TO FRAUD ........................................... 31
4.4 GRANT OF RIGHT BY SECTION 44 OF THE INDIAN EVIDENCE ACT 1872 ................. 32
4.5 APPLICATION OF SECTION 44 OF THE INDIAN EVIDENCE ACT.................................. 32
4.6 FORUM OF SUIT TO SET ASIDE FRAUDULENT DECREE ............................................... 33
4.7 WHETHER SUCH RIGHT IS SAVED BY SECTION 4 OF CPC 1908 .................................. 34

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[3]
 LIST OF ABBREVIATIONS

& : And

§ : Section

¶ : Paragraph

AIR : All India Report

Anr : Another

All : Allahabad

AP : Andhra Pradesh

Art. : Article

Bom : Bombay

Cal : Calcutta

Del : Delhi

DPSP : Directive Principles of State Policy

Edn : Edition

Govt : Government

HC : High Court

ICCPR : International Covenant on Civil and Political Rights

IT Act : Information Technology Act

Kar : Karnataka

Ltd : Limited

Ors : Others

PIL : Public Interest Litigation

RTI : Right to Information

SC : Supreme Court

SCC : Supreme Court Cases

SLP : Special Leave Petition

u/s : Under Section

UDHR : United Nations Declaration of Human Rights

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[4]
UOI : Union of India

US : United States

UK : United Kingdom

v : verse

TABLE OF CASES

Indian cases

; Fatehchand v. Wasudeo, A 1948 N 334 ............................................................................................ 10

Abdul Hug v. Abdul hafez , 11 CLJ636 ............................................................................................... 20
Ahmedbhoyhubiboy v. Vullebhoycassumboy AIR (1882)6 BOM 703................................................ 20
Ajith Kumar Saha v. Ashit Kumar Saha, AIR 2003 Cal 148 (158) ...................................................... 10
Aksaya Pradhan V. Ashamoni Behera, 92 (2001) CLT 593 (596) (Ori) ................................................ 3
Amolachand V. Firm Sadhuram, A 1954 N 200; ................................................................................... 7
Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. & Ors., AIR 2008 SC 2033 ........................... 5
AnathulaSudhakar v P. Buchi Reddy (2008) 4 SCC 594...................................................................... 13
AnathulaSudhakar v P. Buchi Reddy, (2008) 4 SCC 594..................................................................... 15
Artabandhu Samal v. Civil Judge (Jr. Division), Jaipur, 88(1999) CLT. 694 ....................................... 3
B.K.N. Pillai v. P.Pillai 2000 (1) CTC 163 ............................................................................... 3, 4, 7, 10
Badrinarayan B. Somani V. K. Shah, 2003 Vol 105(2) Bom LR 8 (12) (Bom) ..................................... 8
Baldev Singh and Ors v Manohar Singh and Anr,(2006) 6 SCC 498................................................... 15
Banka Behari v. Pokha, 25A 48: 22 AWN 179 ................................................................................... 20
Bhagwandas v. Patel & Co, AIR 1940 BOM 131................................................................................. 19
Bhagwandas v. patel& Co, AIR 1940 BOM 131 .................................................................................. 19
Bhaurao Dagdu Paralkar v. St of Maharashtra Air 2005(7) SCC 605 .................................................. 18
Bihari v. Sudama, A 1938 P 209............................................................................................................. 7
Bishunath Tiwari v. Mst. Mirchi AIR 1955 Pat 66 ............................................................................... 20
Biswanth v. Bhagwandin,14 CLJ 648................................................................................................... 19
Chander Kanta Bansalv. Rajinder Singh Anand, (2008) 5 SCC 117 ...................................................... 5
Chengalvaraya Naidu v. JaganathAIR 1994 SC 853,855 ..................................................................... 18
Dhanpat Ram v. Inddina Chand, 2005 AIHC 509 (raj .......................................................................... 10
Dharmalinga v. Krishnaswami, A 1949 M 467 .................................................................................... 10
Dhirendra v. Rashmani, A 1986 Ori 133 ................................................................................................ 7
Hakim Chand v. Raj Mal, 2001 AIHC 4808 (4811) ............................................................................... 9
Hari Pd v. Sitaram, A 1958 A 36 ............................................................................................................ 3
Haribachan v. Harbhajan, A 1975 P&H 205; ....................................................................................... 10
Hariram v. rameshwar, 49 CWN 354 ................................................................................................... 19
J. Samuel v. Gattu Mahesh (2012) 2 SCC 300 ....................................................................................... 8
J. Samuel v. Gattu Mahesh (2012) 2 SCC 300. .................................................................................... 12
Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon 1969 (1) SCC 869 ........... 8

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[5]
Jai Jai Ram v. national Building & C, 1969 SC 1267 ........................................................................... 10
Kanagammal V. Panchapakesa, 23 IC 82: 26 MLJ 343 ......................................................................... 7
Kisadas v. Rachappa, 33 B 644; Pirgonda Vs. Kalgonda, A 1957 SC 363 ............................................ 3
Lakshmiah v. Krishnaswami, A 1935 M 286 ......................................................................................... 3
Leach & co v. Jardin Skinner & co, A 1957 SC 357 .............................................................................. 3
Mahes v. Manindra,45 CWN 508; ........................................................................................................ 20
Maroti v. Ranganaath, A 1955 Hyd 1 ..................................................................................................... 3
Megh Ram V. Onkar Chand, 2001 AIHC 4364 (4366) (HP) ................................................................. 7
Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K Modi and Others [(2006) 4 SCC 385] ......... 4
Nair Service & c V. K C Alexander, A 1968 SC 165 ............................................................................. 3
Nair Servise & C V. K C Alexander, A 1968 SC 1165 ........................................................................ 10
Nandha Kumar v. Ram Jiban,18 CWN 681 .......................................................................................... 17
Nichalbhai v. Jaswantlal, A 1966 SC 997............................................................................................... 3
Nrisingh V. Steel Products Ltd, A 1953 C 15 ......................................................................................... 8
P.Durga Reddy And Another vs B.Yadi Reddy CIVIL REVISION PETITION No.1811 of 2014 ....... 7
Pankaja v. Yellapa AIR 2004 SC 4102 (4104) ..................................................................................... 10
Patch v. ward 1867(3)L.R chancery Appeals........................................................................................ 17
Pavithran V. Narayanan Gangadhaara Karthvu, 1997 AIHC 3594 ........................................................ 3
Potnuru Lakshmana Rao v. Potnuru Babu Rao, 2001 AIHC 2814 (AP) ................................................ 3
Pramada v. Sagarmal, A 1954 P 439 ...................................................................................................... 7
Prayag v. Siva pd,42 CLJ 280,482:62 IC 385 ...................................................................................... 20
Punjab National Bank v. Indian Bank, AIR 2003 SC 2284 .................................................................... 4
R.K Bangia, Contracts 1, Sixth edition ,2009,Allahabad law agency, PG no: 161 .............................. 17
R.K. Singh v. Union of India, 2000 ALL LJ 218 (SC); .......................................................................... 7
Ragu Thilak D. John vs. S. Rayappan and Others (2001) 2 SCC 472 .................................................... 9
Rajendra kumar v. Dipinder Kumar Sethi, AIR 2005 SC 1592 .............................................................. 4
Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors (civil) 5350-5351 of 2002 ................................. 7
Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors Appeal (civil) 5350-5351 of 2002 .............. 4, 13
Rajesh Kumar Aggarwal&Ors. Vs. K.K.Modi&Ors (2006) 4 SCC 385. ............................................ 12
Rajib v. Lakhan,27 C 11:CWN 660 ...................................................................................................... 20
Ramjohn v. Yahyabhai, S 1947 B 149 .................................................................................................. 10
Rex v. Recorder of leiaster 1947 (1) KB 726 ....................................................................................... 20
SajjadanashinSayedMd v. Musa DadabhaiUmmer 2000 (3) SCC 350. ............................................... 15
Sampath kumar v. Ayyakannu, AIR 2002 SC 3369 ............................................................................... 7
Sampath Kumar v. Ayyakannu, AIR 2002 SC 3369 .............................................................................. 3
Santhosh Kumar Singh v. Ranjana Kumari Singh, 93 (2002) CLT 529 ............................................... 10
Sarthakram v. Nundo Ram,11 Cwn 579 ............................................................................................... 17
Satish Chandra Saxena v. Krishna Prasad Saxena, A 1989 ALL 34,35 ................................................. 8
Satya v. Teja ,A 1975 SC 105 ............................................................................................................... 17
Sheo Narayan v, Ram, A 1923 N 241 ..................................................................................................... 9
Siddalingamma v. Mamtha Shenoy, AIR 2001 SC 2896........................................................................ 8
Sipra Gupta v. Sankarlal Paul,(2002) 1 GLR 223................................................................................. 10
Sri Radha v. Wajidali ,36IC 746 ........................................................................................................... 19
St of AP & Anr v. T. Surya Chandra Rao AIR (2005) 6 SCC 149 ...................................................... 18
SulochanaAmma vs. Narayanan Nair, 1994 (2) SCC 14. ..................................................................... 15
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[6]
Tilak Raj v. Rattan Chand, 1999 AIHC 3594 ......................................................................................... 3
Union of India v. Pramod Gupta, (2005) 12 SCC 1 .............................................................................. 10
Vineeth Kumar v. Mangal Sain Wadhera, A 1985 SC 817, 320 ............................................................ 9

BOOKS,COMENTARIES& LEXICONS.

1. RAO RAMAY, PRACTICAL GUIDE TO THE CODE OF CIVIL PROCEDURE, 1908, 1 ST

EDITION, ASIA LAW HOUSE HYDERABAD.
2. JUSTICE NARAYANA.P.S, CODE OF CIVIL PROCEDURE, 1908, 4TH EDITION,ASIA
LAW HOUSE HYDERABAD.
3. MULLA SIR DHINSHAW FARDUNJI, THE CODE OF CIVIL PROCEDURE, 16TH
EDITION, LEXIS NEXIS, BUTTERWORTH WADHWA PUBLICATION.
4. RAY SUKUMAR, THE CODE ON CIVIL PROCEDURE, 3RD EDITION, UNIVERSAL
LAW PUBLISHING.
5. LAKSHMINATH.A, CODE OF CIVIL PROCEDURE & LIMITATION ACT, 3 RD
EDITION, ASIA LAW HOUSE HYDERABAD.
6. POLLOCK &MULLA, THE INDIAN CONTRACT ACT,1872,14TH EDITION,2016, LEXIS
NEXIS,BUTTERWORTH WADHWA PUBLICATION.
7. SINGH AVATAR, CONTRACT & SPECIFIC RELIEF, 12TH EDITION, EASTERN BOOK
COMPANY.
8. BANGIA R.K, CONTRACTS-I, 6TH EDITION, 2009, REPRINT 2016, ALLAHABAD LAW
AGENCY.
9. Dr. SINGH AVATAR, PRINCIPLEOF THE LAW OF EVIDENCE, 5TH EDITION,
CENTRAL LAW AGENCY.
10. MANOHAR V.R, SARKAR LAW OF EVIDENCE, 16TH EDITION REPRINT 2008,
WADHWA NAGPUR.
11. Dr. KHAN SHAKIL AHMED, RATANLAL & DHIRAJLAL THE LAW OF EVIDENCE,
24TH EDITION, LEXIS NEXIS, BUTTERWORTH WADHWA PUBLICATION.
12. Dr. MYNENI S.R, THE LAW OF EVIDENCE, 4TH EDITION, ASIA LAW HOUSE
HYDERABAD.
13. Dr. SINGH AVATAR, PRINCIPLE OF THE LAW OF EVIDENCE, 3RD EDITION,
CENTRAL LAW PUBLICATION.
14. Dr. KRISHNA CHARI .V, LAW OF EVIDENCE , 7TH EDITION, NARENDER
GOGIA&COMPANY

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

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15. LAL BATAK, LAW OF EVIDENCE, 5TH EDITION, ORIENT PUBLISHING.

WEBSITES

1. www.sconline.in
2. www.manupatra.com
3. www.indiankanoon.org
4. www.cdjlawjournal.com
5. www.westlawindia.com
6. www.casemine.com
7. www.scconline.com
8. www.judis.nic.in
9. www.indlawinfo.org
10. www.findlaw.com
11. www.lawofindia.org
12. www.supremecourtcaselaw.com
13. www.advocatekhoj.com
14. www.jstor.org

STATUTES & RULE

1. Indian Contract Act,1872
2. The Constitution Of India,1950
3. India Limitation Act,1963
4. The Code Of Civil Procedure Code,1908

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[8]
 STATEMENT OF JURISDICTION
With regard to the circumstances that have been presented in the instant case, the appellants
submits before this Hon’ble Supreme Court of India, that it has the inherent jurisdiction to
try, entertain and dispose conferring jurisdiction est potestas de public introduota, cum
necessitate juris dicendi1in the present case by virtue of Article 136 of the Constitution of
India, 19502.

“Article 136- Special leave to appeal by the Supreme Court:

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces”.

1
Meaning: jurisdiction is the power introduced for the public good, on the account of the necessity of
expounding the law.

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[9]
 STATEMENT OF FACTS

BACKGROUND-

Mr. Birendra Thomas was the original owner of the Suit Property. The plaintiff Mr. Rajendra
Thomas and the defendant Mrs. Lisa Kamath’s mother are the siblings of Mr. Birendra
Thomas. Mr. Birendra Thoms, a widower died heirless on 06.11.2007 and thus Mrs. Lisa
Kamath’s mother and Mr. Rajendra Thomas were the only possible legal heirs. The plaintiff
filed a Suit for partition against his sister and obtained a consent decree for the Suit property
on 14.07.2011. the defendant’s mother passed away in 2013.

FILING OF THE SPECIAL CIVIL SUIT-

Mr. Rajendra Thomas filed a Special Civil Suit, No 197/2014 on 16.01.2014 against Mrs.
Lisa Kamath seeking injunction simpliciter against her. In her written statement dated
06.03.2014 and her reply to the prayer for interim injunction, the defendant contended that
the decree is contrary to law in view of the will dated 01.1.2007 left by Mr. Birendra Thomas.

The Trial Court granted interim injunction in favour of the plaintiff. The defendant obtained a
new legal opinion from another advocate in view of which she filed an application dated
09.03.2016 and sought to amend her written statement by adding that the Consent decree is a
nullity as it was obtained by fraud on the Court. The Trial Court dismissed the application
and held that the defendant’s case failed the test of due diligence as mentioned under proviso
to Order VI Rule 17 of the Civil Procedure Code.

Mrs. Lisa Kamath filed a Writ petition before the High Court of Mahanagara under Article
227 of the Constitution. The Hon’ble High Court upheld the verdict of the Trial Court and
held that a new legal opinion cannot form the basis of an application for amendment of a
written statement.

FILING OF THE SPECIL LEAVE PETITION BEFORE THE SUPEME COURT-

Mrs. Lisa Kamath filed an Special Leave Petition against the judgment of the High Court
dated 13.12.2017. The SLP is listed for hearing before a Bench comprising of 3 judges, after
issuance of notice and the main issues for adjudication were also framed.
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[10]
 STATEMENT OF ISSUES

ISSUE I

WHETHER THE PRESENT SPECIAL LEAVE PETITION IS MAINTAINABLE?

ISSUE II

WHETHER A NEW LEGAL OPINION, IN THE CONTEXT OF PLAUSIBLY

DEMONSTRABLE ERROR ON THE LAW IN EXISTING PLEADINGS CAN BE A
FACTOR WHILE EXAMINING “DUE DILIGENCE” EXPECTED FROM A PARTY
TO LEGAL PROCEEDINGS UNDER THE PROVISO TO ORDER VI RULE 17 OF
THE CPC 1908?

ISSUE III

WHETHER THE PROVISO TO ORDER VI RULE 17 OF THE CPC 1908 APPLIES

TO AN AMENDMENT CONCERNING FRAUD ON THE COURT, UNDER THE 2ND
PART OF RULE 17 WHICH IS MANDATORY AND ENJOINS THE COURT THAT
“ALL SUCH AMENDMENTS SHALL BE MADE AS MAY BE NECESSARY FOR
THE PURPOSE OF DETERMINING THE REAL QUESTIONS IN CONTROVERSY
BETWEEN THE PARTIES”?

ISSUE IV

WHETHER A PARTY HAS A RIGHT UNDER SECTION 44 OF THE INDIAN

EVIDENCE ACT 1872 TO SHOW THAT A PRIOR CONSENT DECREE IS
VITIATED BY FRAUD; AND WHETHER SUCH RIGHT IS SAVED BY THE
SECTION 4(1) OF THE CIVIL PROCEDURE CODE, 1908, SO THAT PROVISO TO
ORDER VI RULE 17 OF THE CIVIL PROCEDURE CODE WOULD NOT COME IN
THE WAY OF AN AMENDMENT THAT SEEKS TO EXPOSE FRAUD BY
EXERCISING SUCH AMENDMENT?

SUMMARY OFARGUMENTS
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[11]
 SUMMARY OFARGUMENTS

ISSUE I

WHETHER THE PRESENT SPECIAL LEAVE PETITION IS MAINTAINABLE?

It is humbly submitted before this Hon’ble court that the Special Leave Petition is
maintainable. Firstly, as the present case involves substantial question of law. Secondly, there
had been severe miscarriage of justice by the order of the Lower Court. Hence, the present
petition under Article 136 is humbly submitted to be admitted under the interest of justice.

ISSUE II

WHETHER A NEW LEGAL OPINION, IN THE CONTEXT OF PLAUSIBLY

DEMONSTRABLE ERROR ON THE LAW IN EXISTING PLEADINGS CAN BE A
FACTOR WHILE EXAMINING "DUE DILIGENE" EXPECTED FROM A PARTY
TO LEGAL PROCEEDINGS UNDER THE PROVISO TO ORDER VI RULE 17 OF
THE CPC 1908?

It is submitted before the Hon’ble court that the current amendment satisfies the factor of
“Due diligence”. The order VI rule17 is stated in a wider terms and such power is
discretionary power of the court applied under special and necessary circumstances. It is
humbly submitted that the current amendment is submitted to determine the real question in
controversy. A strict due diligence concept cannot be expected from a janitor who is
dependent on others for her existence. Thus we humbly seek for a liberal approach from the
Hon’ble court. From The New legal opinion alone the real question in controversy was
identified and therefore it forms a very important part of the case. Such amendment does not
give rise new cause of action therefore thecounsel prays beforethecourt to recognise the new
Legal opinion and allow the amendment in the written statement.

ISSUE III

WHETHER THE PROVISO TO ORDER VI RULE 17 OF THE CPC 1908 APPLIES

TO AN AMENDMENT CONCERNING FRAUD ON THE COURT, UNDER THE 2ND
PART OF RULE 17 WHICH IS MANDATORY AND ENJOINS THE COURT THAT
“ALL SUCH AMENDMENTS SHALL BE MADE AS MAY BE NECESSARY FOR
THE PURPOSE OF DETERMINING THE REAL QUESTIONS IN CONTROVERSY
BETWEEN THE PARTIES”?

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[12]
It is humbly submitted before this Hon’ble Court that the 2nd part of Rule 17 is mandatory
and the court ought to allow amendment to determine the real controversy between the
parties. It is also further submitted that the proviso to Order VI Rule 17 cannot govern nor
control the main provision, which permits the Court to allow all such amendments which are
necessary for deciding the real controversy between the parties.

ISSUE IV

WHETHER A PARTY HAS A RIGHT UNDER SECTION 44 OF THE INDIAN

EVIDENCE ACT 1872 TO SHOW THAT A PRIOR CONSENT DECREE IS
VITIATED BY FRAUD; AND WHETHER SUCH RIGHT IS SAVED BY THE
SECTION 4(1) OF THE CIVIL PROCEDURE CODE, 1908, SO THAT PROVISO TO
ORDER VI RULE 17 OF THE CIVIL PROCEDURE CODE WOULD NOT COME IN
THE WAY OF AN AMENDMENT THAT SEEKS TO EXPOSE FRAUD BY
EXERCISING SUCH AMENDMENT?

4. It is submitted that Section 44 of the Indian Evidence Act 1872 gives a right to the party to
show to the Court that a prior Consent decree is vitiated by fraud. Moreover it is also
submitted that fraud vitiates all solemn act and thus also vitiates the Consent decree. It is also
contended tht such a right is saved by Section 4(1) of the Civil Procedure Code, 1908.

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[13]
 ARGUMENTS ADVANCED

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

It is humbly submitted before this Hon’ble Supreme Court that Article 136 of the
Constitution is couched in its widest phraseology 3 . The matter lies within the complete
discretion of SC. The present SLP is maintainable per se as, there exists a substantial question
of law, special and exceptional circumstances and arguendo, the power of the Supreme Court
under Art.136 is unfettered. Even after grant of leave, irrespective of the nature of the subject
matter, the appellants must show that the case has features of sufficient gravity to warrant a
decision from this Court on merits4.

1.1SUBSTANCIAL QUESTION OF LAW:

The jurisdiction conferred under Art. 136 on the SC, is a corrective one and not a restrictive
one. 5 The Constitution Bench of the Apex Court 6 observed that the proper test, for
determining whether a question of law raised in the case is substantial or, whether it directly
and substantially affects the rights of the parties and, if so whether it is either an open
question, in the sense that it - is not finally settled by this Court or is not free from difficulty
or calls for discussion of alternative views.7 Hero Vinoth v. Seshammal8 , it was laid down
that a question of law having a material bearing on the decision of the case will be a
substantial question of law.
In the Instant case, the rights of Lisa Kamnath has been directly affected. The property was
obtained by Rajendra Thomas by Fraud on Lisa Kamnath Mother. So her rights are affected.
1.2MISCARRIAGE OF JUSTICE:
It is humbly submitted that, it is well known principle that the SC does not interfere unless
there is a serious miscarriage of justice or manifest illegality9.The Appellant must show that
exceptional and special circumstances exist and that if there is no interference, substantial and
grave injustice will be done to the Appellant.10 A duty enjoined upon the SC to exercise its
power by setting right the illegality in the judgments is well-settled that illegality must not be

3
Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26
4
M/S J. P. Builders & Anr v. A. Ramadas Rao & Anr (2011) 1 SCC 429
5
Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359
6
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314
7
Mahindra & Mahindra Ltd. v. Union of India & Anr., AIR 1979 SC 798; Pankaj Bhargava & Anr. v. Mohinder
Nath & Anr., AIR 1991 SC 1233; Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179
8
AIR 2006 SC 2234
9
Suresh v state of Bihar (2003) 4 SCC 128
10
Hem Raj v. The State of Ajmer, 1954 SCR 380
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[14]
allowed to be perpetuated and failure by the SC to interfere in the same would amount to
allowing the illegality to be perpetuated.11

In the instant case, there is gross miscarriage of justice, as the Property of Lisa Kamnath's
Mother was obtained by fraud and concealment of vital documents.

1.3 POWER U/ART.136 IS UNFETTERED:

Though power u/Art.136 has to be sparingly exercised, it is an overriding power where under,
the Court may generously step in to impart justice and to remedy injustice.12 The power has
been held to be plenary,13 limitless,14 adjunctive and unassailable.15
As the Supreme Court is not only a Court of law but a Court of equity as well,16 it is humbly
submitted that if there is no interference by the Supreme Court at this juncture, it would cause
grave injustice to the Appellant. If and when the Court is satisfied that great injustice has
been done, it is not only the 'right' but also the 'duty' of this Court to reverse the error and
the injustice 17 Hence, a phrase from the legal maxim ‘lata culpa dolo aequiparatur18 ’
should be observed that Hon'ble SC's interference is called for in the present case, has the
lower court committed some serious and flagrant violation of the law 19 , by delivering a
decision which is patently erroneous20, and is obviously wrong21 Hence this SLP should be
allowed.

11
Durga Shankar Mehta v. Thakur Raghuraj Singh, AIR 1954 SC 520
12
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2035.
13
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors.,AIR 1954 SC 520.
14
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
15
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.
16
Chandra Bansi Singh v. State of Bihar, AIR 1984 SC 1767
17
Indira Kaur and Ors. V. Sheo Lal Kapoor (1988) 2 SCC 488, 499:AIR 1988 SC 1074
18
Meaning: Gross negligence is equal to deceit
19
Amarjit Kaur v. Harbhajan Singh, (2003) 10 SCC 228.
20
Jhummamal v. State of M.P., AIR 1988 SC 1973.
21
Sharif Ahmed v. RTA, AIR 1978 SC 209.
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[15]
2.WHETHER A NEW LEGAL OPINION, IN THE CONTEXT OF PLAUSIBLY
DEMONSTRABLE ERROR ON THE LAW IN EXISTING PLEADINGS CAN BE A
FACTOR WHILE EXAMINING "DUE DILIGEN" EXPECTED FROM A PARTY
TO LEGAL PROCEEDINGS UNDER THE PROVISO TO ORDER VI RULE 17 OF
THE CPC 1908?
1. It is humbly submitted before this Hon'ble Court that the current amendment of written
pleadings sought by Lisa Kamnath satisfies the factor of "due Diligence" expected from
a party to legal proceedings under the proviso of Order VI Rule 17 Of CPC.

2. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or
amend his pleadings in such manner and on such terms as may be just. The power to
allow the amendment is wide and can be exercised at any stage of the proceedings in the
interest of justice on the basis of guidelines laid down by various High Courts and this
Court.22 But it is equally true that the Courts while deciding such prayers should not
adopt hyper technical approach. Liberal approach should be the general Rule
particularly in cases where the other side can be compensated with the costs.
Technicalities of law should not be permitted to hamper the Courts in the administration
of justice between the parties. Amendments are allowed in the pleadings to avoid
uncalled for multiplicity of litigation.23
3. Order VI Rule 17 being stated in very wide terms, the Court's power to allow
amendment has been considerably enlarged. The power is entirely discretionary to be
used judicially on a consideration of the special circumstances of each case.24The Court
should be liberal in allowing applications for amendment of pleadings/ written
statement,25 having regard to the fact that thereby multifariousness of the proceedings
would be avoided.26The object of the rule is to avoid multiplicity of suits27 and in a
proper suit the plaint should be allowed to be amended.28
4. In the instant case, the amendment should be allowed as it would avoid multiplicity of
suits.

22
B.K.N. Pillai v. P.Pillai 2000 (1) CTC 163
23
Tilak Raj v. Rattan Chand, 1999 AIHC 3594
24
Kisadas v. Rachappa, 33 B 644; Pirgonda Vs. Kalgonda, A 1957 SC 363
25
Sampath Kumar v. Ayyakannu, AIR 2002 SC 3369; Pavithran V. Narayanan Gangadhaara Karthvu, 1997
AIHC 3594, Aksaya Pradhan V. Ashamoni Behera, 92 (2001) CLT 593 (596) (Ori)
26
Potnuru Lakshmana Rao v. Potnuru Babu Rao, 2001 AIHC 2814 (AP)
27
Artabandhu Samal v. Civil Judge (Jr. Division), Jaipur, 88(1999) CLT. 694
28
Nichalbhai v. Jaswantlal, A 1966 SC 997; see also Leach & co v. Jardin Skinner & co, A 1957 SC 357; Nair
Service & c V. K C Alexander, A 1968 SC 165; Lakshmiah v. Krishnaswami, A 1935 M 286; Maroti v.
Ranganaath, A 1955 Hyd 1; Hari Pd v. Sitaram, A 1958 A 36
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[16]
2.1 AMENDMENT MADE TO DETERMINE THE REAL QUESTIONS IN
CONTROVERSY
5. It is humbly submitted before this Hon'ble Court that the current amendment sought by
the Appellant in context to determine the real questions in controversy.
6. In Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K Modi and Others,29 it was
held by this Court therein that the Court should allow amendments that would be
necessary to determine the real question of the controversy between the parties but the
same indisputably would be subject to the condition that no prejudice is caused to the
other side. It is the guiding principle of amendment that, 30 generally speaking, all
amendments ought to be made "for the purpose of determining the real question in
controversy between the parties to any amendment or of correcting any defect or error in
any proceedings.31 Also an amendment which clears confusion in the pleadings should
be allowed.32
7. In Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors 33 the Court held that "The real
controversy test is the basic or cardinal test and it is the primary duty of the Court to
decide whether such an amendment is necessary to decide the real dispute between the
parties.In cases like this, the Court should also take notice of subsequent events in order
to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve
the ends of justice. It is settled by catena of decisions of this Court that the rule of
amendment is essentially a rule of justice, equity and good conscience and the power of
amendment should be exercised in the larger interest of doing full and complete justice
to the parties before the Court.34
8. In the instant case, it is humbly submitted that the amendment made is to determine the
real question in controversy. But the so called consent decree is obtained by fraud and
concealment of vital document.Where the plaintiff is in possession, but his title to the
property is in dispute, or under a cloud, or where the defendant asserts title thereto a relief
of injunction can't be granted unless the Plaintiff proves that he holds a better title.35 Mr.
Rajendra Thomas's purpoted title and de jure possession is based on the consent decree

29
Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K Modi and Others [(2006) 4 SCC 385]
30
B.K.N. Pillai v. P.Pillai 2000 (1) CTC 163
31
Rajendra kumar v. Dipinder Kumar Sethi, AIR 2005 SC 1592
32
Punjab National Bank v. Indian Bank, AIR 2003 SC 2284
33
Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors Appeal (civil) 5350-5351 of 2002
34
ibid
35
Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. & Ors., AIR 2008 SC 2033
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[17]
 obtained.36But the title of property is in dispute as the consent decree is obtained by fraud
and concealment of vital documents. So the Court cant grant an injunction simpliciter in
the favour of Rajendra Thomas as the Question of who holds the title of the property is in
dispute. This amendment is made to show that Lisa Kamnath has a better title than
Rajendra Thomas and Injunction can't be granted against her. This amendment is made to
determine the real question in controversy.

2.2 DUE DILIGENCE SATISFIED

9. It is humbly submitted before this Hon'ble Court that the due diligence factor expected
out of a party under Order VI Rule 17.
10. The words "due diligence" has not been defined in the Code. According to Oxford
Dictionary, 37 the word "diligence" means careful and persistent application or effort.
"Diligent" means careful and steady in application to one's work and duties, showing
care and effort. As per Black's Law Dictionary,38 "diligence" means a continual effort to
accomplish something, care; caution; the attention and care required from a person in a
given situation. "Due diligence" means the diligence reasonably expected from, and
ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge
an obligation.39
11. Due diligence is the idea that reasonable investigation is necessary before certain kinds
of relief are requested. Duly diligent efforts are a requirement for a party seeking to use
the adjudicatory mechanism to attain an anticipated relief. The term `Due diligence' is
specifically used in the Code so as to provide a test for determining whether to exercise
the discretion in situations of requested amendment after the commencement of trial.

12. In the Instant case, Lisa kamnath has exercised due diligence as expected out of a
prudent man. Lisa Kamnath is a janitor working in a primary school in her village. She
couldn't have possibly understood the legal aspects of her case involved. She can't be
made to suffer for the mistakes done by her previous Lawyer. It is also significant to
take a note on the point that after coming to know about the existence of the will,

36
Moot Proposition Page 1, Para 2
37
(Edition 2006)
38
10th Edition 2014
39
Chander Kanta Bansalv. Rajinder Singh Anand, (2008) 5 SCC 117
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[18]
 Rajendra Thomas has informed her that the will had no legal relevance in view of their
consent Decree. Lisa Kamnath being a Janitor, who didn't understand the Legal aspects
involved believed the words of her brother that the will didn't have any legal relevance.
Due Diligence in law, means doing everything reasonable, not everything possible.
"Due diligence" means reasonable diligence; it means such diligence as a prudent man
would exercise in the conduct of his own affairs.40 It is humbly stated that Lisa Kamnath
did everything reasonable while filing the written statement and she couldn't have raised
this amendment before the commencement of trial inspite of exercising due diligence.
13. If Lisa kamnath hadn't obtained a new legal opinion she couldn't have found out that the
consent decree was null and void as it was obtained by fraud. So this new legal opinion
should be considered as due diligence as expected out of a party under Order VI Rule 17
and the amendment should be allowed.
14. In the written statement dated 06.03.2014, it has been stated that both the Will and
Consent decree are in contrary to each other which ultimately challenges the consent
decree. This amendment has been sought to add the specific plea of fraud which was
missed out in the original written statement.
15. The primary aim of the Court is to try the case on its merits and ensure that the rule of
justice prevails. For this the need is for the true facts of the case to be placed before the
Court so that the Court has access to all the relevant information in coming to its
decision. Therefore, at times it is required to permit parties to amend their plaints. In the
instant case, the amendment is made to make aware of the Court the entire facts that are
present in this case. Mr. Rajendra Thomas has concealed certain vital documents and
has obtained the consent decree which is vitiated by fraud. In order to make the Court
aware of such an act, this amendment has been made.

40
Ibid
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[19]
2.2.1 CORRECTNESS OF AMENDMENT SHOULD NOT BE ADJUDGED AT THE
TIME OF ALLOWING AMENDMENT

16. It is humbly submitted before this Hon'ble Court that the correctness of the amendment
sought should not be adjudged at the time of allowing the amendment.
17. In the case of Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors41the Court held that
"While considering whether an application for amendment should or should not be
allowed, the Court should not go into the correctness or falsity of the case in the
amendment. Likewise, it should not record a finding on the merits of the amendment
and the merits of the amendment sought to be incorporated by way of amendment are
not to be adjudged at the stage of allowing the prayer for amendment.
18. The Court can't go into the truth or falsity of the proposed amendments sought for at the
time of considering the application for amendment. 42 The merits of the averments 43
sought to be incorporated by way of amendment are not to be judged at the stage of
allowing prayer for amendment.44In the instant case, the plea of fraud has been conducted
by Rajendra Thomas while obtaining consent decree can be ascertained only by the trial.
The correctness of such amendment can't be challenged or looked into at the time of
allowing the amendment.

2.3PROCEDURAL OBSTACLES OUGHT NOT TO IMPEDE THE DISPENSATION

OF JUSTICE
19. It is humbly submitted before this Hon'ble Court that the procedural obstacles ought not
to impede the dispensation of justice. Order VI Rule 17 is not exhaustive of the powers
of the Court.45It is no doubt a liberal approach to be required as procedural law is the
hand maid and not mistress of justice.46 The power to amend is inherent in the Court.47
The principle applicable to amendment of plaints equally apply to amendment of written
statements,48 but not with the same rigour.49 It is well settled that the same standard and

41
Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors (civil) 5350-5351 of 2002
42
R.K. Singh v. Union of India, 2000 ALL LJ 218 (SC);
43
Dhirendra v. Rashmani, A 1986 Ori 133
44
Sampath kumar v. Ayyakannu, AIR 2002 SC 3369
45
Bihari v. Sudama, A 1938 P 209
46
P.Durga Reddy And Another vs B.Yadi Reddy CIVIL REVISION PETITION No.1811 of 2014
47
Kanagammal V. Panchapakesa, 23 IC 82: 26 MLJ 343
48
B.K.N. Pillai v. P.Pillai 2000 (1) CTC 163; Amolachand V. Firm Sadhuram, A 1954 N 200; Pramada v.
Sagarmal, A 1954 P 439
49
Megh Ram V. Onkar Chand, 2001 AIHC 4364 (4366) (HP)
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[20]
 principles which apply to the amendment of the plaint can't be applied to amendment of
the written statement.50 Amendment of written statement is to be liberally considered.
20. Amendment seeking to add only new grounds of defence without displacing the
complete basis of defense as in the written statement should, 51 which amounts to
additional approach to the same case pleaded in the written statement should be
allowed.52 When a party is refused to amend a pleadings it in effect not only stops trial
of a case which he wants to set up but to preclude him from leading evidence.53 Once an
amendment has been unreservedly permitted to be incorporated in the pleadins, the
correctness of facts introduced by amendment cannot be doubted soley on the ground
that they were not stated in the original plaint/ petition/ written statment.54
21. The Court has to give reading of the entire written statement and the prayer made
thereunder and the if the proposed amendment would go to show that there was no
question of any inconsistency with the case originally made out in the written statement
then such an amendment would be allowed.55 This Court has consistently held that the
amendment to pleading should be liberally allowed since procedural obstacles ought not
to impede the dispensation of justice.56InJai Jai Ram Manohar Lal vs. National Building
Material Supply, Gurgaon 57 , 1969 (1) SCC 869 It was held that a party cannot be
refused just relief merely because of some mistake, negligence, inadvertence or even
infraction of the rules of procedure. The Court always gives leave to amend the pleading
of a party, unless it is satisfied that the party applying was acting malafide. However
negligent or careless may have been the first omission and however late the proposed
amendment, the amendment may be allowed if it can be made without injustice to the
other side. In the instant case, allowing of amendment won't cause any injustice or
prejudice to Rajendra Thomas and the same should be allowed.
22. In the instant case, the plea of consent decree obtained by fraud wasn't specifically
pleaded in the written statements. After obtaining a new legal opinion, this fact has been
added which was missed in the original written statement. There is no malafide intention

50
Nrisingh V. Steel Products Ltd, A 1953 C 15
51
Ibid
52
Badrinarayan B. Somani V. K. Shah, 2003 Vol 105(2) Bom LR 8 (12) (Bom)
53
Satish Chandra Saxena v. Krishna Prasad Saxena, A 1989 ALL 34,35
54
Siddalingamma v. Mamtha Shenoy, AIR 2001 SC 2896
55
J. Samuel v. Gattu Mahesh (2012) 2 SCC 300
56
Ibid
57
Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon 1969 (1) SCC 869
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[21]
 present buy making this amendment. The error made on the law in existing pleadings
should not be ground while dismissing the current amendment sought before this Court.

2.4 AMENDMENT DOES NOT MAKE A NEW CASE

23. It is humbly submitted before this Hon'ble Court that the amendment sought by Lisa
Kamnath in her written statement doesn't make a new case. When the amendment does
not constitute an addition of a new cause of action, or raise a new case, but amounts to
no more than adding to the facts already on the record, the amendment would be
allowed even after the Statutory period of Limitation.58An amendment in the pleading
adding a new cause of action or new defence should be allowed if it can be made
without injustice to the other side.59 The rule that no amendment altering the character
of a suit can be allowed is not however inflexible and in exceptional cases it has been
granted to avoid multiplicity of suits or for the purpose of determining the real question
in controversy.60
24. In Ragu Thilak D. John vs. S. Rayappan and Others 61 ,Bench has observed that the
amendment sought would change the nature of the suit originally filed was not a reason
for refusing application for amendment and that the dominant purpose of Order VI Rule
17 was to minimise litigation and that the plea that the relief sought for by way of
amendment was barred by time is arguable in the circumstances of the case.
25. In the instant case, the amendment made is regarding the nullity of consent decree which
was obtained by playing fraud on the Courtand as well as on Lisa Kamnath's mother. The
suit filed by Rajendra Kamnath is for injuction simpliciter and the same can't be granted
when the title is in dispute. So this amendment doesn't change the nature of the suit or
make a new case, as Rajendra Kamnath's purpoted title and de jure possession is based on
the consent decree which was obtained by fraud.

58
Vineeth Kumar v. Mangal Sain Wadhera, A 1985 SC 817, 320
59
Hakim Chand v. Raj Mal, 2001 AIHC 4808 (4811)
60
Sheo Narayan v, Ram, A 1923 N 241
61
Ragu Thilak D. John vs. S. Rayappan and Others (2001) 2 SCC 472
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[22]
2.5 MERE DELAY IN MAKING AN AMENDMENT CANT BE A GROUND TO
REFUSE AMENDMENT
26. It is humbly submitted before this Hon'ble Court that mere delay in filing an
amendment of written statement is not a ground to refuse the amendment.Mere delay
and laches in making the application for amendment is not ground for refusal of the
amendment. Amendment is a discretionary matter and the Court must bear in favour of
doing full and complete justice by cost or otherwise.62
27. In the case of Pankaja v. Yellapa,63 their Lordships of the Supreme Court held that "So far
as the Court's jurisdiction to alllow an amendment of pleadings is concerned there can be
no two opinion that the same is wide enough to permit amendments even in case where
there has been substantial delay in filing such amendment applications. This Court in
numerous cases has held the dominant purpose of allowing the amendment is to minimize
the litigation, therefore, if the facts of the case so permits, it is always open to the Court to
allow application in spite of the delay and laches in moving such amendment
application”. In the instant case, the Amendment of the written statement should be
allowed even when there is slight delay in filing the application

62
Nair Servise & C V. K C Alexander, A 1968 SC 1165; B.K.N. Pillai v. P.Pillai 2000 (1) CTC 163; Union of
India v. Pramod Gupta, (2005) 12 SCC 1; Santhosh Kumar Singh v. Ranjana Kumari Singh, 93 (2002) CLT
529; Sipra Gupta v. Sankarlal Paul,(2002) 1 GLR 223; Dhanpat Ram v. Inddina Chand, 2005 AIHC 509 (raj);
See also Jai Jai Ram v. national Building & C, 1969 SC 1267; Haribachan v. Harbhajan, A 1975 P&H 205;
Ramjohn v. Yahyabhai, S 1947 B 149; Fatehchand v. Wasudeo, A 1948 N 334; Dharmalinga v. Krishnaswami,
A 1949 M 467, Ajith Kumar Saha v. Ashit Kumar Saha, AIR 2003 Cal 148 (158)
63
Pankaja v. Yellapa AIR 2004 SC 4102 (4104)
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[23]
3. WHETHER THE PROVISO TO ORDER VI RULE 17 OF THE CPC 1908
APPLIES TO AN AMENDMENT CONCERNING FRAUD ON THE COURT,
UNDER THE 2ND PART OF RULE 17 WHICH IS MANDATORY AND ENJOINS
THE COURT THAT “ALL SUCH AMENDMENTS SHALL BE MADE AS MAY BE
NECESSARY FOR THE PURPOSE OF DETERMINING THE REAL QUESTIONS
IN CONTROVERSY BETWEEN THE PARTIES”?

28. It is the humble submission of the counsel for the petitioner that the periods during
which amendment of a pleading may be sought are two.

(i) Under Order VI Rule 17, a defendant may at any stage of the proceedings be allowed
to alter or amend the written statement.

(ii) Under proviso to Order 6 Rule 17, 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.

Rule 17 of Order VI of the CPC reads as follows-

"R.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 question 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."

3.1. INTERPRETATION OF THE PROVISION OF ORDER VI RULE 17

29. It is submitted that Order VI, Rule 17 of CPC has two parts. The main provision permits
the Court to allow all such amendments as may be necessary for determining the real
controversy between the parties and the second part consists of the proviso.
30. The main provision of Order 6 Rule 17 consists of two parts. The first part of the main
provision is discretionary (may) and leaves it to the Court to order amendment of
pleading. The second part of the main provision however is imperative (shall) and

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[24]
 enjoins the Court to allow all amendments which are necessary for the purpose of
determining the real question in controversy between the parties. Thus the proviso
cannot govern or control the main provision, which permits the Court to allow all such
amendments which are necessary for deciding the real controversy between the parties.
31. It is thus submitted that the real controversy test is the basic or cardinal test and it is the
primary duty of the Court to decide whether such an amendment is necessary to decide
the real dispute between the parties. If it is the amendment will be allowed; if it is not,
the amendment will be refused. The Court should also take notice of subsequent events
in order to shorten the litigation, to preserve and safeguard the rights of both parties and
to subserve the ends of justice.64

3.2. OBJECT OF THE PROVISION ORDER VI RULE 17 OF CPC-

32. In the case ofJ. Samuel v. Gattu Mahesh65, the Hon’ble Supreme Court held that,The
primary aim of the Court is to try the case on its merits and ensure that the rule of justice
prevails. For this the need is for the true facts of the case to be placed before the Court
so that the Court has access to all the relevant information in coming to its decision.
Therefore, at times it is required to permit parties to amend their plaints. The Court's
discretion to grant permission for a party to amend his pleading lies on two conditions,
firstly, no injustice must be done to the other side and secondly, the amendment must be
necessary for the purpose of determining the real question in controversy between the
parties.
33. It is submitted that in our written statement dated 06.03.2014, we had pleaded that the
consent decree was a contrary to law. In short we pleaded for that it was nullity. Thus all
the necessary ingredients which can form the basis of the plea of fraud, are already there
in the written statement. The petitioners are only seeking permission to amend the
written statement becausein view of Order VIII Rule 2 of CPC, fraud has to be
specifically pleaded. It is also the duty of the petitioners to bring to the notice of the
Court that this is necessary to determine the real question in controversy.Merely because
the applications have been filed after commencement of the trial, the same cannot be
rejected.

64
Rajesh Kumar Aggarwal&Ors. Vs. K.K.Modi&Ors (2006) 4 SCC 385.
65
J. Samuel v. Gattu Mahesh (2012) 2 SCC 300.
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[25]
 34. It is submitted that even in this present case the Court should allow all amendments that
may be necessary to determine the real question and controversy between the parties
provided it does not cause prejudice or injustice to the other party.

3.3. THERE IS A NEED FOR THE QUESTION OF TITLE TO BE GONE INTO TO

DETERMINE THE REAL CONTROVERSY BETWEEN THE PARTIES-
35. It is submitted before this Hon’ble Court that that the respondent/plaintiff had filed a
Suit, being a Special Civil Suit No. 197/2014 on 16.01.2014 asking for injunction
simpliciter against the petitioner/defendant. The Court's discretion to grant permission
for a party to amend his pleading lies on two conditions, firstly, no injustice must be
done to the other side and secondly, the amendment must be necessary for the purpose
of determining the real question in controversy between the parties.66 In the instant case,
the amendment sought by the Appellant to determine the real question in controversy.
36. The general principles as to when a mere suit for permanent injunction will lie, and
when it is necessary to file a suit for declaration and/or possession with injunction as a
consequential relief are well settled in the case of AnathulaSudhakar v P. Buchi
Reddy.67 In that case the Hon’ble Supreme Court has held that-
(i) Where a plaintiff is in lawful or peaceful possession of a property and such
possession is interfered or threatened by the defendant, a suit for an
injunction simpliciter will lie. A person has a right to protect his possession
against any person who does not prove a better title by seeking a prohibitory
injunction. But a person in wrongful possession is not entitled to an
injunction against the rightful owner.
(ii) Where the title of the plaintiff is not disputed, but he is not in possession, his
remedy is to file a suit for possession and seek in addition, if necessary, an
injunction. A person out of possession, cannot seek the relief of injunction
simpliciter, without claiming the relief of possession.
(iii) Where the plaintiff is in possession, but his title to the property is in dispute,
or under a cloud, or where the defendant asserts title thereto and there is also
a threat of dispossession from defendant, the plaintiff will have to sue for
declaration of title and the consequential relief of injunction. Where the title
of plaintiff is under a cloud or in dispute and he is not in possession or not

66
Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors Appeal (civil) 5350-5351 of 2002
67
AnathulaSudhakar v P. Buchi Reddy (2008) 4 SCC 594.
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[26]
 able to establish possession, necessarily the plaintiff will have to file a suit
for declaration, possession and injunction.
(iv) We may however clarify that a prayer for declaration will be necessary only
if the denial of title by the defendant or challenge to plaintiff's title raises a
cloud on the title of plaintiff to the property. A cloud is said to raise over a
person's title, when some apparent defect in his title to a property, or when
some prima facie right of a third party over it, is made out or shown. An
action for declaration, is the remedy to remove the cloud on the title to the
property
(v) Where the plaintiff, believing that defendant is only a trespasser or a
wrongful claimant without title, files a mere suit for injunction, and in such a
suit, the defendant discloses in his defence the details of the right or title
claimed by him, which raises a serious dispute or cloud over plaintiff's title,
then there is a need for the plaintiff, to amend the plaint and convert the suit
into one for declaration. Alternatively, he may withdraw the suit for bare
injunction, with permission of the Court to file a comprehensive suit for
declaration and injunction. He may file the suit for declaration with
consequential relief, even after the suit for injunction is dismissed, where the
suit raised only the issue of possession and not any issue of title.
37. Thus after reading the lucid exposition of law delivered by the Hon’ble Supreme Court
it is very clear that in certain cases such as this case, even when the suit is for an
injunction simpliciter, the question of title has to be gone into.
38. It is also brought to the attention of this Court that the respondent/plaintiff has cleverly
filed a suit for an injunction simpliciter. We are aware that a suit for injunction
simpliciter concerns only with possession and not the title. However this case is an
exception to that rule. The title of the respondent which he derives from the consent
decree is under disputedue to the presence of the will, thus he should have filed a suit
for declaration of title and possession. However the respondent Mr. Rajendra Thomas
very cleverly only filed a suit for possession. This conduct of the respondent clearly
shows that the title of the property in dispute is under a cloud and thus in order to
determine justice the question as to the title of the property has to be gone into in this
particular case.

WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER

[27]
 39. It is also submitted that the Trial Court would be recording its finding on title in the
present suit for injunction becausethe Plaintiff/Respondent has stated that the Consent
Decree is the basis of his title to the property in dispute. Thus there are necessary
pleadings and appropriate issues regarding the title68.The petitioner is also aware of the
principle of law that in the case of a vacant land, title often follows possession and thus
fears that a finding as to title given in an earlier injunction suit, can operate as res
judicata in a subsequent suit for declaration of title.69
40. Moreover this Hon’bleCourt in the case of SajjadanashinSayedMd v. Musa
DadabhaiUmmer70 has also held that “Where title to property is the basis of the right of
possession, a decision on the question of possession is res judicata on the question of
title to the extent that adjudication of title was essential to the judgment”. Thus it
becomes all the more necessary for this Hon’ble Court to grant leave to amend the
written statement.
41. It is also the duty of the petitioners to direct this Court’s attention to the fact that the
property in dispute is a vacant site which is also uncultivated; it is not physically
possessed, used or enjoyed.
42. In such cases the principle is that possession follows title. If two persons claim to be in
possession of a vacant site, one who is able to establish title thereto will be considered
to be in possession, as against the person who is not able to establish title.
43. This means that even though a suit relating to a vacant site is for a mere injunction and
the issue is one of possession similar to the present case, it is necessary to examine and
determine the title as a prelude for deciding the de jure possession because the issue of
title arises directly and substantially for consideration, as without a finding thereon, it
will not be possible to decide the issue of possession.71

3.4. LIBERAL APPROACH BY THE COURT-

44. It is also submitted that the Courts are also inclined to be more liberal inallowing
amendment of written statement than of plaint and,therefore, amendment cannot be
disallowed since procedural obstacles ought not to impede the dispensation of justice. 72If
the relief sought by way of amendment could also be claimed by way of a separate suit,

68
2005 (6) SCC 202.
69
SulochanaAmma vs. Narayanan Nair, 1994 (2) SCC 14.
70
SajjadanashinSayedMd v. Musa DadabhaiUmmer 2000 (3) SCC 350.
71
AnathulaSudhakar v P. Buchi Reddy, (2008) 4 SCC 594.
72
Baldev Singh and Ors v Manohar Singh and Anr,(2006) 6 SCC 498.
WRITTEN STATEMENTS ON BEHALF OF THE PETITIONER
[28]
 to avoid multiplicity of proceedings, the Court should, in the interest of justice, permit
amendment even if trial has begun. It is also submitted that there was no malafide
intention in applying for amendment.
45. The counsel for the petitioner would like to sum up the arguments by stating that It is
well settled by a catena of decisions of this Court that the rule of amendment is
essentially a rule of justice, equity and good conscience and the power of amendment
should be exercised in the larger interest of doing full and complete justice to the parties
before the Court.
46. By allowing the amendment, no prejudice would be caused to the defendants because the
defendants would also be given a fair chance at contesting the will and establishing their
rights over the property in dispute.
47. It is further submitted that the Trial Court has ample jurisdiction under Section 151 read
with Section 153 of CPC to allow amendment, if it is found necessary. Lastly, it is also
submitted that fraud vitiates everything and thus, the petitioners ought to be granted a
fair opportunity to establish that the consent decree, which is the very basis of the suit
filed by the respondents, is vitiated by fraud.

4. WHETHER THE PARTY HAS THE RIGHT UNDER SECTION 44 OF THE

INDIAN EVIDENCE ACT 1872 TO SHOW THE COURT THAT A PRIOR
CONSENT DECREE IS OBTAINED BY WAY OF FRAUD; AND WHETHER SUCH
RIGHT IS SAVED BY THE SECTION 4 OF THE CPC 1908?
48. The Definition of fraud is explained in section 17 of the Indian Contract 1872“Fraud
means and includes any of the following act committed by a party to a contract, or with
the connivance, or by his agent73,with the content to deceive another party thereto or his
agent, or to induce him to enter into the contract”74
4.1 Frauset Jus Nunquam Cohabitant75
49. Lord Chief Justice De Grey” Fraud is an extrinsic collateral act, which vitiates the most
solemn proceedings in the court of justice.Lord Coke says “It avoids all judicial acts,
ecclesiastical or temporal “
50. In applying this rule, it matter not whether the judgement impugned has been
pronounced by an inferior court/tribunal, or by the highest court of judicature in the

73
Ref. section 238 of the contract act
74
The Indian Contract,1872 ,pg no:10
75
Meaning of legal maxim-Fraud avoids all Judicial acts
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 realm, but in all cases alike it is a competent for every court, whether superior or inferior
to treat as a nullity any judgement which can be clearly shown to have obtained by
manifest fraud.76 Fraud bearing on jurisdictional fact vitiates all judicial acts whether in
Rem or in personem77.

4.2 ESSENTIALS OF FRAUD

51. The Essentials for proving fraud are (i) there must be Actual positive fraud (ii)
Intentional contrivance to keep parties &court in ignorance of real facts & obtaining
decree on his favour78
52. In the case in hand Rajendra Thomas fulfilled all the requisite condition, that there is
actual fraud played by the respondent and there was a intention to suppress the fact of
the existence of the will from the petitioners and the “Real facts “here points the Will
and the last essential is also fulfilled as the consent decree was obtained in his
favour79.The essentials of the fraud, In order that a decree whether made by ex-parte or
by consent or after contest, apparent or real, may be attacked for fraud, the fraud must
be actual positive fraud , a mediated and intentional contrivance to keep the parties in
ignorance of the real facts of the case and to obtain a decree by that contrivance80
53. Section 17 (2) of the Indian Contract act provides the Difference between Mere silence
and Active concealment:

When there is an active concealment of facts by one having knowledge or beliefs of the
facts, that can also be considered to be equivalent to a statement of facts and amount to
fraud. Active concealment is completely different from merely keeping silent as to certain
facts .By an Active concealment of different facts ,there is effort to see the other party is
not able to know the truth and he is made to believe as true which is in fact not so.81

54. In the present case Rajendra Thomas wilfully concealed the fact of existence of the will,
the petitioners obtained the will from Rajendra Thomas Daughter and even when the
matter of the will was disclosed the respondent tried to deceive the petitioner stating that
the will had no legal relevance which clearly proves that he had an intention to supress

76
Sarthakram v. Nundo Ram,11 Cwn 579
77
Satya v. Teja ,A 1975 SC 105
78
Patch v. ward 1867(3)L.R chancery Appeals.
79
Moot proposition, Pg.no:2, Para 6
80
Nandha Kumar v. Ram Jiban,18 CWN 681
81
R.K Bangia, Contracts 1, Sixth edition ,2009,Allahabad law agency, PG no: 161
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 the facts of the will in order to get the consent decree from Lisa Kamnath’s mother82.
Thus the defence of mere silence cannot be used bythe respondents in the present case

4.3SUPPRESSION OF MATERIAL FACTS AMOUNT TO FRAUD

55. By Fraud it means an intention deceives, whether it is from any expectation or
advantage to the party himself or from the ill will towards the other is immaterial. The
expression fraud involves two elements, Deceit and injury to the person deceived. And
the court held after referring to all earlier decisions, Suppression of material document
could also amount to fraud on the court83.
56. And the Supreme Court reconfirmed the same decisionon another caseBhaurao Dagdu
Parlkerv. St of Maharashtra & ors84, in the instant case the petitioner, was granted
benefits of freedom fighter on basis false vague document submitted by the petitioner
and false claims of freedom struggle participation. The court said it amounted
todisrespect to the whole country, a dishonourable venture, which was required to be
dealt with sternness to send outa message stating that they are not freedom fighter but
were traitors,sullying the name of freedom fighter. Thus the suppression of the facts of
the existence of the will is to be considered as the fraud played by the respondent on the
petitioners and court as well.85
57. In regard to the case in hand in the case of Chengalvaraya Naidu v. Jaganath86. A
litigant who approaches the court is bound to produce all documents executed by him. If
he withholds a vital document in order to gain advantage on the other side then he
would be guilty of playing fraud on the court. In the Chengalvaraya case the petitioner-
respondent came with the unclean hands and kept away the real facts in the writ petition.
The petitioner-Respondent declared that he was an under-dog, took sympathy from the
High court and received judgement in his favour instead the corporation was made out
to be a villain. The stand of the standing respondent prejudiced the cause of the
departmental proceedings with the falsehood to obtain a monetary advantage and
continued falsehood obstructed and interfered with judicial proceedings resulted in an
incorrect decisions.

82
Moot Proposition,Pg.no:2,Para 6
83
St of AP & Anr v. T. Surya Chandra Rao AIR (2005) 6 SCC 149
84
Bhaurao Dagdu Paralkar v. St of Maharashtra Air 2005(7) SCC 605
85
Moot Proposition, Pg.no 2,Para 6
86
Chengalvaraya Naidu v. JaganathAIR 1994 SC 853,855
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4.4 GRANT OF RIGHT BY SECTION 44 OF THE INDIAN EVIDENCE ACT 1872
58. Section 44 of the Indian Evidence Act 1872 entitles the court to set aside the order of
the previous court which was obtained by fraud; or when the judgement was provided
by the court of incompetent jurisdiction.
59. Section 44 the Indian Evidence Act 87 and the application of the rule in section 44 is
limited only to cases in which a decree is treated as relevant under section 40, 41, 42.
None of these sections has any application to execution proceedings. So it is not open to
the judgement-debtor to take exception to the execution of a decree upon the allegation
that it has not been passes by a court of competent jurisdiction88

4.5 APPLICATION OF SECTION 44 OF THE INDIAN EVIDENCE ACT

60. It is opened to the party against whom it is offered to avoid its effect on any of the three
grounds specified without having it set aside

(a)The incompetency or want of Jurisdiction of the court by which the decree was passed

(b)That the judgement was obtained through fraud: or

(c)That it was obtained by collusion;This section applies to both criminal and civil
proceedings89

61. Section 44 applies to all kinds of judgement, whether civil or criminal.90This section
applies to all judgements, order or decrees, which relevant under section 40, 41, 42 and
which have been proved by the adverse party. It also applies to judgement or decrees,
which are obtained by means of compromise.
62. The Principle laid down in section 11 of the CP code is substantially modified by
section 44 and the principle of Res judicata does not apply if a previous decree is proved
to have been obtained by fraud91, Not only a party to the decree but also a stranger can
show that the decree is a nullity on account of fraud, etc.92
63. Section 44 of the Indian evidence Act is not prohibitive. It allows a party to avoid a
judgement by proving fraud or collusion, but it does not destroy his substantive right

“Any party to a suit or other proceedings may show that any judgement, order or decree which is relevant
87

under sections 40, 41, 42, and which has been proved by the adverse party, was delivered by a court not
competent to deliver it, or was obtained by fraud or collusion”.
88
Biswanth v. Bhagwandin,14 CLJ 648
89
Bhagwandas v. Patel & Co, AIR 1940 BOM 131
90
Bhagwandas v. patel& Co, AIR 1940 BOM 131
91
Sri Radha v. Wajidali ,36IC 746
92
Hariram v. rameshwar, 49 CWN 354
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 which exists independently of the act. 93Section 44 lays down not only a rule of law
relating to evidence, but also a rule of procedure. It makes some provision for
impeaching on the ground of fraud judgements inter parties and judgement in rem or
judgements relating to public matters.94 It cannot be said that the judgement and decree
cannot be challenged under section 44, if the Limitation to impugne them has expired-
Bishunath Tiwari v. MstMirichi95

4.6 FORUM OF SUIT TO SET ASIDE FRAUDULENT DECREE

64. The suit to set aside a decree on the ground of fraud may be brought in the court within
whose jurisdiction the fraud was perpetrated or within whose local jurisdiction the
defendant ordinarily resides or personally works for gain 96 It is competent for every
court,superior or inferior to treat as nullity any decree of any tribunal, if it is established
that it was obtained by fraud or collusion 97 . It was contended that if this view is
accepted there would be no limitation for setting aside a decree and article 96 of the
Limitation Act would be nugatory. It was held that in spite of the anomaly, the plain
words of section 44 allow a party to show that a judgement was obtained by fraud. 98The
High court has power to quash the judgement on the Ground that it was obtained by
way of fraud and such power are derived by way of article 215 of the Indian
Constitution to set aside the Judgement99
65. It was held in Ahmedbhoyhubiboy v. Vullebhoycassumboy100 that a party to the suit in
which the Judgement was obtained, can Aver101and prove it was obtained by fraud of
the opposite party though the judgement was not reversed. But in the present case the
petitioners can prove before the court that there is actual fraud made by the Respondent
in order to obtain the consent decree in his favour. However the High court never heard
the petitioners issue on fraud and rejected the petition and gave judgement bluntly based
on the judgement of the Trail court on fact of Due Diligence but the court cannot decide
a case based on one part of the issue but the issue is also same importance.

93
Mahes v. Manindra,45 CWN 508;
94
Rajib v. Lakhan,27 C 11:CWN 660
95
Bishunath Tiwari v. Mst. Mirchi AIR 1955 Pat 66
96
Abdul Hug v. Abdul hafez , 11 CLJ636
97
Banka Behari v. Pokha, 25A 48: 22 AWN 179
98
Prayag v. Siva pd,42 CLJ 280,482:62 IC 385
99
Rex v. Recorder of leiaster 1947 (1) KB 726
100
Ahmedbhoyhubiboy v. Vullebhoycassumboy AIR (1882)6 BOM 703
101
Meaning: To declare what is true
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4.7 WHETHER SUCH RIGHT IS SAVED BY SECTION 4 OF CPC 1908
66.Section 4 of the Civil Procedure Code 1908 states the following:

“In the Absence of any specific provision in the contrary, nothing in this code shall
be deemed to limit or otherwise affect any special or local in force or any special
jurisdiction or power conferred ,or any special form of procedure prescribed ,b or
under any other law for the time being in force “102

According to section 4 (1) unless there is a special provision in contrary nothing in

the Civil Procedure code 1908, can limit any law in force (i.e) Indian Evidence Act
.so the provisions of the Indian evidence Act will prevail over the section of Civil
Procedure Code.

67. Therefore in the view of the saving clause in section 4(1) of The Civil Procedure
Code 1908, the proviso clause of order VI Rule 17 of the Civil Procedure
Code1908,which is not preceded by a non obstante clause, thus it could not come in
the way of Mrs Lisa Kamnath rights103.
68. Similarly in K.SathyaNarayanaRoa v. TusharkantaMahakul 104 The amendment
petition was filed in the trail court for amendment for the plaint and it was allowed
under the circumstances by the trail court. The defendant went for the appeal.The
court on appeal held that on the perusal of the records,it appears that initially
thepetitioners filed a petition under order6rule 17 ,CPC for amendment vide
Annexure-6 but the same has been not pressed and as such no adjudication has been
made on merits. Subsequently, he filled another petition under order 6 Rule 17, CPC
vide annexure-10. Learned Civil Judge (Senior Division), Rourkela Allowed the
same. Therefore, the Trail court has not committed any error in entertaining the
petition for amendment. So far as applicability of proviso to Order 6 Rule17, CPC is
concerned, it is stated that since only issues have been framed and effectively hearing
has not commenced by adducing evidence by the parties, in the event amendment is
allowed and liberty is granted to the defendants to file additional written statement, it
will not cause any prejudice to anybody. Therefore, this Court will not incline to

102
Code of Civil Procedure 1908,Bare Act, Pg. no: 5
103
Moot proposition, Pg.no:3,Para 11.
104

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 interfere with the impugned Order. However, liberty is granted to the Defendants to
file an additional written statement to the extent amendment of plaint was allowed.

69. Thus the Party has the right to show the Hon’ble court that the Consent decree was
vitiated by fraud .Therefore such decree must be nullified under the provision section
44 of the Indian Evidence Act 1872.Moreover such right is saved by Section 4 of the
Civil Procedure Code 1908.

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed before this Hon’ble Court that
a) It may be pleased to grant leave to the present Special Leave Petition.
b) It may be pleased to set aside the impugned judgment of the High Court and to grant leave
for the petitioner to amend her written pleading in the Special Civil Suit before the Trial court

and pass any other order or orders as this Hon’ble Court may deem fit and proper in the
Circumstances of the case and in the light justice, equity and good conscience and thus
render justice.

All of which is submitted by,

(Counsels for the Appellant)

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