Banwari Lal Association Pvt. Ltd. vs Basanti Devi Family Trust and Others

S.K. Gupta, J.—This revision is directed against the order dated 25.3.2009, passed by Additional District Judge, Court No. 1, Ghaziabad in S.C.C. Suit No. 33 of 2004, Basanti Devi Family Trust and Ors. v. Mahesh Chandra and Ors., whereby the amendment application (Paper No. 177C) for grant of mesne profit for the period from the institution of suit until the delivery of possession to the Plaintiff @ Rs. 15,000 per month was allowed.

The Plaintiffs-Respondents (Respondents first set) hereinafter referred to as ''Plaintiffs'', filed S.C.C. Suit against the Defendants-Respondents (Respondents second set) hereinafter referred to as Respondents for the following reliefs:

The Plaintiffs subsequently filed an application for an amendment of the plaint under Order VI, Rule 17 of C.P.C, by adding the following prayer :

The Additional District Judge, Court No. 1, Ghaziabad by its order dated 25.3.2009 allowed the application of the Plaintiffs. Hence the present revision.

Learned Counsel for the revisionist has submitted that the court below has exceeded its jurisdiction by allowing the amendment which was otherwise barred by time. It has further been submitted by the learned Counsel that the amendment ought not to be allowed under Order VI, Rule 17 of Code of CPC after the commencement of trial as the Plaintiff was not diligent and could have raised the matter before the commencement of the trial.

On the other hand learned Counsel for the Plaintiffs has submitted that the court below was fully justified in permitting the revisionist to incorporate further relief for the recovery of compensation/ mesne profit @ Rs. 15,000 per month from the date of the institution of the suit until the delivery of the possession to the Plaintiffs, in view of the provisions of Order XX, Rule 12 of Code of CPC It has been further submitted by the learned Counsel that the proviso of Order VI, Rule 17 is not applicable in the case, since the court below is fully empowered to allow the additional relief as provided under Order XX, Rule 12 of C.P.C.

It has been further submitted by the learned Counsel that the necessary factual basis for grant of additional relief was already laid down in paragraph 11 of the unamended plaint.

Heard Sri K. K. Arora, learned Counsel for the revisionist and Sri M. K. Gupta, learned Counsel appearing on behalf of the Plaintiffs-Respondent Nos. 1 to 3/1 and perused the record and considered the facts and circumstances of the case.

The only controversy involved in the matter is whether the additional relief sought to be incorporated by the Plaintiffs is barred by time and whether the proviso to Order VI, Rule 17 is applicable in the matter.

Before I proceed with the matter, it is useful to refer to paragraph 11 of the plaint as well as the provisions of Order XX, Rule 12 of C.P.C., which are reproduced as hereunder :

Paragraph 11 of the unamended plaint:

Order XX, Rule 12 of C.P.C. :

Decree for possession and mesne profits.--(1) Where a suit is for the recovery of possession of immovable property and for rent of mesne profits, the Court may pass a decree:

(a) for the possession of the property ;

(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent ;

(ba) for the mesne profits or directing an inquiry as to such mesne profits ;

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until,--

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree, whichever event first occurs.

(2) Where an inquiry is directed under Clause (b) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.

The paragraph 11 of the plaint has laid down the necessary factual basis for the additional relief claimed by the Plaintiffs, wherein, it has been specifically stated that the property in dispute can be let out very easily @ Rs. 15,000 per month, therefore, the Plaintiffs are entitled for Rs. 15,000 per month towards the mesne profit/damages from 3.8.2004 (date of the institution of the suit) until the delivery of possession to the Plaintiffs.

The Order XX, Rule 12 of Code of CPC deals with the decree to be passed in a suit for possession of immovable property and for rent of mesne profits, past and future against the person in possession of suit property.

Bare perusal of Order XX, Rule 12 of C.P.C., particularly Sub-clause (c) of the said rule clearly empowers the Court to direct an inquiry as to grant of rent or mesne profit from the institution of the suit until the delivery of possession to the decree-holder.

Learned Counsel for the revisionist has not denied that the suit is not governed by Order XX, Rule 12 of Code of CPC The provisions of aforesaid Order XX, Rule 12 is fully applicable in the matter. The Plaintiffs initially alongwith the prayer for the possession of the immovable property also claimed mesne profit which had accrued on the property for the period prior to the institution of the suit. Since, the Plaintiffs had claimed a relief for possession and mesne profits as contemplated by Order XX, Rule 12, therefore, the court below was empowered to grant future mesne profit also, even, if it was not claimed by the Plaintiffs. The Court has only to see whether the case of the Plaintiff is governed by Order XX, Rule 12 of Code of CPC In case, if it is applicable, Court is fully empowered to grant future mesne profit also. Since the suit is fully governed by the provisions of Order XX, Rule 12 of C.P.C., therefore, the question with regard to the limitation (to incorporate additional relief as sought by the Plaintiff) and applicability of proviso Order VI, Rule 17 of Code of CPC does not lie.

The Hon''ble Apex Court in Pankaja and Anr. v. Yellappa (D.) by L. Rs. and Ors., 2004 (3) AWC 2733 (SC), has held as follows :

The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

This Court in the case of L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., has held :

It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it if that is required in the interests of justice.

This view of this Court has, since, been followed by a 3-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and Others, Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice.

The Hon''ble Apex Court in the case of Gopalakrishna Pillai and Ors. v. Menakshi Ayal and Ors., has held as under :

Order XX, Rule 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a Plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order VII, Rules 1 and 2 and Order VII, Rule 7 of the Code of CPC and Section 7(1) of the Court Fees Act, the Plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits the Plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moretime, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of Order XX, Rule 12 apply. But in a suit to which the provisions of Order XX, Rule 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief, though it is not specifically asked for in the plaint, see Basavayya v. Guruvayya, ILR (1952) Mad 173 ; AIR 1951 Mad 938 (FB). In Fakharuddin Mahomed Ahsan v. Official Trustee of Bengal, ILR (1882) Cal 178 , Sir R.P. Collier observed.

The Hon''ble Supreme Court in the case of Rajesh Kumar Agarwal v. K. K. Madi and Ors. (2006) (2) AWC 1886, has held as follows :

The rule of amendment is essentially a rule of justice, equity and good conscious and the power of the amendment should be exercised in the larger interest or doing full and complete justice to the parties before the Court.... It is settled law that the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing prayer for amendment.

Learned Counsel for the revisionist has placed reliance on the decision of the Apex Court in the case of Muni Lal v. Oriental Fire and General Insurance Company Ltd. and Anr. The said judgment has no bearing in the facts of the present case. In my opinion it is clearly distinguishable on facts.

In the present case, the suit is governed by Order XX, Rule 12 of Code of CPC and the Court has been empowered to grant future mesne profit. In the case of Muni Lal (supra) the amendment was sought under Order VI, Rule 17 to incorporate consequential relief in the appellate court. The said case was not governed by Order XX, Rule 12 of Code of CPC as such the revisionist cannot claim any assistance from the said case, particularly in view of the several decisions of the Apex Court where the question of limitation was considered and was held that the application for amendment of the pleadings should not be disallowed merely because it is opposed on the ground, that the same is barred by limitation. On the contrary application has to be considered bearing in mind the discretion, i.e., vested with the Court in allowing or disallowing such amendment in the interest of justice.

The additional relief in the same set of facts alleged in the plaint is only additional approach to the same facts.

In Pasupuleti Venkateswarlu Vs. The Motor and General Traders, wherein the Court was dealing with the basis of cause of action and character of the right held as follows :

It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date suitor institutes the legal proeedings. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal (Emphasis supplied), if cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision of fair-play is not violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances (Emphasis supplied). Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court.

The revisionist has not laid down any valid foundation to his argument, it has been spun around thin air and it is difficult to uphold the contention of the revisionist. No fault can be found with the approach adopted by the court below. The court below has assigned cogent, convincing and satisfactory reasons to allow the amendment application of the Plaintiff. Argument of the revisionist has no substane and is wholly untenable and erroneous.

I do not see any illegality or infirmity in the order passed by the court below.

In view of the above discussion, the present revision is accordingly dismissed.