Hira Chand and Others vs Gopal

R.R. Yadav, J.—The instant revision is filed by the revisionists challenging the order dated 20.2.1995 passed by the learned Additional Civil Judge (Jr. Division-cum-Judicial Magistrate, First Class. No. 3, Bhilwara in Original Civil Case No. 1/91.

The suit was filed by the Plaintiffs Petitioners for eviction against the Defendant-tenant on the ground of default as well as on the ground that the tenant has built his own house and he is not living in the premises for last six months.

While describing the suit-property in paragraph No. 3 of the plaint, it was by bona fide mistake in place of first floor, second floor was typed. When the mistake become known to the Plaintiffs, an application under Order VI, Rule 17, read with Section 151, CPC was moved to amend the said typographical mistake and it was prayed that in place of second floor, fist floor may be amended.

The aforesaid application was opposed by the Defendant- tenant on the ground, inter alia, that if this amendment is allowed by amending first floor in place of second floor, the nature of suit will be changed. According to the Defendant-tenant in the peculiar facts and circumstance of the case, the mistake cannot be said to be bona fade typographical mistake.

The instant revision was presented before this Court against the aforesaid order and this Court on 7.4.1995 issued notice to the Defendant-tenant to show cause as to why this revision be not admitted and allowed. After service of notice, the Defendant-tenant is represented by Learned Counsel Shri Sanjeev Johri.

I have heard Learned Counsel for the parties at length and critically gone through the impugned order passed by the learned trial Court rejecting the aforesaid amendment application.

It is apparent from perusal of the impugned order that the learned trial Court has placed reliance on several decisions of this Court in rejecting the amendment application but it escaped its notice the judgment reported in A.K. Gupta and Sons Vs. Damodar Valley Corporation,

According to the Learned Counsel for the Defendant-tenant if the proposed amendment is allowed by amending first floor in place of second floor in Paragraph No. 3 of the Plaintiff, the nature of the suit would change.

The basic question before this Court is whether the amendment introduced a new cause of action or a new case? I do not think it does so. In my humble opinion, the suit is filed on the basis of contract of tenancy between the Plaintiffs as well as tenant on the ground of default and also on the ground that the tenant has built his own house and he is not living in the premises for last six months.

Here in the present case, the rights and liability of the Plaintiffs and Defendant-tenant are to be decided on the basis of contract of tenancy, therefore, if in place of first floor, second floor is amended, it will not change the nature of the suit. The suit was for ejectment and the suit shall remain a suit for ejectment. In my considered opinion, the amendment seeks to introduce a case based on the same cause of action and an argument contrary to it, is not acceptable to me.

It is well to remember that the rules of procedure are intended to be handmaid to the administration of justice. 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 the party unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent, which cannot he compensated by an order of cost. However, negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed, if it cannot he without injustice to other side.

In the present case, nothing has been brought to my notice that if the proposed amendment is allowed, it will cause injustice to the other side anti he cannot be compensated in terms of costs. As such, the order passed by the learned trial Court refusing amendment on 20.2.1995 is hereby set aside and the instant revision is allowed with a direction that the Plaintiffs- revisionists will be allowed to amend their plaint as prayed in their amendment application under Order VI, Rule 17, CPC subject to payment of cost of Rs. 1100/- to the Defendant-tenant.

As a result of the aforementioned discussion, the instant revision is allowed and the impugned order dated 20.2.1995 passed by the learned trial Court is hereby set aside. Application under Order VI, Rule 17, CPC is allowed subject to payment of cost of Rs. 1100/- to the Defendant tenant.