Hukam Pal vs Bharto and others

S.S. Kang, J.

At issue, in this revision petition under Section 115 of the Code of Civil Procedure is the legality and validity of the order dated September 14, 1983 of the learned Sub Judge 1st Class, Charkhi Dadri whereby he has dismissed an application under Order 6 Rule 17 C.P.C. for the amendment of the plaint filed by the petitioner.

It has been filed in the following circumstances : Smt. Bharto, father''s sister of Hukam Pal plaintiffpetitioner, sold land in dispute to respondents Nos. 2 to 11. The petitioner on June 15, 1982 filed a suit for possession by way of preemption on the plea that, being the vendor''s brother''s son, he had a superior right of preemption. Before even the defendantrespondents could file their written statement, the petitioner filed an application under Rule 17 of Order 6 C.P.C. for amendment of the plaint seeking permission to plead that the sale by Smt. Bharto was in respect of the suit land to which she had succeeded from her father. This application was opposed by the vendee defendants. They pleaded that the period of limitation for filing the suit had already expired. They had acquired a valuable right and the same could not be defeated by allowing the proposed amendment. The proposed amendment would tantamount to setting up a new plea for the plaintiff after the lapse of the time for filing the suit. The learned trial Judge rejected this application.

Mr. R.S. Ahluwalia, learned counsel for the petitioner has argued that the suit was filed on behalf of a minor. Necessary facts constituting the cause of action had been mentioned in the application. However by inadvertence it was not mentioned that the vendor had succeeded to the land in dispute through her father. By the proposed amendment the petitioner only sought to clarify the position. He did not want to introduce a new cause of action or a new ground for preemption. The application for amendment was bona fide. The object of the law of procedure is to advance justice and not to obstruct it; and if a party or its counsel is inefficient in setting out its case initially, the short comings can certainly be removed by amendment of the pleadings and the opposite party can be compensated by costs for the inconvenience or expenses caused from omission. On the other hand, learned counsel for the respondents has argued that without pleading that the land in dispute had been inherited by the vendor from her father, the petitioner could not succeed in the suit. The very material ingredient of the cause of action had not been alleged. In support of his case, he cited before me the decisions of this Court in Shankar Singh v. Chanan Singh, 1968 PLR 455, Gurmukh Singh v. Dalip Singh, 1971 PLR 880 and Jarnail Singh v. Prem and others, 1984 PLJ 205.

In the present case, the relationship of the plaintiffpetitioner with the vendor has been clearly brought out in the plaint. However, it has not been averred that the land in dispute came to the vendor from her father. This was an inadvertent omission. So an application was made to supply this detail. Neither an effort was being made to set up a new case on the basis of a new cause of action nor a new ground for preemption was sought to be added. The application for amendment had been moved at the earliest occasion. The defendantrespondents had yet to file their written statement. The application was not made mala fide. In this country, where large number of people are illiterate the Courts cannot be unrealistic and take technical view of the law relating to pleadings. Indeed, it is well settled now that the Courts should be liberal in allowing the amendments. It is true that though statutory in nature, the right of preemption has been held to be piratical. Even then this right emanates from valid statute and so long as it is there on the statute book, it has to be enforced by the Courts. Even while interpreting and applying the provisions of the Preemption Act, the approach of the Courts cannot be too technical and pedantic. In a recent Division Bench judgment of this Court in Surja Ram and another v. Sohan Lal and others, 1984 PLJ 410, the law on the subject of amendment of pleadings in preemption suit has been laid down succinctly. It has been observed as under :

"It is well settled that if through a bona fide mistake the plaintiff has been shown to be a major whereas he is a minor at the time of the institution of the suit, the amendment of the plaint should be allowed. In the said view we are fortified by the observations of the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 S.C. 1267, wherein it has been held that the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any narrow or technical limitations. The rules of procedure are intended to be a handmaid to the administration of justice and a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of 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 mala fide, or that by his blunder he had caused injury to his opponent which may not be compensated for by any order of costs. It was further observed that however negligent or careless may have been the first omission, and, however, late the proposed amendment, may be allowed if it can be made without injustice to the other side. In that case too, the suit was instituted misdescribing the plaintiff. The amendment of the plaint was allowed substituting the real plaintiff.''''

Similarly, the principles regarding amendment of pleadings have been laid by final Court in M/s. Ganesh Trading Co. v. Moti Ram, 1978 PLR 458, as follows :

"that it is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which cured of its short comings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective stage of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional Court fees, which may be payable, or of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayer for amendment of pleadings.''''

D.S. Tewatia, J. in Krishan v. Charan Singh and others, 1980 R.L.R. 254, allowed an amendment in the plaint and permitted the plaintiff to plead that he was the nephew of defendant Nos. 2 to 4.

The cases cited by the learned counsel for the respondents are of no help to him. These are the decisions on the peculiar facts of those cases. Thus, facts and issues involved in those cases were materially dissimilar to the facts and issues in the present case.

In Shankar Singh''s case (supra) the plaintiff had not given in the plaint his relationship with the vendors. He had only stated that the vendors were his collaterals. However, such a relationship by itself did not confer any right of preemption. A particular defined relationship does give a right of preemption and if the right of preemption is based on such relationship, then obviously his relationship has to be mentioned in the plaint as a ground under Section 15 of the Punjab Preemption Act. After the period of limitation, an application was made seeking permission to plead that one of the vendors was cousin of the plaintiff and other vendors were his nephews. This was disallowed because relationship is a ground for preempting a sale.

In Gurmukh Singh''s case (supra), originally in the plaint the claim for preemption was based on relationship; realising that this claim was bound to fail, the plaintiff sought to fall back upon another ground namely of his being a cosharer. This application was made after the period of limitation. In this context, it was observed that amendment of the plaint cannot be allowed to add a new cause of action or a new ground for sustaining the suit for preemption beyond the period of limitation.

In Jarnail Singh''s case (supra), suit was filed on the ground that the plaintiff was father''s sister''s son of the vendor. This relationship was denied by the defendant. At the stage of rebuttal, an application was made for amendment of the plaint pleading that the plaintiff was the father''s brother''s son of the vendor. In this context, it was held that the trial Court had illegally allowed the amendment.

For the foregoing reasons, I hold that the learned trial Judge has failed to exercise his jurisdiction vested in him by declining the amendment. I allow this revision petition, set aside the impugned order and allow the application for amendment. No costs.