Jagajeevan Panigrahi and others vs Gelala Somayya

Heard both the Counsel.

The petitioners are the plaintiffs. It is stated that the petitioners have preferred O.S.No. 152/81 on the file of the District Munsif''s Court, Sompeta, for perpetual injunction against the respondent in respect of open space. The suit filed by the plaintiffs was dismissed holding that the respondent-defendant is in possession of the property. It is stated that an appeal in A.S.No. 7/89 on the file of the Subordinate Judge, Sompeta was preferred. During the pendency of the appeal, the petitioners have filed I.A.No. 463/94 on 4-11-1994 under Order 6, Rule 17 CPC to grant permission for the amendment of the plaint. By the amendment of the plaint, the petitioners sought recovery of possession of the plaint schedule property in the event the Court comes to conclusion that the plaintiffs are not in possession and enjoyment of the plaint schedule property. The respondent resisted the amendment petition on the ground that the petition is not maintainable at that stage and the proposed amendment will alter the nature and scope of the suit and also cause prejudice to the respondent.

The learned Subordinate Judge, considered the principle laid down in Chintaparthi Venkataramana Reddy Vs. Nallam Rajamnia and Another, to the effect that "the general principle is that the power to grant amendment, the pleadings being intended to serve the ends of justice is not to be narrowly construed and should be liberally exercised unless the amendment sought would change the nature of the suit," and the scope of the suit, held that the cause of action changes if proposed amendment is permitted. He has observed that the suit was filed for mere injunction and there is no averment that from what date or time, the defendant is in unlawful possession of the property and therefore, the cause of action in a suit for recovery of possession would be different from the suit for mere injunction, and further the amendment is sought after 14 years after filing of the suit.

The lower Court further held in the judgment that petitioners were not in possession of the suit property on the date of filing of the suit and the respondent was found in possession. If the proposed amendment is permitted, the amendment dates back to the date of filing of the suit and therefore, the respondent will not be in a position to take the plea of adverse possession. He also observed that it may not be proper at this stage to state whether the possession by the respondent over the suit property from the date of filing of the suit amounts to adverse possession or not, and if it amounts to adverse possession, the petitioners must have lost the title, if any, they were having in the suit property, and if the proposed amendment is permitted, prejudice will be caused to flic respondent since he cannot take the plea of adverse possession and it deprives the respondent of his right over property by adverse possession and accordingly dismissed the petition.

The learned Counsel for the petitioners urges before me that according to the general principle of amendment of plaint, a party can amend the plaint even at the appellate stage and that the amendment of pleading should not be rejected, but granted, if the cause of action and the nature of the suit are not changed. He reiterated the judgment relied upon by the lower Court that the general principle is that the power to grant amendment to the pleadings being intended to serve the ends of justice is not to be narrowly construed but should be liberally exercised unless the amendment sought would change the nature of the suit. He submits that the amendment seeking the relief of recovery of possession of the plaint schedule property in the event Court comes to the conclusion that the plaintiffs are not in possession and enjoyment of the plaint schedule property will not change the nature of the suit and the respondent will not be prejudiced. He has stated that the lower Court has dismissed the application only on the ground that it is belated, and as such the order of the lower Court is liable to be set aside.

The learned Counsel for the petitioner vehemently submitted that the nature of the suit will not be altered and the cause of action also will not be altered by the proposed amendment though he admits that originally the plaint was filed for mere injunction and now the petitioners-plaintiffs are seeking recovery of possession on the ground of title to the property.

He relies on the judgment of this Court in Ch. Venkata Subrahmanya Babu v. Chanshni Lakshmana Das, 1996 (4) ALD 522 where in a suit for injunction and damages, an application filed for recovery of possession of the suit premises, though the trial Court rejected it on the ground that the nature of the suit would be changed, was allowed by High Court and held as under :

"In view of the plea taken by defendant, plaintiff sought an amendment of plaint converting the suit into one for possession - Cause of action remained the same -Character of suit cannot be said to be changed - Amendment has to be allowed".

The facts in the instant case are different from the case referred to above. It was also observed in the said case that the application for amendment of the plaint was filed at the stage after plaintiffs concluded the evidence, hi view of this, the said judgment has no application to the facts of the case. To the same effect is the case in Adusumilli Venkateswar Rao and another Vs. Chalasani Hymavathi, wherein it was held as under:

"Suit for permanent injunction -Application for amendment of plaint seeking for conversion of suit into one for possession - Application can be allowed since such conversion does not amount to alteration of nature of suit."

In this case, the learned Judge was dealing with a case filed under Specific Relief Act wherein it was held that in a suit filed u/s 36 of the Specific Relief Act (1963), for permanent injunction and subsequent application seeking conversion of suit into one for possession, can be allowed since such conversion does not amount to alteration of the nature of suit, and also the application filed beyond six months from date on which defendants came into possession of property pending suit is not barred by limitation. In para 4 of the judgment it was held as under:

"So far as the other contention is concerned, the suit being a suit on civil side for a relief of possession and not being a summary suit u/s 6 of the Specific Relief Act, the contention that the conversion application is filed beyond six months of the date on which, even according to the plaintiff, the defendant entered into possession, is equally untenable. This contention loses sight of the well known distinction between summary suits filed u/s 6 of the Specific Relief Act and regular suits for possession. In the latter case, the period of six months'' limitation is not attracted and it is open to the plaintiff to sue for possession on the basis of the title and if the plaintiff proves title, it will be for the defendants to establish as to how the said title is extinguished by a adverse possession. Therefore, it cannot be said that the application filed beyond six months from the date on which the defendants came into possession pending suit, is barred by limitation".

He also relied on a decision rendered in Ganpat Singh Vs. Sher Bahadur Singh and Others, wherein it was held that in a suit for declaration of title with permanent injunction restraining defendants from interfering with possession of plaintiff, the trial Court found that plaintiff was owner but defendant was in possession and hence suit was dismissed. Subsequently amendment of plaint adding relief of possession was allowed at appellate stage. The facts in the said suit were different. The said suit itself was for declaration of title and injunction and the said Court itself has held as under:

"that the plaintiffs had asserted and proved their title. The necessary consequence was that if the defendants were in possession without tide, the plaintiffs could claim for delivery of possession provided that relief was not barred by limitation or any other law. '' The plaintiffs by the amendment sought the relief of possession in the alternative. There is no bar in claiming a relief in the alternative, In these circumstances the amendment ought to have been allowed."

The learned Judge has clearly held that on the facts of that case, amendment could be allowed provided the relief was not barred by limitation of any other law. As such, the said decision is not helpful to the petitioners in the present case.

He also relied on a decision of a four-Judge Bench of Apex Court in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., wherein it was held as under:

"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."

In yet another case in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , a three Judge Bench of Apex Court has held as under:

"All amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same; can the amendment be allowed without injustice to the other side, or can it not?"

The learned Counsel for the respondent submits that actually the lower Court has dismissed the prayer of the petition on the valid grounds considering the facts of the case. The suit for injunction was filed as far back as in 1981 and the said suit was dismissed by the trial Court holding that from the date of the filing of the suit the petitioners were not in possession of the suit property, but the defendant was in possession of the suit property and that the petitioners have preferred appeal and kept quite till 1994 and on 4-11-1994 they filed an application for amendment of plaint seeking the relief of recovery of possession, if it is found by the appellate Court that the plaintiffs were not in possession when the suit was filed, the right of adverse possession which has accrued to the respondent from the year 1981 will be lost, the nature of the suit would be changed and that respondent-defendant will lose the right of raising the plea of adverse possession against the petitioners and that the respondent will be seriously prejudiced and the ends of justice is in his favour in negativing the amendment petition.

In the instant case, suit for injunction was filed in 1981, and the trial Court dismissed the suit holding that the petitioners are not in possession and defendant is in possession and an appeal was also filed before the Subordinate Judge, Sompeta and during the pendency of the appeal on 4-11-1994 the petitioners preferred petition for amendment of plaint under Order 6, Rule 17 CPC read with Section 151 averring amendment of the plaint to the effect of recovery of possession of the plaint schedule property from the defendant in the event that the defendant is found to be possession of the property.

The lower Appellate Court considering the pleas of the petitioners and respondent rejected the application on the ground that respondent-defendant will be deprived of his valuable right of raising the defence of adverse possession accrued to him during the pendency of the suit and appeal and respondent will be prejudiced.

In the light of the ratio decided by the two judgments of the Supreme Court referred to above and taking into consideration the facts of the instant case, the petitioners cannot seek amendment at a belated stage setting up a claim for possession of suit property for the institution of a fresh suit would be barred by limitation. The amendment cannot be allowed, as it seriously prejudices the respondent and the valuable right accrued to the respondent during the pendency of the suit to raise the plea of adverse possession would be defeated.

In view of the above facts, the Court below was right in dismissing the petition of the petitioners. No interference is called for. There is no error of jurisdiction or illegality in the order passed by the appellate Court. The C.R.P. is accordingly dismissed with costs.