Jai Prakash Singh and Others vs Additional District Judge, Raebareli and Others

Dr. Devendra Kumar Arora, J—At the very outset, it is relevant to mention that during the pendency of this writ petition, petitioner No. 1 (Jai Prakash Singh) died and as such his legal heirs, namely, Harish Kumar Singh (son) and Smt. Ram Dulari (wife) have been substituted in his place as petitioner Nos. 1/1 and 1/2. By means of present writ petition, petitioners have challenged the order dated 24.3.2007 passed by Additional District Judge, Court No. 1, Raebareli (opposite party No. 1) in Appeal No. 36/80; Jagdamba Singh and another v. Jung Bahadur Singh and another, whereby the opposite party No. 1 has allowed the amendment application moved by the opposite party Nos. 2 and 3.

Brief facts of the case are that opposite party No. 2 and 3 filed a suit for declaration and possession, on the basis of successions, before the IVth Additional Munsif Magistrate, Raebareli. After considering the facts and hearing both the parties, the Munsif Magistrate had dismissed the suit for declaration and possession preferred by opposite party Nos. 2 and 3 on 29.1.1980 inter alia on the ground that it is not proved that Lalla Singh could legally inherit the rights of Smt. Umrai. It was also held by the trial Court that the plaintiffs have claimed their rights only on the ground of inheritance and not on the ground of adverse possession. It was also held that the plaintiffs cannot be declared to be owner of the disputed land.

Against the aforesaid judgment and order passed by the trial Court, the opposite party Nos. 2 and 3 preferred an appeal, which was allowed by opposite party No. 1 on the ground that due to long standing possession, the plaintiffs have perfected their right by prescription. It was further held by the learned Additional District Judge/opposite party No. 1 that even if, the plea of adverse possession was not taken, it does not prevent the Court from declaring that the appellant have perfected their rights by adverse possession.

Feeling aggrieved by the judgment of first appellate Court, the father of petitioners had preferred a Second Appeal before the High Court and the High Court after hearing both the parties, has set aside the judgment and decree passed by first appellate Court on 22.12.2004 and remitted the matter to first appellate Court to decide the matter afresh after giving opportunity of hearing to the parties. After passing of judgment dated 20.12.2004, the opposite party No. 2 and 3 filed an application in the suit under Order VI Rule 17 C.P.C. for amending the plaint and sought a plea of adverse possession. Against the said amendment application, the petitioners had filed an objection before the opposite party No. 1 stating therein that there is inordinate delay of several long years and through amendment they want to fill the lacunae, which is not permissible as it will change the basic nature. It has further been stated in the objection that two different statement cannot run concurrently in the pleadings relating to successions and adverse possession, as such the amendment application is liable to be rejected.

Learned counsel for the petitioners has contended that the Court below, without considering the facts and legal aspects of the case, allowed the amendment application in arbitrary manner vide order dated 24.3.2007. It is well-settled law that any amendment under Order VI Rule 17 be made at an earliest stage. The appellate Court ought to have decided the appeal on the basis of pleadings and evidence on record, but in the instant case the appellate Court provided to raise new plea not originally pleaded by way of amendment in an arbitrary manner. Two different pleadings one of succession and another is of adverse possession cannot run concurrently, therefore the opposite party No. 1 has committed manifest error of law in allowing the amendment application, which changed the nature of original suit.

Learned Counsel for the contesting respondent, while opposing the writ petition, has submitted that Additional District Judge, Court No. 1, Raebareli (opposite party No. 1) on a consideration of the entire facts and law applicable thereto, allowed the application for amendment vide order dated 24.3.2007 on payment of Rs. 500/- as cost. It has been submitted that after the order dated 24.3.2007, the amendment in the plaint had already been incorporated by the answering opposite parties and the cost has already been deposited in Court but the petitioners have declined to receive the cost. The Court below on a consideration of the entire facts and circumstances of the case as well as the law laid down by the Apex Court and this Court, wherein it has been propounded that rule of procedure are hand made and should not be allowed to be mistress of justice and further merits and demerits of the case shall not be considered while allowing the application for amendment, hence the amendment can be allowed at any stage of the proceedings, if it does not change the nature of the suit.

In order to decide the lis involved in this petition, it would be proper to refer the legal proposition laid down in various case laws on the subject.

In Vineet Kumar Vs. Mangal Sain Wadhera, AIR 1985 SC 817 : (1984) 1 SCALE 31 : (1984) 3 SCC 352 : (1984) 2 SCR 333 : (1984) 16 UJ 778 , the Hon''ble Supreme Court held that normally amendment is not allowed if it changes the cause of action, but where the amendment does not constitute the addition of a new cause of action, or raises a new case, but amounts to not more than adding to the facts already on record, the amendment should be allowed even after the statutory period of limitation.

In Jagdish Singh Vs. Natthu Singh, AIR 1992 SC 1604 : (1991) 5 JT 400 : (1991) 2 SCALE 1363 : (1992) 1 SCC 647 : (1991) 2 SCR 567 Supp : (1992) 1 UJ 483 , the Hon''ble Apex Court with regard to amendment in plaint held as under:

"12.....the Court may allow to certain extent even the conversion of the nature of the suit, provided it does not give rise to entirely a new cause of action. An amendment sought in a plaint filed for specific performance may be allowed to be done without abandoning the said relief about amendment seeking for damages for breach of contract may be permitted."

In the case of Shallendr Amar Singh v. Harnam Singh Cornalius, decided on 4.12.1996, this Court observed that dispossession and adverse possession are two different concepts, which are not mutual to each other.

In G. Nagamma and Another Vs. Siromenamma and Another, (1998) 4 JT 484 : (1995) 7 SCALE 353 : (1996) 2 SCC 25 : (1995) 5 SCR 701 Supp , the Hon''ble Apex Court held that in an application under Order VI, Rule 17, even an alternative relief can be sought, however, it should not change the cause of action or materially affect the relief claimed earlier.

In Ram Roop and Others Vs. Deputy Director of Consolidation, Varanasi and Others, (2002) 1 AWC 615 : (2002) 93 RD 123 , this Court observed as under:

"6. It is well-settled in law that a new case based upon the facts, which were available to the plaintiff at the time of filing of original plaint but were not pleaded in the original plaint, cannot be permitted to be set up by way of amendment. A reference in this regard may be made to the decisions in Basanti Dei Vs. Bijayakrushna Patnaik and Others, AIR 1976 Ori 218 : (1976) 42 CLT 933 , Fakir Charan Mohanty v. Krutibaskar, AIR 1984 NOC 284 and Pull Bench decision of Madhya Pradesh High Court in Lalit Lazarus Vs. Smt. Lavina Lazarus and Another, AIR 1979 MP 70 : (1980) ILR (MP) 1099 : (1979) JLJ 299 : (1979) 24 MPLJ 184 : (1979) MPLJ 184 ) and also a decision of this Court in Smt. Gayatri Devi Vs. Om Prakash Gautam and Others, AIR 1985 All 356 ."

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), AIR 2005 SC 3353 : (2005) 3 ARBLR 81 : (2005) 6 JT 486 : (2005) 6 SCC 344 : (2005) 1 SCR 929 Supp : (2005) AIRSCW 3827 : (2005) 5 Supreme 236 , the Apex Court has held that if the nature of the suit is going to be changed and it has not been proved on the basis of pleadings that the plaintiff was not aware regarding the fact or development which was to be amended by amendment application, the amendment is not permissible.

In Rama Shanker Keshari @ Patili v. 1st Additional District Judge, Sonebhadra and others, 2006 (3) ADJ 333, this Court observed as under:

"9. The decision of the Trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case."

Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya vs. Maung Mo HnaungAIR 1922 249 (Privy Council) , succinctly summarizes the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings:

"All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."

In view of the above, the case laws relied upon by the respondents are of no avail. Even in the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, AIR 2007 SC 1663 : (2007) 3 CTC 400 : (2007) 5 JT 476 : (2007) 5 SCALE 831 : (2007) 5 SCC 602 : (2007) 6 SCR 306 : (2007) AIRSCW 2545 : (2007) 3 Supreme 582 , the Apex Court observed that the proviso to Order VI Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the Court comes to a conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.

In view of Order VI Rule 17 of the Code of Civil Procedure, no application for amendment shall be allowed after the trial has commenced unless the Court comes to conclusion that inspite of due diligence the party could not have raised the matter before the commencement of the trial. Moreover, there is no explanation in the application for amendment as to why it could not be brought on record at the first instance and why there was such a long delay. In the circumstances narrated above, the case laws relied upon by the respondents are of no help to them.

In view of the legal proposition enunciated in Ram Roop and Others Vs. Deputy Director of Consolidation, Varanasi and Others, (2002) 1 AWC 615 : (2002) 93 RD 123 , Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, AIR 2007 SC 1663 : (2007) 3 CTC 400 : (2007) 5 JT 476 : (2007) 5 SCALE 831 : (2007) 5 SCC 602 : (2007) 6 SCR 306 : (2007) AIRSCW 2545 : (2007) 3 Supreme 582 and Gautam Sarup Vs. Leela Jetly and Others, (2008) 3 CLT 186 : (2008) 4 SCALE 459 : (2008) 7 SCC 85 , Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, (2009) 13 JT 366 : (2009) 10 SCC 84 : (2009) 15 SCR 103 : (2009) 10 UJ 4850 , it is imminently clear that the facts, which were within the knowledge of the plaintiff at the time of filing of original plaint but were not pleaded in the original plaint, cannot be permitted to be set up by way of amendment.

Having examined the instant matter in the light of the aforesaid legal proposition, it comes out that respondent Nos. 2 and 3 filed a suit claiming title by succession and sought a declaration in this regard. As averred above, earlier the matter went up to the second appeal stage and was sent back to the first appellate Court for deciding the appeal afresh. It may be noted that the suit of respondent No. 2 had been dismissed by the trial Court. When the matter was remanded, the private respondent Nos. 2 and 3 filed an application, seeking amendment in the suit by taking a plea of adverse possession on the basis of observation made by this Court in the second appeal. In my opinion, the learned Additional District Judge, Court No. 1, Raebareli committed an error in allowing the said amendment, overlooking the fact that it had changed the very nature of the suit by claiming title on the basis of adverse possession and abandoning the earlier plea of title by succession.

For the reasons aforesaid, the writ petition is allowed and the impugned order dated 24.3.2007 passed by Additional District Judge, Court No. 1, Raebareli (opposite party No. 1) in Appeal No. 36/80; Jagdamba Singh and another v. Jung Bahadur Singh and another, is hereby set aside. As the parties are litigating since the year 1976 when the regular suit was filed, the lower Court is directed to make an earnest endeavor to conclude the proceedings by 31.12.2015. The trial Court is further directed not to grant any adjournment at the drop of hat and only genuine and in exceptional circumstances, adjournment should be permitted so that precious time of the Court is not wasted and long pending litigation comes to an end. Costs easy.