Jasrath Singh and Others vs Kamruddin and Another

Sujoy Paul, J.—By filing this petition under Article 227 of the Constitution petitioner has challenged the order dated 19/04/2012, whereby the Court below has allowed the application of the plaintiff filed under Order 6 Rule 17 of C.P.C. Plaintiff filed a suit, which was registered as case No. 101-A/2006. The suit was filed for permanent injunction. It was prayed in the said suit that plaintiff be declared in possession in survey No. 205 village Dhamarahi. Further declaration is prayed that the defendants, agents or relatives have no right and they be restrained from creating any hindrance on the said survey number. An application under Order 6 Rule 17 C.P.C Annexure-P/4 is filed on 10/02/2012 whereas the suit was filed on 11/08/2006. It is stated in the application Annexure-P/4 that during pendency of the suit, in the month of May, 2011 on the land in question, the defendants have illegally and forcibly entered and constructed a pakka room, boundary wall etc. On the basis of the subsequent event and changed circumstances, it was prayed that in lieu of "permanent injunction", suit may be treated as a suit for "declaration and restoration of possession". The same was opposed by the other side. However, the Court below has allowed the said application by impugned order on the ground that subsequent event permits the plaintiff to amend the suit.

Learned counsel for the petitioners/defendants submits that by way of amendment, nature of suit is changed from injunction to declaration, which is impermissible. He submits that matter was remanded by the appellate Court and no liberty is reserved to the other side to seek amendment. Lastly, it is stated that as per relevant clause 58 of the Limitation Act, limitation is 03 years whereas the present application is preferred after the limitation period.

Shri Arshand Ali learned counsel for the respondent No. 1 supported the order and relied upon certain judgments. He submits that in certain circumstances, even if nature of suit is changed, the amendment can be allowed. He submits that basic purpose to permit amendment is to minimize the litigation, avoid multiplicity of the litigation and to ensure complete justice between the parties. He submits that the plaintiff was dispossessed during pendency of the suit in May, 2011 and therefore in the interest of justice, the Court below has allowed the application, which is not illegal in any manner.

I have heard learned counsel for the parties and perused the record.

The Court below has opined that during pendency of appeal, the defendants have allegedly illegally dispossessed the plaintiff and took possession on the land in question. The said amendment is necessary for lawful adjudication of the matter and therefore, amendment was allowed. It is profitable to consider following judgments on this point:-

(1) Kamta Prasad Vs. Sugriv Prasad and Others,

(2) Pankaja and Another Vs. Yellappa (D) by Lrs. and Others,

(3) Abdul Rehman and Another Vs. Mohd. Ruldu and Others,

The Single Bench of this Court in Kamta Prasad''s case considered the judgment of Apex Court reported in M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., which is as under:-

5.......... Looking to the proposed amendment, it is clear that it is requited for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings.

In Pankaja''s case the Apex Court held as under:-

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 on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. While the defendant-respondents pleaded that under Article 58 of the Limitation Act, the declaration sought for by the appellants in this case ought to have been done within 3 years when the right to sue first accrued. The appellant-plaintiff contended that the same does not fall under the said entry but falls under Article 64 or 65 of the Limitation Act which provides for a limitation of 12 years. Therefore, according to them the prayer for declaration of title was not barred by limitation. Both the Courts below had seriously erred in not considering this question before rejecting the prayer for amendment. It will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief. Amendment allowed.

In Abdul Rehman''s case the Apex Court held as under:-

In view of the stand taken by respondents 1-3 herein/Defendants 1-3 in their written statement and the observation of the High Court in the application filed for injunction, we are of the view that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction, is to protect their interest and not to change the basic nature of the suit as alleged.

In Pankaja Vs. Yellppa this Court held that if the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title.

We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.

(Emphasis Supplied)

In the light of aforesaid judgments of Supreme Court, it is clear that merely because relief is changed, it cannot be held that nature of suit is changed. Basic nature of suit however, cannot be permitted to be changed. In the peculiar facts and circumstances of the case, the alleged dispossession took place during pendency of the suit and therefore, amendment was sought for. In my opinion, to do complete justice between the parties and to decide the real controversy, the amendment was necessary and if it was allowed by the Court below, no jurisdictional error is committed. Interference under Article 227 can be made if there is a jurisdictional error in the order impugned, it suffers from any palpable procedural irregularity or perversity etc. None of these grounds are available to the petitioner. The Court below has taken a plausible view. It will be open for the petitioner to file additional reply/consequential reply and take legal stand against the amendment including the question of limitation. I find no reason to interfere in the impugned order. Petition sans substance and is hereby dismissed. No costs.