Kunwar Narendra Singh Rajwat vs Shri Amarsarwati Torawati Bhomiya Sangh Social and Educational Trust

Shiv Kumar Sharma, J.—The defendant petitioner seeks to quash the order dated Feb. 10, 1998 of the learned Additional Civil Judge (Junior Division) No. 3 Jaipur City Jaipur whereby the application under Order 6 Rule 17 CPC of the plaintiff respondent was allowed.

Brief resume of the facts is that in the application under Order 6 Rule 17 CPC the plaintiff respondent prayed for deletion of the word ''Trust'' and substitution of word ''Registered Society'' and further to delete word ''President'' as used for Col. Magh Singh. The defendant petitioner submitted reply to the application with the averments that the plaintiffs suit was not properly framed and the amendment if allowed would change the nature of the suit having substitution of a new plaintiff. It was contended that the defect in the plaint was not curable by way of amendment as there being no valid plaint at its inception.

The learned court below allowed the application on the ground that in allowing the amendment the cause of action and the subject matter of the civil suit shall not be changed and the defendant would not be affected as he has not filed written statement.

I have pondered over the rival submission and carefully weighed the material on record.

Mr. R.K. Agarwal, Learned Counsel appearing for the defendant petitioner contended that the plaintiff respondent could not be allowed to change the face of the suit as the suit originally instituted was a nullity for want of legal entity of the plaintiff respondent. The amendment sought for was not bonafides. The suit of the plaintiff respondent since inception was not maintainable as the plaintiff being not a legal entity. The plaintiff failed to produce any trust deed nor could he name the trustee. Hence there could not be any amendment of the description of such a plaintiff, who did not exist in the eye of law Reliance was placed on M.B. Sirkar and Sons Vs. Powell and Co., National Building Material Supply Vs. Jai Jai Ram Manohar Lal, and Rajendra Nath Tikku Vs. The Royal Calcutta Turf Club,

Mr. B.S. Shekhawat, Learned Counsel appearing for the plaintiff respondent on the other hand supported the impugned order and contended that the original suit was not a nullity for want of legal entity of the plaintiff. The title of the plaint was not properly described originally and amendment application was filed to correct the defect in the frame of the plaint.

In order to appreciate the rival submissions I have closely scrutinised the record.

In A.K. Gupta and Sons Vs. Damodar Valley Corporation, their Lordships of the Supreme Court in para 34, indicated thus:

These observations, again made if clear that amendment was allowed with respect to a claim which at the time when it was made would have been time barred because that claim could be spelt out of the original plaint which was held to be defectively framed. A defect in the frame of the plaint was not considered sufficient to disallow amendment and to dismiss the suit. The amendment of the plaint was necessitated due to clumsy drafting.

In my opinion the amendment of the plaint can be allowed to make the plaint complete in particulars, which would help in determining the real dispute between the parties as raised by the plaint itself as originally presented. From the imperative character of the last sentence of Rule 17 of Order 6 CPC it seems to me clear that at any stage of the proceedings all amendments ought to be allowed which satisfy the two conditions :

(i) of not working injustice to the other side, and

(ii) of being necessary for the purpose of determining the real questions in controversy between the parties.

In Cooper v. Smith (1884 (26) Ch.D. 700 (710-711) it was held that the object of courts and rules of the procedure is to decide the rights of the parties and not to punish them for their mistakes.

As already stated the defendant has not filed written statement as yet. The order allowing amendment would not work injustice to him. The authorities cited by the Learned Counsel for the defendant petitioner are distinguishable in the facts and circumstances of the case.

The suit was filed originally by Shri Amarsarwati Torawati Bhomiya Sangh Samajik avom Sekashnik Tnisl Station Road Jaipur through President Col. Magh Singh.'' This description has been changed as "Shri Amarsarwati Torawali Bhomiya through Col. Magh Singh Station Road Jaipur. In place of the words registered trust" words "registered society'' were substituted and date of registration has been changed. It is not possible to agree with the Learned Counsel appearing for the defendant petitioner that the petitioner would suffer irreparable loss if the order is allowed to stand.

The revision petition stands dismissed. No costs. The record of the case be sent forth with.