Mohammad Amin Dar vs Gajinder Singh and Others

Hasnain Masoodi, J.—The petitioner through the medium of Civil Revision Petition calls a question on order of 1st. Additional Munsiff

Srinagar dated 16-2-2010 in suit tilted Gajinder Singh Maan v. Mohammad Amin Dar (file No. 53/No) whereby the Trial Court has allowed an

application under Order 6, Rule 17 CPC and permitted the respondent to amend the plaint. The facts relevant to the present controversy are as

under:

The respondent filed a suit for grant of permanent injunction decree perpetually restraining the petitioner and his agents from interfering with

respondent's possession over the suit property detailed in the plaint. The respondent also prayed for a similar decree restraining the petitioner from

forcibly and illegally dispossessing the respondent from the suit property. The petitioner on the other hand also filed a suit for grant of permanent

injunction decree restraining the respondent from interfering with the petitioners possession over the same property that formed subject-matter of

the suit instituted by the respondent. The case set up by the petitioner in his suit was that the petitioner had purchased the suit property from duly

authorized attorney of the owner of the property vide Sale Deed executed on 8th April, 2009 and registered on 10th April, 2009. In other words

the petitioner based his claim over the suit property on the Power of Attorney executed by the owner of the suit property in favour of his attorney

inter alia authorizing him to sell/transfer the said property on his behalf and the subsequent Sale Deed executed by the said duly appointed

authorized attorney in favour of the petitioner. The respondent after acquiring knowledge regarding the Power of Attorney and Sale Deed in

question filed an application under Order 6, Rule 17, CPC before the Trial Court for according permission to amend the plaint. The case set up by

the respondents was that the respondent having become aware of the aforementioned two documents where-under a claim to the suit property

was set up by the petitioner, intended to assail the documents as being without right or authority and thus of no legal consequence. The respondent

wanted to mould the relief clause accordingly and in addition to permanent injunction decree seek a declaratory decree declaring the Power of

Attorney dated 13-2-2009, and Sale Deed dated 8th April, 2009 registered on 10th April, 2009 as null and void, non-est in the eye of law and

not binding on the respondent,

The application for grant of permission to amend the plaint was resisted by the petitioner primarily on the grounds that the amendment was likely

to enable the respondent to introduce a new case and set up a new cause of action. It was pleaded that the amendment if allowed was likely to

bring the suit out of pecuniary jurisdiction of the trial Court and the trial Court thus lacked the jurisdiction to allow the proposed amendment. The

trial Court on going through the application under Order 6, Rule 17, CPC, objections filed by the petitioner and after hearing the counsel for the

parties allowed the application and permitted the respondent to amend the plaint as proposed in the application. Learned trial Court was of the

view that the proposed amendment was not to change the nature of the suit or help the respondent to introduce a new case. The application was

allowed subject to payment of Rs. 1000/- as costs. The order dated 16-2-2010 allowing the amendment application is assailed on the grounds

that the respondent by amending the plaint in the manner proposed in the application was in fact allowed to convert an injunction suit simpliciter

into a suit for declaration, a course not permissible under law. The trial Court having regard to the fall-out of the proposed amendment, according

to the petitioner ought to have returned the plaint to the respondent for its presentation before the Court of competent jurisdiction. The amendment

allowed by the trial Court is said to fall outside the ambit of Order 6 to Rule 17 and thus not permissible under law.

Heard and considered.

Order 7, Rule 16 empowers Court to allow either party to alter or amend his pleadings in such manner and on such terms as in the opinion of

the Court may be just. However, a duty is cast on the Court to allow the parties to amend the pleadings as in the opinion of the Court may be

necessary for purpose of determining the real controversy between the parties. The provision thus has two limbs one conferring a power and other

casting a duty on the Court. It is pertinent to point out that the power may be exercised and the duty performed at any stage of the proceedings.

The language of Order 6, Rule 17 itself is indicative of the liberal treatment an effort to amend the pleadings must get. The life purpose of the

amendment provisions is to ensure that all the controversies between the parties are agitated and dealt with in a single proceedings so as to enable

the Court to do justice between the parties without tracing the parties to go for multiple litigation. The multiplicity of litigation is frowned upon and

discouraged by the imperatives of public policy in the circumstances, generally speaking an amendment ought to be allowed for the purpose of

determining the real controversy between the parties in a proceeding. The amendment of course, cannot be allowed if it helps a party to set up a

new case. To illustrate, a party to a civil proceedings cannot be permitted to withdraw an admission though an effort to explain admission by

amending the pleadings is permitted. Similarly an amendment may not be allowed if it makes a radical and fundamental change in Constitution,

character and chemistry of a pleading. In such situation the proceedings may be high-jacked and the Court prevented from doing justice to the

parties, or determining the controversy between the parties. The proposed object of amendment provision has been emphasized by Supreme

Court in Balkrishan Vs. Satyaprakash and Others, as under:

The purpose and object of Order 6, Rule 17, CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as

may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis

of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all

circumstances. But it is equally true that the Courts while deciding such prayers should not adopt hyper-technical approach. Liberal approach

should be the general rule particularly in cases where the other-side can be compensated with the costs. Technicalities of law should not be

permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for

multiplicity of litigation.

In Ragu Thilak D. John Vs. S. Rayappan and Others, , rightly relied upon by learned Counsel for the respondent in a permanent injunction suit

for restraining defendant from demolishing compound wall of the suit property, the plaintiff sought amendment to add relief of recovery of damages

on the ground that the defendant during pendency of the suit demolished the compound wall. The application for incorporating proposed

amendment in plaint was disallowed by the Trial Court. The High Court dismissed the revision petition against the order of trial Court mainly on the

ground that amendment if allowed, would result in introducing a new case and cause of action. It was further held by High Court that the proposed

amendment would change nature of the suit and also that the amendment sought was barred by Limitation. The Supreme Court while allowing the

appeal against the order of High Court held:

The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by

time is arguable in the circumstances of the case, as is evident from the perusal of averments made in the paras 8(a) to 8(f) of the plaint which are

sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made

a subject-matter of the issue after allowing the amendment prayed for.

In a suit for permanent injunction restraining the defendant from alienation of the suit property amendment to the plaint was allowed to ask for

specific performance of the contract. The amendment was held by the trial Court not to change the original controversy between the parties as the

nature of the suit was to remain the same. In Raj Kumar v. Dipender Kaur Sethi, AIR SC 2005 1592, it was realized by plaintiff that the plaintiff

had not made an averment in the plaint that he was ready and willing to perform his part of contract. The plaintiff thus made a second amendment

application, to incorporate the above plea which was allowed by the trial Court. The High Court set aside the order and the matter went to the

Supreme Court, the Supreme Court in the facts and circumstances of the case restored the order of the trial Court granting leave to amend the

plaint and set aside the order of the High Court.

In the present case the amendment allowed by the Trial Court does not change the nature of the suit or help the plaintiff to set up a new case or

introduce a new cause of action. The respondent's case before the trial Court was that the respondent was in possession of the suit property. The

respondent based his claim of ownership on the facts set out in the plaint. The respondent complained that the petitioner though having no right or

interest over the suit property, was keen to interfere in respondents possession over the suit property and dispossess the respondent from the said

property. The respondent in the said back ground asked for a permanent injunction decree restraining the petitioner from interfering with the

respondents possession over the suit property or forcibly and unlawfully dispossessing the respondent from the suit property the case that the

petitioner had no right or interest in the suit property, was implicit in the suit commenced by the respondent. Once the petitioner without disclosing

his defence in the suit instituted by the respondent filed a separate suit relying on Power of Attorney and Sale Deed in question, it was appropriate

for the respondent to amend the pleadings and question validity of the two documents on the grounds pleaded by the respondent. The controversy

in effect remains same. The amendment introduced in the plaint is not alien or foreign to the real controversy between the parties. In case the

respondent is not allowed to amend the plaint and question the validity of the two documents in the pending suit, the respondent's right to impugned

the documents shall not get extinguished, but the respondent shall be constrained to file a separate suit asking for a declaratory decree, declaring

the power of attorney and Sale Deed mentioned above as non est, null and void and inoperative as against the respondent. This shall lead to

multiplicity of litigation-recourse against the public policy and required to be discouraged. The argument that the trial Court by allowing the

amendment has pushed out the suit from its pecuniary jurisdiction is debatable and to be dealt with at appropriate stage. It is for the trial court to

see whether a suit for grant of declaratory decree declaring a document null and void, inoperative and non est is to be valued as per the

consideration amount reflected in Sale Deed.

In the circumstances the order dated 16-2-2010, does not call for the interference. The revision petition is accordingly dismissed. Having regard

to the controversy involved in the two suits the Trial Court may consider consolidating the two suits, so that both the suits because of identical

controversies are taken up and tried together. Record may be send down, parties are directed to appear before the trial Court on 20-5-2010.