Mohar Dass vs Surjoo

D.B. Lal, Acting C.J.

This rule in revision has been obtained by the Petitioner who is Defendant in a suit filed by Smt. Surjoo against him for recovery of possession over 7 kanals 11 marla of land comprising Khasra No. 2084, situate at Tika and Mauza Chanaur, Tehsil Dehra. The Plaintiff''s case in the plaint is, that she is owner of the said Khasra number and that the Defendant was a non-occupancy tenant and was paying rent in kind, which was to the extent of 1/3rd share in the crop raised by the Defendant. Subsequently, the Defendant denied her title and asserted ownership in his favour and thereby, according to the Plaintiff, his tenancy rights, are forfeited. The Defendant also got wrong entries effected in the revenue record in his favour and the Plaintiff had to file some proceedings for correction of such entries. According to the Plaintiff, in the year 1967, the entry regarding rent was altered in the revenue papers. It was mentioned that the payment of rent was "Mushquq" that is, doubtful. On these allegations, the Plaintiff sought for the relief of possession after dispossession of the Defendant.

The Defendant categorically stated in his written statement, that he is in possession over the disputed land not as tenant but as owner from the last 25 years. According to him, the Plaintiff being his aunt, had given the disputed land in lieu of services rendered by him to the Plaintiff. He also set up an oral stipulation whereby he was made full owner of the disputed land. In this manner, the Defendant contested that he was full owner of the land from 25 years and that no question of denial of the tenancy rights should arise. According to him, the Plaintiff cannot get the relief because no question of forfeiture of tenancy rights at all arises in the suit. The suit was filed on 18th May, 1968 and the written statement was put in on 22nd August, 1968. Thereafter, the issues were struck and several dates were fixed for recording evidence. After a lapse of more than 2 years, on 29th September, 1970, the Defendant moved an amendment application in respect of the written statement. In his amendment application, the Defendant contended that he obtained copies of the revenue entries and then he could discover his mistake and he very much asserted that his title'' was no better than that of a tenant. Accordingly, he wanted to get his written statement amendment inasmuch as he wanted to incorporate that he is tenant of the Plaintiff although he does not pay any rent from so many years. He has also pleaded by amendment that he has derived an adverse title for non-payment of rent although he remains tenant of the Plaintiff. He has also now taken up the plea that the Plaintiff is not entitled to claim any relief on the ground of forfeiture, obviously because the Defendant is not denying the title of the Plaintiff. He has also taken up the plea of jurisdiction, although such plea existed before also in his written statement.

The Plaintiff had strenuously opposed this amendment application before the learned trial Judge. According to him, an absolutely new case for defence is being set up by the Defendant. This would cause great injustice to the Plaintiff and that there is also mala fide. According to the Plaintiff, the Defendant was already aware of the revenue entries and it would be a mistake to suppose that the truth dawned upon him at this stage when he was supposed to have obtained copies of the revenue entries. Rather the Defendant had also contested the application which the Plaintiff had filed for correction of revenue entries. At that stage also, the Defendant had taken the position that he is the owner of the disputed land. It was submitted on behalf of the Plaintiff that the amendment application was liable to be rejected.

The learned Senior Sub-Judge, before whom this suit is pending, rejected the amendment application and he has held that the Defendant had set up an absolutely new defence. Apart from this, he also held that mala fide on the part of the Defendant is proved because he has taken this step after such a lapse of time.

The Defendant has come up in revision against the order of the learned Senior Sub-Judge.

It is abundantly clear that the Defendant could only succeed in getting his written statement amended provided his case fell within the ambit of Order 6, Rule 17 of the Civil P. Code. It may be useful to give out that provision at this stage:

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

It is manifest, that whatever amendment the Defendant is seeking should be necessary for the purpose of determining the real questions in controversy between the parties Therefore, the "real controversy" test is the cardinal test for refusing or allowing the amendment. It is, therefore, necessary to find out as to what is the real controversy between the parties. In order to ascertain the questions in controversy between the parties within the meaning of Order 6, Rule 17, only such question? are to be considered which had arisen between the parties at the time when they joined issues that is, when the Defendant had put in his written statement. Obviously, they do not include any question which the parties neither wish nor intend to dispute till they at a much later stage in the proceedings wish to raise because they have changed their minds or because something has happened after the filing of the written statement which makes it profitable or necessary for them to put forward, (see Beni Parshad Bhargava v. Narayan Glass Works AIR 1949 Ajm 19 ). If I lookup the state of pleadings as it existed before the amendment was aksed for, the questions of controversy related to the tenancy rights of the Defendant which he had denied and had set up ownership title in its place. As a consequence, the Plaintiff had pleaded forfeiture of tenancy rights. The Defendant had categorically stated that the question of forfeiture would not be pertinent because he was never a tenant of the Plaintiff. This being the position, it is to be ascertained as to whether the present amendments sought for by the Defendant were at all necesasary to determine these questions of controversy that had arisen between the parties. In my opinion, such amendments were not at all necessary. Rather, an attempt has been made by the Defendant to set up a totally different, new and inconsistent case and the fundamental character of his defence has also changed. In my opinion, this would hardly be a case of determining the real questions in controversy between the parties and the amendment was rightly refused by the learned trial Judge. In Chander Shekhar v. Smt. Bali (R.S.A. No. 130 of 1968), I had an occasion to consider a case which related to the amendment of the written statement. It was considered, that an amendment of written statement would not be permissible if it would prejudice the right of the opposite parties on the date of such amendments. In other words, if a case of prejudice or injustice is made out against the amendment, the same would not be allowed. This is apart from the question of diligence which the party has to exercise in these matters. It is abundantly clear that the Defendant has changed his defence and wants to substitute a new defence in his favour. In A.K. Gupta and Sons Vs. Damodar Valley Corporation, , the following observation was made, which may be pertinent in this case:

In the matter of allowing amendment of pleading the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the satutory period of limitation.

It is abundantly clear that the amendment sought do constitute addition of a new cause of action and raise a totally different case. The amendments do not amount to a different or additional approach to the same facts and, therefore, following the ratio decidendi of this decision of the Hon''ble Supreme Court, such an amendment is not permissible under Order 6, Rule 17 of the Code of CPC as clear injustice is likely to be caused to the Plaintiff inasmuch as, the plea of forfeiture would no longer be available to him. Apart from this, the question of jurisdiction would also assume a different shape than it is supposed to have had while the suit was filed. The Defendant had taken the plea of jurisdiction all the same, knowing that he had denied the status of tenancy and, therefore, the suit was ex facie cognizable in a civil Court. If the amendment is permitted, the Defendant would then admit his tenancy and also the relationship of his being tenant of the Plaintiff. Therefore, the learned Counsel for the Plaintiff-Respondent points out, it may be pleaded that the civil court would not be able to grant the relief of possession as it would lead to dispossession of the tenant. In this manner, the Plaintiff is likely to be prejudiced if the amendment is permitted.

Apart from this, the very relief of amendment was sought after a lapse of more than 2 years. Besides this, in the proceedings for correction of revenue entries, the Defendant opposed the Plaintiff and asserted his ownership title in respect of this land. In this manner, it was asserted by the learned Counsel, that the Defendant is harassing the Plaintiff and is seeking this amendment at a late stage, so that the trial is protracted.

The learned Counsel for the Petitioner referred to Messrs Watkins Mayor and Co. v. Registrar of Trade Marks (1952 44 P.L.R 176), and asserted that in that case the amendment was considered permissible howsoever negligent or careless the parties seeking the amendment may be, provided no injustice is caused to the other side. As I have stated above, a definite injustice is likely to be caused to the Plaintiff and this case would not very much help the Defendant. In Shaik Masthan Sahib v. Palayani Balarami Reddi (A.I.R. 1953 Mad 958), the amendment sought, for written statement directly negatived admission contained in the original statement. As such, the amendment was refused. In Damodara Sastry v. Nilgiri Sanjiviah (A.I.R. 1955 Mys 141 ), the Defendant applied for amendment of a written statement for having a new plea inconsistent with the original plea. It was held that the proposed amendment if allowed would change the nature of the defence and would not in any way help to solve the real issue between the parties. Moreover, the conduct of the Defendant in applying for such amendment was malafide with intent to harass the Plaintiff and to protract the proceedings. Hence the amendment was not allowed. In Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, , their Lordships made instructive observation to the effect that there was a stronger reason to disallow the amendment of the plaint because the Plaintiffs were making out a case of fraud for which there was not a slightest basis in the plaint as it originally stood. In the case before me, similarly, the Defendant is making out a case which is based on facts for which there was not even a slightest indication in his original written statement. In such a situation, the amendment is not permissible. The learned Counsel for the Petitioner relied on Parbati Dei Vs. Alupati Dukhishyam Patra and Others, . In this case the amendment of written statement was allowed although relief of amendment was sought after a lapse of time and the delay caused in making the application for amendment was considered ineffective for permitting the amendment. But, from the facts of this case, it is clear that the amendment was considered necessary to determine the real controversy between the parties. Therefore, it was observed that the amendment could not be defeated by lapse of time and was considered necessary and the prayer was granted.

The learned Counsel for the Petitioner also urged that the evidence in the case has not yet started and that the amendments sought for are in consonance with the revenue entries. I do not think these are sufficient considerations for permitting the amendments to be made in the written statement. The amendments now sought for cannot be stated to be entirely in consonance with the revenue entries. The jurisdiction of this Court as to the revision is governed by Section 115 of the Civil P.C. It is apparent there is no error regarding jurisdiction. It cannot be stated that any material illegality has been committed by the learned trial Judge.

In the circumstances, I am of the opinion that no interference is possible in the order of the trial Judge and the revision application is dismissed. I make no orders as to costs.