Nand Lal and Others vs Municipal Corporation and Others

Gurmeet Singh Sandhawalia, J.

Challenge in the present revision petition is to the order dated 27.10.2014 (Annexure P1), whereby the application for amendment of the plaint has been dismissed by the Addl. Civil Judge (Sr. Divn.), Fatehabad, on the ground that since the petitioner-plaintiffs were restricting their claim, the Court could come to the conclusion that they were entitled for a lessor claim than that of the original and therefore, it would be wastage of time and resources to welcome an amendment of the plaint. The second reasoning which weighed was that there was laches on the part of the plaintiffs since they had taken various opportunities for leading evidence but had not done so and that there was no due diligence on their part. Counsel for the petitioner submits that the power of amendment is wide and there should be due diligence and that no change in the nature of the relief has been sought and it is stated that the relief, if granted, would be conducive for the Court to adjudicate upon the matter and since the plaintiff is restricting his relief from 14 kanals 6 marlas to 2 kanals 2 marlas. It is submitted that it is on account of the stand taken by the defendants in the appellate proceedings that the amendment is necessitated.

Counsel for the respondents, on the other hand, has placed reliance upon the judgment of this Court in Paal Kaur Vs. M/s Dhamotia and Company Property Dealers and others, to submit that the issues had been framed on 27.11.2012 and the application was filed on 29.09.2014 and in such circumstances, once the trial had commenced, the proposed amendment could not be allowed in view of the proviso of Order 6 Rule 17 CPC.

After hearing counsel for the parties, this Court is of the opinion that no prejudice will be caused if the amendment is allowed. The initial suit is for prohibitory and mandatory injunction regarding the land situated in khasra No. 544/12 (14-6), situated in Basti Bhiwan, Tehsil & District Fatehabad. The respondents, in their written statement, have referred to the notification dated 22.04.1955 under the Land Acquisition Act, 1894 and that compensation was paid to the landowners in the earlier litigation filed.

It is an admitted fact that injunction was granted initially to the petitioner-plaintiffs on 25.10.2012 and thereafter, in appeal, the said injunction was vacated on 07.08.2014 and the applications under Order 6 Rule 17 CPC was filed immediately a month later, i.e., on 29.09.2014. Reference was also made to the fact that the plaintiff-Narain Devi who had filed a Civil Suit previously, had expired and she being of an advanced age, was not aware of the earlier suit filed by her. In such circumstances, this Court is of the opinion that there has been sufficient due diligence on the part of the petitioner-plaintiffs.

The Apex Court has specifically held in Surender Kumar Sharma Vs. Makhan Singh, that amendment can be allowed subject to payment of costs and the other side can be compensated for the purposes of the delay as the Court has to bear in mind that it has to do full and complete justice and decide the real controversy. In the present case, as noticed above, the claim has been restricted and therefore, it would be easier for the Court to deal with the controversy which is lessor in nature. In Abdul Rehman and Another Vs. Mohd. Ruldu and Others, , the Apex Court has held that the power of amendment is wide and that due diligence should be mere and amendment can be allowed in spite of the fact of proviso of Order 6 Rule 17 CPC. Relevant observations read as under:

"8. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others Vs. Gattu Mahesh and Others, and Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Others, . Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."

Keeping in view the above principles laid down, the present revision petition is allowed, the order dated 27.10.2014 (Annexure P1) is set aside and the amendment, as prayed for, in the application filed under Order 6 Rule 17 CPC, is allowed, in view of the fact that the petitioners have restricted their claim from 14 kanals 6 marlas to 2 kanals 2 marlas, subject to payment of Rs. 10,000/- as costs, to be deposited with the District Legal Services Authority, Fatehabad.