Piara Singh vs Santokh Singh and Another

V.S. Aggarwal, J.—The present revision petition is directed against the order passed by the learned Additional Civil Judge (Sr. Division), Ajnala dated 5.4.1997. By virtue of the impugned order the learned trial Court had dismissed the application filed by the petitioner-plaintiff seeking amendment of the plaint.

The relev at facts are that petitioner-plaintiff Piara Singh had filed a suit for permanent injunction to restrain the respondents from interfering in his peaceful possession over the plot in question situated in village Chak Sikandar, Tehsil Ajnala. During the pendency of the suit the petitioner submitted an application that on 25.8.1993, an order has been passed directing the parties to maintain status quo. Respondent No. 1 was alleged to be working in the Police Department. On 31.8.1993 he detained the petitioner in police custody and obtained a writing from him that he is not in possession of the suit property. Thereupon, he took forcible possession of the suit property and raised construction of one room. He even installed a hand-pump. Keeping in view the said facts, the petitioner wanted to amend the plaint and add the relief by seeking possession of the suit property.

Needless to say that petition was contested. It was asserted that respondent No. 1 has been in possession of the property for the past 30 years. He had set up the room 8 years ago. By virtue of the proposed amendment, the nature of the suit cannot be changed.

The learned trial Court held that if the amendment is allowed, it will change the nature of the suit and consequently the amendment application was dismissed.

In this regard reference can be made to Order VI, Rule 17 Code of Civil Procedure. It reads:-

"17. Amendment of pleadings.-- 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."

Perusal of Order VI, Rule 17 reproduced above leaves no doubt that all amendments necessary to determine the question in controversy have to be allowed. This is so because the duty of the court is to determine the rights of the parties and not to punish them for their mistakes, if any. In this regard they can even take note of the subsequent events that might take place during the pendency of the suit. Reference, in this regard may be made to some of the precedents that such an amendment which does not take away the vested right of the party or causes a prejudice which cannot be compensated in costs can be allowed. In the case of Smt. Batni and Others Vs. Shri Tej Singh, also a suit was filed for mandatory injunction and thereafter amendment was prayed with alternative relief for possession. The Court held that such an amendment can be allowed and held:-

"The contention of the learned counsel is not sound. The suit of the respondent was based on the allegation that he had purchased the property, at an auction sale and that the petitioners were licensees. The amendment, sought, was to the effect that even if the petitioners were held not to be licensee, they were trespassers and the respondent was entitled to gel possession as against them. The amendment did not substitute one cause of action for another distinct cause of action. It did not change the subject-matter of the suit or introduce a totally different case. It is true that the prayer for possession was not consistent with the allegation that the respondent was in possession of the property in suit. But the prayer for possession was made in the alternative. There is nothing in law to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative."

Similar, view prevailed with the Karnataka High Court in the case Dundappa Laxmappa and Another Vs. Mallappa Bhimappa Bolanatti, . Herein a suit was filed for permanent injunction to restrain the defendants from interfering in the right of the plaintiff in his possession. Temporary injunction had been refused. The plaintiff prayed for amendment of the plaint converting the injunction suit into partition suit. The Court held that such an amendment can be allowed and observed:-

"His averments in the suit for injunction were that he was in joint possession of the suit land with the defendants who are members of his family, who without any justification have been interfering with his said right. He, therefore, wanted an injunction to restrain the defendants from interfering with his right to be in possession. But the Court refused to grant an injunction on the ground that he could not ask for it against his co-owner. He then prayed for his separate share in all the family properties. It seems to me that he cannot be prevented from doing so. It is well recognised that a suit for injunction could be converted into a suit for possession, if the plaintiff apprehends about his relief of injunction. The case on hand cannot be said to be different on principle. The plaintiff herein really asks for possession of his separate share by claiming partition. The defendants have not made out that their rights have been taken away by allowing the amendment or any injustice has been done to them. In these circumstances, I cannot but hold that the discretion exercised by the trial Court in allowing the amendment was perfectly justified."

The Orissa High Court in the case Abdul Hannan Khan and Others Vs. Chandra Sekhar Patra and Others, , was concerned with almost a similar situation. A suit was filed for permanent injunction. The defendant pleaded that he is in possession of the property. It was held that amendment could be allowed. The pertinent findings arrived at in paragraph 3 reads :-

"The plaintiffs, however, should not be penalised for their past inactions when the trial Court has considered the applications on merit. The only ground on which the applications have been rejected is that the suit was for permanent injunction and now it is being converted to one for title and possession. The trial Court ought to have considered that on the question of the written statement the title was to be gone into incidentally. Equally, the question of possession was required to be gone into by the Court. The subject matter of dispute does not change. No new parties are to be added. There is no question of any right accrued by the defendants being defeated by the amendment being allowed. The same broad issues as involved earlier to the amendment will be answered. In such circumstances, the amendment ought not to have been refused in the interest of proper adjudication."

Similarly, the Bombay High Court in the case Kisan Amrut Pawar v. Sarangdhar Baban Dhore and Anr., AIR 1983 Bombay 442, dealt with a petition where a suit was filed for declaration and permanent injunction. Thereupon the amendment was claimed and the plaintiff wanted to claim the relief of possession. It was held that such an amendment should be allowed. The findings returned were :-

"It is apparent that the order of the trial Court is clearly wrong. The basic structure of the plaint is not at all changed. What is changed is the consequential relief. Instead of asking for injunction, the plaintiff is now seeking to ask the relief of possession. There is no change whatsoever in the plaint so far as the relief of declaration is concerned and the consequential relief is based mainly on the basis of declaration of ownership. Hence, it is mainly a suit for declaration of ownership and injunction or possession are consequential reliefs. If a change is made in the consequential relief, it cannot be said that the nature of the suit is changed. The nature is not at all changed and, therefore, the order of the trial court deserves to be quashed and it is accordingly quashed."

Two decisions of this court can also be noted. In the case of Dewan Chand Vs. Kalyan Dass and Others, , the suit was filed for permanent injunction. During pendency of the suit, the plaintiff was dispossessed. It was held that amendment could be allowed to convert the same into suit for possession. In paragraph 6 the findings recorded were :-

"As regards the question that the plaintiff is entitled to the relief of possession of the shop in dispute in case it is found that he was illegally dispossessed during the pendency of the suit, it is not disputed, that for that purpose no amendment as such was needed in the plaint. The Court is entitled to grant such a relief as and when it is found that the plaintiff was in possession of the suit land as a tenant but was dispossessed illegally during the pendency of the suit by the defendant."

Same was the view in the case of Tarlok Singh v. Vijay Kumar Sabharwal 1990(1) RLR 10.

The question in the present case is identical. The plaintiff has filed as mentioned above a suit for permanent injunction to restrain the respondents from dispossessing him from the property in question. During the pendency of the suit, the plaintiff-petitioner contended that he has been dispossessed. He now wanted the relief of possession. If that is so, the subsequent event could not be ignored. The amendment was necessary to determine the question in controversy. In such like cases, even if there is slight change in the nature of the suit, keeping in view the events that take place, it is appropriate that amendment should be allowed. It is in the interest of justice and it is well known that laws of procedure are hand-maids to . the Court to administer justice. The trial Court in these circumstances, therefore, " was not right in rejecting the application.

For these reasons, the revision petition is allowed and the impugned order is set aside. Instead the amendment is allowed on payment of Rs. 200/- as costs.