Puran Chand vs Harjinder Singh and Others

S.S. Sodhi, J.—This Revision Petition is directed against the order of the trial Court declining the Plaintiff''s application for amendment of the plaint.

The case as set up by the Plaintiff is founded upon his averment that on December 16 1980 there was an agreement, whereby Defendant No. 1 agreed to sell to him the land in suit. The Plaintiff filed a suit seeking to restrain Defendant No. 1 from transferring the land in suit otherwise than in accordance with this agreement.

On April 24, 1981, during the pendency of the suit referred to above, Defendants Nos. 2 and 3 filed a suit for specific performance against Defendant No. 1 relating to the land in suit. The Plaintiff was not made a party to the suit nor is it alleged that he had any notice or knowledge of this suit. On May 23, 1981, a decree for specific performance was granted to Defendants 2 and 3 against Defendant No. 1 and in pursuance thereof the land in suit came to be sold by Defendant No. 1 to Defendants 2 and 3 on June 1, 1981.

On. August 19, 1981 the Plaintiff withdrew the suit filed by him with permission to file a fresh suit. It was thereafter that the present suit came to be filed by him on August 20, 1981. In this suit the Plaintiff sought a decree for declaration that the decree obtained by Defendants 2 and 3 against Defendant No. 1 was not binding upon him and he also sought a mandatory injunction against Defendant No. 1 seeking thereby transfer of the land in suit to him in terms of the agreement of December 16 1980 and also an injunction to restrain the Defendants from dispossessing him from the land in suit. An application under Order 39 Rules 1 and 2, CPC was also filed by the Plaintiff to restrain the Defendants from interfering with his possession This application was dismissed by the trial Court on May 18, 1982 and the appeal filed against this order was also later dismissed by the Lower Appellate Court.

In the written statement filed by the Defendants on March 15, 1982, a number of preliminary objections were raised including one relating to the maintainability of the suit on the plea that the proper remedy for the Plaintiff was to seek a decree for specific performance.

It was after the framing of issues that the Plaintiff filed an application on April 11, 1983 seeking an amendment of the plaint whereby he sought the relief of specific performance of the agreement of December 16, 1980 as also a decree for possession of the land in suit and in the alternative a decree for the refund of the earnest money said to have been paid by him to Defendant No. 1.

The trial Court declined the application for amendment mainly on the ground that if allowed, it would change the very nature of the suit and would thus cause prejudice to the Defendants. Delay in seeking the amendment was another factor taken into account in this behalf.

In the matter of amendment of pleadings, the provisions of Order 6 Rule 17, Code of Civil Procedure, confer a wide discretion upon the court and it is now well-settled, as a general rule, that this discretion deserves to be liberally exercised to advance substantial justice, particularly, where the amendment sought facilitates the determination of the real controversy between the parties. In other words, the "real controversy test" is the yard-stick governing the courts'' power and discretion in the matter of amendment of pleadings. Delay is, of course, a factor to betaken into account, but it cannot by itself defeat the prayer for amendment if it causes only such injustice or loss to the opposite party as can be compensated in costs. It would be apt to recall here the oft repeated observations of Bowen, L.J. in Cropper v. Smith (1884) 26 Ch. D. 700:-

It is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which if not fraudulent or intended to overreach, the Court ought not to correct If it can be done without injustice to the other party. Court do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. It seems to me that at soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his party to have it corrected, if it can be done without injustice as anything else in the case is a matter of right.

The cause of action in the present case, in essence and substance, was founded upon the agreement of December If, 1980 for the sale of the land in suit. In the plaint, as also by the amendment thereof, as now sought, the relief claimed was essentially that of carrying out the terms of this agreement Mr. v. P. Sharda, counsel for the Plaintiff, thus rightly contended that moulding of the relief was what was in substance involved in the amendment claimed.

Mr. M.L. Sarin, on the other hand, sought to contend that by amendment, the Plaintiff was in fact seeking to introduce new facts as the basis of his claim in the suit and this cannot but cause prejudice to the Defendants. This objection clearly cannot be sustained. The facts pleaded being only those necessary to seek the relief of specific performance, and this provides no occasion for raising any inference of prejudice against the Defendants.

There has undoubtedly been delay on the part of the Plaintiff in seeking the amendment of the plaint, but this delay cannot disentitle the Plaintiff to the relief sought particularly when no vested rights of the Defendants would be infringed thereby. Such delay is, of course, relevant in the matter of assessing the costs to be awarded to the Defendants in this case.

In the totality of the circumstances of the case, there is no escape from the conclusion that there was a clear error committed by the trial Court in the exercise of its jurisdiction which cannot but invite interference in revision and consequently, the impugned order is hereby set aside and the Plaintiff is allowed amend his plaint as prayer for, but subject to payment of Rs. 1,000/- as costs.

Parties are directed to appear before the trial Court on January 30, 1984 for further proceedings according to law. Petition allowed.