Raghu Nath and Others vs Surja Devi and Others

Sudhir Agarwal, J.—Heard Sri Alok Kumar Yadav, learned counsel for the revisionists. None appeared on behalf of respondents though this case has been called in revised. This revision under Section 115 C.P.C. has been preferred against order dated 1.9.2001 passed by IIIrd Additional Civil Judge, (Senior Division), Varanasi, in Original Suit No. 510 of 1994 allowing amendment, sought by plaintiff, in the plaint on a cost of Rs. 100/-.

Sri A.K. Yadav, learned counsel for revisionists contended that suit was initially instituted only for permanent injunction against defendants from interfering in functioning of brick-kiln by plaintiffs. An ad interim injunction was granted in favour of plaintiffs, pursuant whereto, he was running brick-kiln. The period of lease, for which brick kiln land was allotted to the plaintiffs, having expired, they filed an amendment application, in which earlier prayer of injunction was sought to be deleted and a totally new relief was sought to be inserted as ''Ka'', ''Kha'' and ''Ga'' in para 15 of the plaint i.e. for damages and compensation.

It is said that relief, sought by means of amendment application and insertion of certain paragraphs, in reference to relief, was totally a new cause of action, different from earlier one and that could not have been allowed, particularly when plaintiff''s said that earlier relief, sought by him, should be deleted and the plaint should be allowed to be amended with totally new prayers.

I find substance in the submission. The earlier prayer, made in para 15Ka of the plaint, read as under:

English Translation by the Court

"A. That a decree may please be rendered in the nature of permanent injunction restraining the defendants from making any sort of interference or putting obstructions in such activities of the plaintiff at the property detailed below as running a brick kiln; carrying out business thereof; moulding brick cakes after collecting earth from seven feet deep pit and thereafter baking and selling them, and forbidding them not to assert any right by way of opposition or objection; and also in the nature of a direction for payment of compensation to the tune of Rs. 6,50,000/-." 5. Now by means of amendment application dated 23.10.1999, para 15Ka has been sought to be deleted and replaced by para 15 Ka, Kha and Ga, which read as under:

English Translation by Court.

"15A. A decree may please be rendered in favour of the plaintiff and against the defendants for a compensation to the tune of Rs. 6,50,000/- to be realised from the property and personal belongings of the defendants.

15B. During pendency of the suit, a decree for recovery of compensation of one lakh rupees per annum may please be issued against the defendants; on which requisite tee shall be paid.

15C. That the plaintiff may please be awarded with interest on the aforesaid entire amount at the rate of 2 percent per mensem to be paid by the defendants until the payment of the aforesaid amount; on which requisite fee shall be paid."

It is well-settled law that an amendment ought to have been allowed if it does not change the nature of the suit nor intends to add a claim which is barred by limitation nor takes away the claim of other parry nor amounts to a fresh cause of action nor otherwise prejudice the other side. Instead of adding several authorities on this aspect, I intend to refer to the decision of Apex Court in North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., , where the Court held:

"Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well-settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar, " 7. This has been followed in Peethani Suryanarayana and Another Vs. Repaka Venkata Ramana Kishore and Others, . To the same effect is the view taken in Sushil Kumar Jain Vs. Manoj Kumar and Another, .

How and in what circumstances an amendment should be allowed and what are the principles which should be considered by the Court while considering an amendment application, have been crystallized by Apex Court in para 67 of the judgment in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , which reads as under:

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And

(6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. (emphasis added)

This Court has also followed the above exposition of law by referring to Revajeetu Builders (supra) in Sri Krishan Mittal v. Upper District Judge C.N. 10 Bijnor and others (Writ A No. 46709 of 2012) decided on 13.9.2012.

From the above, the law discernable is that in the matter of seeking amendment in the pleadings, Courts must have taken a pragmatic view as to whether amendment would delay the proceedings, will change the nature of the proceedings, will have the effect of giving new cause of action and so on but otherwise where the plaintiff himself has sought amendment in the plaint, I find no reason to discard the amendment.

In the present case, it is apparent that for totally new and different cause of action, now, plaintiff''s intend to prosecute aforesaid suit. This could have been done, not by way of amendment but by filing a fresh suit. The Court below has clearly erred in law in allowing the aforesaid kind of relief. In the result, the revision is allowed. The impugned order dated 1.9.2001 passed by IIIrd Additional Civil Judge, (Senior Division), Varanasi, is quashed.