Rajendra Shanker Tripathi vs Ajay Kumar Gupta

Rajiv Sharma, J.—Heard learned Counsel for the opposite parties.

Learned Counsel for the Petitioner submits that the Petitioner filed a regular suit No. 144 of 1998 for permanent injunction along with an application for temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. On 9.8.1999, Advocate Commissioner so appointed by the Trial Court submitted his report and map, stating therein that new construction were being made over the land in suit. The said report has been confirmed subject to evidence. On 19.5.2009, Plaintiff-Petitioner''s evidence was closed and on 9.7.2009, defence evidence was started but could not be completed due to adjournment sought by the Defendants. Thereafter, on 8.9.2009, an application for amendment under Order VI, Rule 17 of the CPC was filed by the Plaintiff/Petitioner, praying therein that he may be permitted to describe the land in suit by the letters started in the Commissioner''s report and map of the Advocate Commissioner to give a clear description of the land in suit as provided under Order VII, Rule 3 of the CPC and as required in law laid down by the Apex Court. The Civil Judge (Senior Division), Unnao, vide order dated 17.9.2009, rejected the amendment application, against which, a revision was filed before the District Judge, Unnoa, who, vide order dated 15.4.2009, also dismissed the same. Feeling aggrieved, the Petitioner has filed the instant writ petition inter alia on the grounds that the Courts below acted illegally in the exercise of their jurisdiction in refusing to permit amendment of the plaint to make it in consonance with the provision contained in Order VII, Rule 3 of the CPC and to provide a clear description of the property in dispute.

Placing reliance on Sampath Kumar v. Ayyakannu and Anr 2002 (49) ALR 591 (SC). Pankaja and Anr. v. Yellapa (Dead) by LRS. and Ors. 2004 (56) ALR 724 (SC) : 2004 (97) RD 451 : 2004 (21) AIC 16 . Prem Bakshi and Others Vs. Dharam Dev and Others, Andhra Bank Vs. ABN Amro Bank N.V. and Others, Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. 2006 (63) ALR 335 : 2006 (40) AIC 36 . M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., B.K.N. Pillai v. P. Pillai and Anr. 2000 (38) ALR 338 . Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, and Pasupuleti Venkateswarlu Vs. The Motor and General Traders, learned Counsel for the Petitioner submitted that no doubt jurisdiction to allow or not to allow an amendment is discretionary but the same will have to be exercised in a judicious manner after evaluation of the facts and circumstances in which the amendment is sought. The Hon''ble Supreme Court as also this Court in several decisions has laid emphasis on the fact that if the granting of an amendment really serves the ultimate cause of justice and avoids further litigation, the same should be allowed.

On the other hand, learned Counsel for the Respondent contended that there is neither any illegality nor infirmity in the impugned orders passed by the Trial Court 1. which has been approved by the revisional Court? Further, the amendment which has been sought by the Petitioner, if allowed, it will change the nature of the plaint, which is not permissible under law.

Object of Order VI, Rule 17 of the CPC is that the Court should adjudicate on the merits of the case that come before them and should consequently allow all the amendments that may be necessary for determining the real question in controversy between the parties. Order VI, Rule 17 consists of two parts. The first part is discretionary and leaves it to the Court to order amendment of pleading while the second part is imperative and enjoins the Court to allow all the amendments which are necessary for the purposes of determining the real question in controversy between the parties. It may be added that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed.

A party cannot be refused a just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court generally gives leave to amend the pleadings to a party unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent. In the present case the amendments which have sought to be incorporated will not change the basic nature of the written statement (sic-plaint).

After engaging an advocate the party may remain supremely confident that the lawyer will look after his interest. It will not be proper that the party should suffer for the inaction, deliberate omission or misdemeanor of his Counsel. It is well settled that litigant should not suffer for the lapses on the part of his Counsel. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice.

In view of the above, the writ petition is allowed and the order dated 17.9.2009 and the order dated 15.4.2010 are hereby quashed with cost of Rs. 5000. Application for amendment is allowed and the Petitioner are permitted to amend the plaint. Petitioner is directed to deposit the cost of Rs. 5000/- within a month before the Registrar of this Court, who, in turn, shall transmit to the account of Mediation and Conciliation Centre, High Court, Lucknow Bench, Lucknow forthwith. In case the Petitioner fails to deposit the aforesaid case, the benefit of this order shall not extended to the Petitioner.

Since the Regular Suit No. 144 of 1998 is lingering since long, I hope and trust that the Trial Court will make earnest Endeavour in deciding Regular Suit No. 144 of 1998, in accordance with law, after affording opportunity of hearing to the parties, expeditiously, say, within a period of two years from the date of receipt of a certified copy of this order.