Sanjiv Kumar vs Joginder Lal

Rajiv Sharma, J.—This petition has been instituted against Order dated 2.12.2014 passed by learned Civil Judge (Junior Division), Court No. II, Amb, District Una, Himachal Pradesh in Civil Suit No. 132/2011.

"Key facts" necessary for the adjudication of the present petition are that petitioner-plaintiff (hereinafter referred to as ''plaintiff'' for convenience sake) filed a suit for permanent injunction to restrain defendant-respondent (hereinafter referred to as ''defendant'' for convenience sake) from raising any construction or changing the nature or blocking the path marked X and Y as shown in the Site Plan with respect to part of Khasra No. 1720 measuring 0.14.62 hectares as per Jamabandi for the year 2007-08 and, in the alternative, suit for mandatory injunction by demolition of the structure and super-structure, if any, raised during the pendency of the suit. Suit was instituted on 12.7.2011. Status quo was ordered. Written statement was filed on 12.11.2012 and replication was filed on 24.3.2012. Issues were framed on 14.8.2013.

Plaintiff has also moved an application under Order 39 Rules 1 and 2 read with Section 151 CPC. Trial Court has granted interim relief. However, fact of the matter is that despite interim orders passed by trial Court, defendant raised construction and, in these circumstances, plaintiff moved an application under Order 6 Rule 17 CPC, seeking amendment of the head note of the plaint on 2nd page in 2nd line after the word ''position'' by adding ''and suit for issuance of mandatory injunction by removal of construction raised during the pendency of the suit over the portion denoted by letter ABCD by restoring the suit land into its original position and passage into its original position". Plaintiff further sought addition of new para after para No. 3 as 3A, "that the defendant during the pendency of suit has raised forcible construction despite of ex-parte stay order over the portion marked by letter ABCD as shown red in colour in the site plan prepared by the draftsman produced by the plaintiff and the same is an event subsequent." He further sought amendment of para No. 11 i.e. prayer clause of the plaint at page 5 in 13th line after the word ''Position" by adding "and decree for mandatory injunction by removal of construction raised during the pendency of the suit over the portion denoted by letter ABCD by restoring the suit land into its original position and passage into its original position"

Application was contested by the defendant by filing reply. Learned trial Court dismissed the application on 2.12.2014. Hence, this petition.

Learned trial Court has failed to take into consideration well settled principles governing amendment of plaint under Order 6 Rule 17 CPC. Trial Court, as noticed above, has restrained the defendant from raising any construction during the pendency of suit by passing status quo order but despite that he has raised construction. It is in these circumstances that plaintiff moved an application seeking amendment of plaint on the basis of subsequent development. Learned trial Court has erred in law by coming to the conclusion that the plaintiff was claiming same relief as sought for in the original plaint. Once the respondent has defied order passed by trial Court by raising construction, subject matter also changed which required amendment of the plaint. Plaintiff was required to seek specific relief by amending the plaint for demolition of construction raised during the pendency of the case. He was not required to go into the merits of the amendment. Respondent could have got opportunity to file written statement to the amended plaint. The suit was at the initial stage and amendment was also necessary for determining the real controversy between the parties.

Their Lordships of the Hon''ble Supreme Court in Ragu Thilak D. John Vs. S. Rayappan and Others, AIR 2001 SC 699 : (2001) 2 JT 11 : (2001) 1 SCALE 354 : (2001) 1 UJ 387 : (2001) AIRSCW 342 : (2001) 1 Supreme 328 have held that dominant purpose of allowing amendment is to minimise the litigation. Their Lordships have held as under:

"6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in para 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for."

Their Lordships of the Hon''ble Supreme Court in Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, AIR 2006 SC 1647 : (2006) 3 JT 607 : (2006) 3 SCALE 312 : (2006) 4 SCC 385 : (2006) AIRSCW 1538 : (2006) 3 Supreme 507 have held that object of Order 6 Rule 17 CPC is that 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. Their lordships have held as under:

"15. The object of the rule is that the 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.

As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.

While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

Their Lordships of the Hon''ble Supreme Court in Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Others, AIR 2012 SC 1887 : (2012) 4 SCALE 73 : (2012) 5 SCC 337 : (2012) AIRSCW 2257 : (2012) 2 Supreme 593 have held that Court''s approach while deciding such prayers should be liberal instead of hyper-technical. Their lordships have held as under:

"18. In the light of the said contention, we have carefully perused the agreement for sale dated 2.2.2006, parties to the same and the relevant provisions from the Code. We have already pointed out that the learned Single Judge himself has agreed with the objection as to proposed Defendants 3 to 5 and found that they are not necessary parties to the suit, however, inasmuch as the main object of the amendment sought for by the plaintiff is to explain how the money was paid, permitted the other reliefs including impleadment of Plaintiffs 2 and 3 as parties to the suit.

In Rajkumar Gurawara v. S.K. Sarwagi and Co. (P) Ltd. this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In para 18, this Court held as under:

"18. .. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation."

In Revajeetu Builders and Developers v. Narayanaswamy and Sons this Court once again considered the scope of amendment of pleadings. In para 63, it concluded as follows:

"Factors to be taken into consideration while dealing with applications for amendments

On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(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.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

Accordingly, the present petition is allowed Order dated 2.12.2014 passed by learned Civil Judge (Junior Division), Court No. II, Amb, District Una, Himachal Pradesh in Civil Suit No. 132/2011, is set aside. Application preferred by the plaintiff under Order 6 Rule 17 CPC is allowed. Amended petition is permitted to be taken on record by trial Court. Defendant is permitted to file written statement to the amended plaint within four weeks. Parties through their advocates are directed to appear before the trial Court on 22.6.2015.

Pending applications, if any, are disposed of.