Santosh Sahu vs Laxminarayan Sahu

1) By way of this petition, the petitioner has prayed for the following relief(s):-

“i. To kindly call for the records of the Civil Suit No.4-A/2017 pending before the Civil Judge Class-II, Dondilohara.

ii. To kindly quash the impugned order dated 28.01.2023(Annexure P/1) passed by the learned Civil Judge Class II, Dondilohara.

iii. To kindly make any other order that may be deemed fit and just in the facts and circumstances of the case including awarding of the costs to the petitioner.”

2) The petitioner is plaintiff, he instituted a suit for declaration of title and permanent injunction in respect of land bearing survey No.146/4 (0.240 hectare); survey No. 527 (0.150 hectare); survey No.530/6 (0.180 hectare); survey No.530/12 (0.140 hectare), and sought for relief of the declaration of ownership pertaining to land bearing Survey No.527 admeasuring total area 0.150 hectare and declaration of title 1/3rd share on land bearing Survey No.146/4 total area 0.240 hectare and further relief of permanent injunction.

3) The respondent No.1 and 2 filed written statement and denied the plaint averments.

4) Learned Court below i.e. Civil Judge Class-2, Dondilohara, District Balod (CG) framed issues, thereafter, the petitioner moved an application under Order 6 Rule 17 of the C.P.C.to add Jeevan Lal s/o Bhagwan Singh and State of Chhattisgarh as party defendant Nos.3 & 4, and also sought certain amendment with regard to declaring the land bearing survey No. 530/12 admeasuring 0.14 hectare in favour of the defendant No.2 as illegal and same would not be binding upon him. In this regard he sought relief to declare such transactions dated 08.08.2014 and 17.08.2016 null and void. The application was replied by the respondent No. 1 and 2, whereby they denied the relief sought by the petitioner and stated that the application for amendment has been moved at the belated stage and it would change the nature of suit. The learned Court below vide order dated 28.01.2023 held that no such relief was passed in favour of the defendant No.2 by the Gram Panchayat concerned.

5) Learned counsel for the petitioner would submit that the property in question was recorded in the name of father of the petitioner prior to filing of civil suit but dispute is between the brothers and sisters and due to inadvertence, this fact could not be pleaded in the plaint, but in order to avoid multiplicity of proceedings, the application for amendment was moved before the Court below.

6) On the other hand, learned counsel for the respondents would submit that proposed amendment would change the nature of the suit as amendment application has been preferred at the belated stage, therefore, the learned Court below has rightly rejected the application.

7) I have heard learned counsel for the parties and perused the impugned orders.

8) The Hon’ble Supreme Court in the matter of  Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another, reported in 2022 SCC OnLine SC 1128 in para-70 held as under:-

Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to  disallow the prayer. Where the aspect  of  delay  is  arguable,  the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)”

9) Likewise in the matter of Smt. Rekha and Ors. vs. Smt. Lalithamma and Ors. in Writ Petition No. 55337 of 2018 (GM-CPC) dated 13.6.2022, the High Court of Karnatka in para-6, 7 and 8 held as under:-

“6.  Admittedly,  the  present  suit  is  one  for partition and separate possession. When the matter was set in for further cross-examination, the plaintiffs by way of proposed amendment intend to incorporate para 5(a). In para 5(a), plaintiffs intend to plead additional pleadings relating to transactions between defendant Nos.1 and 5. The proposed amendment does not change the fundamental character of the suit. It is trite law that all amendments are to be liberally allowed relegating the parties to substantiate their claim even in respect of proposed amendment. Thought this Court would find some laxness on the part of plaintiffs in not seeking amendment before commencement of trial but, however, to advance justice, a reasonable opportunity needs to be given to plaintiffs.

In a partition suit, valuable property rights are involved. If a property is a joint family ancestral property, it goes without saying that the members of a joint family have a pre-existing right and therefore, the Court drawing a preliminary decree merely declares the pre-existing right. It is in this background, this Court is not inclined to adopt a hyper technical approach and decline the plaintiffs in proving their case by incorporating the proposed amendment. Mere allowing the amendment application in itself would not amount to granting the relief sought in the proposed amendment. The burden still remains on the plaintiffs to establish the claim made in the proposed amendment.

This Court is also of the view that no serious prejudice will be caused to the respondents/defendants if the proposed amendment is allowed. The material on record would also indicate that it is only when a counter claim was filed by defendant No.4, the Court had to frame additional issues and therefore, the plaintiffs have sought to amend this plaint seeking leave to incorporate the proposed para 5(a). As against this proposed amendment, it is always open for the respondents/defendants to file additional written statement. It is always open for the respondents/defendants to lead rebuttal evidence insofar as proposed amendment is concerned. Therefore, I am of the view that the order under challenge is not at all sustainable.”

10) Taking into consideration the facts and circumstances of the case, the dispute appears to be among the members of a joint family concerning a pre-existing right over the property in question; further, mere allowing the amendment application would not lead to grant of relief sought in the proposed amendment; the burden still remains on the plaintiff’s shoulders to establish the claim made in the proposed amendment, and it is always open for the respondents/defendants to file additional written statement. Further considering the law laid down in the matters of Sanjeev Builders Private Limited (supra) and Smt. Rekha (supra), the order passed by the learned Civil Judge Class II, Dondilohara, on 28.01.2023, is hereby set aside, and the application moved by the petitioner under Order 6 Rule 17 of the C.P.C. is allowed. The defendants would be at liberty to move application for consequential amendment, if advised.

11) With the aforesaid observation, the petition stands disposed of.