Shahzada Bashir Qari and Others vs Lala Sheikh and Others

Sunil Hali, J.—Plaintiff has filed a suit for right of prior purchase being a co-sharer regarding the land under survey No. 744 of Khewat No.

34 situated at Pandach, Ganderbal. An order of status quo was passed by the court on 09-08-1999. On an application filed by the defendant the

order of status quo was vacated on 04-09-2002. Revision came to be filed against this order, which came to be dismissed by the High Court in

the year 2004.

On an appeal filed before the IVth Additional District Judge, Srinagar order dated 04-09-2002 was vacated. While accepting the appeal the

court directed that the status quo as it existed in the year 1999 shall revive.

During the interregnum from 2002-04 the present petitioners are stated to have constructed the double story building on the said land. An

application seeking amendment of the written statement was filed, in order to incorporate the plea that since the construction has been raised on

this land and the title of the petitioner having been improved, may be allowed. This application was contested by the respondent/plaintiff on the

ground that the construction has been raised in violation of the court orders, for which appropriate proceedings have been filed in the court.

The application was considered by the trial court and the same has been dismissed. The court has after discussing in detail rejected the

application on the following grounds:

a. That the trial court while vacating the order of status quo in the year 2002 has felt in error in doing so as the order of status quo was earlier

confirmed by it.

b. that the amendment sought had the effect of non-suiting the plaintiff.

I have heard the Learned Counsel for the parties.

Order 6 Rule 17 permits an amendment in case it has the effect of determination of the controversy in the suit. For facilitation Order 6 Rule 17 is

quoted:

Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and

on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in

controversy between the parties.

Order 6 Rule 17 of CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings

and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of real controversy shall be

permitted to be made. The only exception provided under Order 6 Rule 17 is that it should not have the effect of inducing a different cause of

action from the one which is subject matter of controversy before the Court.

Applying this principle to the present case, it reveals that the petitioners have raised the construction after the suit was filed. They have averred

that this construction was raised by them during the period when there was no restraint from the Court. Being the lawful owners of the property

they had a right to raise the said construction. In view of the facts that the petitioners have raised the construction they have consequently improved

title over the property. It is also not in dispute that the said construction was raised after the written statement was filed.

There is no dispute that this construction has been raised, admittedly on a land owned and possessed by the petitioners after executing sale deed

with the original owner and they have a right to raise the construction on the said land. The fact of the matter is that the construction is raised there

and the petitioners have a right to incorporate this plea in their written statements, as it would be necessary for the purpose of determination of the

controversy in the suit. This, in my view, would not change the cause of action. The fact of construction having been raised on the suit land, which

is subject matter of dispute, cannot be ignored and it is bound to have consequences in the outcome of the proceedings. It is entirely a different

matter as to whether incorporation of this plea effects the rights of the plaintiff or not.

While dealing with the application under Order 16 Rule 17 the Courts are only required to permit such amendment in order to avoid multiplicity

of the proceedings. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing

prayer for amendment. The effect of such an amendment, as to whether it will relate back to the date when the suit was filed, is a matter, which is

to be determined by the trial court on the merits of such an amendment. Allowing the amendment in the present case would not take away the right

of the plaintiff to contest the merits of the application and its effect on the suit. It will be appropriate in the present case to allow this amendment, as

it arises fron/i the same cause of action. Amendment is being sought on the plea that the event has taken place during the course of the trial. I am

fortified by a judgment of the Supreme Court, reported in Sampath Kumar Vs. Ayyakannu and Another, para 11 of which reads as under:

In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from

instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking

relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suit it would be a sound exercise of

discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the

cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought

to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in

submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by

permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the

advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have

been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and

recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the

application for amendment has been filed.

The premises on which the trial court has proceeded to reject this application cannot be sustained. Even if the construction has been raised by

the present petitioners during the pendency of an order of restraint, the Court is not powerless to deal with the matter by taking recourse of Order

39 Rule 2-A. Any determination in these proceedings will give ample power to the court to pass any appropriate order if it is found that the court

orders have been violated. The court is not powerless to pass any order to ensure that the order of injunction passed by it is complied with. This

fact cannot be glossed over that the construction has been raised on the land in question, as such, it is required to be made part of the pleadings so

as to determine the controversy between the parties. By allowing this amendment the court has the power to address itself to the merits of the

controversy as stated hereinabove during the trial.

In view of what is stated above, the revision petition is allowed and the order of the trial court dated 25-07-2007 is set aside.

Parties are directed to appear before the trial court on 12th of May, 2009.