Shamsher Singh vs Arun Kumar

Jyotsna Rewal Dua, J

Petitioner is the plaintiff before the learned Trial Court. His application moved under Order 6 Rule 17 read with Section 151 of the Code of Civil

Procedure, seeking to amend the plaint has been dismissed by the learned trial Court vide order dated 17.08.2019. Aggrieved, he has preferred the

instant petition.

The suit for possession was filed by the petitioner against the respondent/defendant. The head note of the plaint prayed for ejectment of the

respondent from the room, kitchen, bathroom and veranda premises as detailed therein existing over part of land comprised in Khasra Nos.3252,

located in Upper Andora, Tehsil Amb, District Una, H.P. Suit was filed by the plaintiff as owner and landlord of the premises. Further prayers for

recovery of arrears of rent, damages for unauthorized use and occupation etc., were also made.

In the body of the plaint, the same position was reiterated in para-1 and para-3. However in para-6 of the plaint following was submitted:-

“6 That the defendant failed to handover the vacant possession of the shops in dispute to the plaintiff as agreed by him and after receiving the

notice to quit and now the plaintiff wants the premises in dispute for his own use. The plaintiff do not want to keep the defedant as his tenant in future

and accordingly the plaintiff determined the tenancy created in favour of defendant by serving him with legal notice to quit which has been duly

received by him. The defendant was called upon to handover the vacant possession of the premises in dispute and to pay arrears of rent and was

further called upon in case he hold over the possession of the shops after 30.09.2011. Then an amount of Rs.2,000/-(Rupees Two Thousand only)

shall be charged from defendant on account of unauthorized use and occupation after 20.05.2015 as damages.â€​

Para-14 of the plaint contained the relief clause. Para-14(i) pertained to seeking relief of ejectment of respondent/defendant from the

‘premises’. In para-14(ii) and (iii) prayer for arrears of rent and damages etc., was made in respect of ‘Shops’ in dispute.

2(ii) In his written statement, the respondent/defendant stated that the suit premises were taken on rent for the accommodation of his wife and

daughter. His defence was that his wife and daughter were not residing in the premises from April 2013 onwards and that the possession of the suit

premises was with the plaintiff ever since April 2013.

2(iii) On 29.11.2018, the petitioner moved an application for amendment of plaint under Order 6 Rule 17 read with Section 151 CPC. The gist of this

application was that the plaintiff sought to amend the word ‘Shop’ existing in the plaint at various places by substituting it with the word

‘Premises’. The application was opposed by the respondent/defendant on the ground of having been filed at belated stage without affording any

explanation for the delay. Learned trial Court vide impugned order dated 17.08.2019 observed that the suit was already at the stage of evidence. The

affidavits of PWs had been filed in the Court. The fact mentioned in the application for the amendment was in petitioner’s knowledge from the

very beginning. Earlier also, an application moved by the petitioner under Order 6 Rule 17 CPC for amendment of the plaint was allowed. Had the

petitioner been diligent, he could have easily incorporated present prayers in the earlier application. Therefore, finding the application made by the

petitioner as false and frivolous, the learned trial Court dismissed the same.

Learned Senior counsel for the petitioner submitted that by way of amendment only a typographical error, which had crept in the plaint was being

sought to be corrected and amended. The error came to the notice of the petitioner at the time of recording of evidence on 28.11.2018. The suit

property was ‘residential’ and not ‘shop’. This position was not in dispute even in the written statement. Therefore, the petitioner should

have been allowed to carry out the amendment prayed for by him.

Opposing this prayer, learned counsel for the respondent/defendant contended that the application was nothing but a ploy to linger on the proceedings.

Earlier also prayer of the petitioner for amendment of the plaint was allowed, whereby he was permitted to carry out certain corrections in the

description etc. of the suit property. The petitioner has not been vigilant. Repeated applications for amending the plaint are being filed by him. The suit

has already reached the stage of recording of evidence. Therefore, learned trial Court committed no error in dismissing the petitioner’s application

seeking amendment of the plaint.

There is no dispute with respect to the subject matter of the civil suit. The written statement reflects that the respondent/defendant also admits

residential nature of the suit property. Respondent’s defence is that the suit premises were taken on rent for the accommodation of his wife and

daughter. However, w.e.f. April 2013, they had handed-over the possession of the same to the petitioner. Though on facts, these are disputed

questions to be tried in the suit. But with respect to the nature of the suit property, there is no dispute between the parties that suit property is

residential and does not comprise of shops. Even in the head note and elsewhere in the plaint, the suit property is described as consisting of room,

kitchen, bathroom and veranda. Technically, the prayer in the amendment application is actually for correction of clerical mistakes in the plaint. No

admission is being sought to be withdrawn by the petitioner in this application for correcting the words ‘Shops’ occurring at certain places in the

plaint and substituting them with the words ‘Premises’. The correction sought for would not change the nature of the civil suit. No new cause of

action is being added. No prejudice shall be caused to the respondent/defendant in case the application is allowed. Respondent/defendant has always

understood the frame of the suit and the description of suit property as residential and has admitted it in his written statement. The amendment would

enable to have clarity of the premises in reference.

However this Court cannot be oblivious to the fact that the civil suit was filed by the petitioner in 2016. Admittedly, earlier also his application under

Order 6 Rule 17 CPC seeking amendment with respect to location of the suit property was allowed. Had the plaintiff been vigilant and diligent in

pursuing, then he would have corrected the mistake with respect to the nature of the suit property at that stage. The matter is now stated to be at the

stage of recording of evidence. The plaintiff has already produced his two witnesses including himself. These two witnesses have been cross-

examined by the respondent/defendant. As per the impugned order, after availing 13 opportunities for the plaintiff’s witnesses, the petitioner had

moved the instant petition for amendment in the plaint. The conduct of the petitioner reflects that he is prolonging and is not diligently pursuing the

matter. Therefore, it is a fit case where costs deserves to be imposed upon him.

For the aforesaid reasons, the instant petition is allowed. The order dated 17.08.2019, passed by learned Civil Judge-II Amb in CMA No.387 of 2019

in Civil Suit No.193 of 2015 is quashed and set aside. The petitioner is permitted to carry out the prayed for amendment in the plaint, subject to costs

of Rs.20,000/- to be paid to the respondent/defendant. Pending miscellaneous applications, if any, shall also stand disposed of.