Shashi Pal Sharma vs Tilak Raj

Virender Singh, J.—Petitioner (hereinafter to be referred as 'plaintiff' filed suit for mandatory injunction in the Court of learned District Judge

Kathua against the respondent (hereinafter to be referred as 'defendant') seeking direction to him to execute Sale Deed in respect of land

measuring 10 kanals in khasra No. 306/159 and 04 kanals in khasra No. 307/159 situated in village Kothi, Kathua and get the same registered in

favour of the plaintiff with further relief of permanent injunction restraining the defendant from causing any interference in the suit land by any

manner/mode, whatsoever either himself or through anybody else. Further prayer was that the defendant be restrained from selling the suit land to

anybody else. The total sale consideration was Rupees four lacs and twenty thousand for which the defendant had executed an Agreement to Sell

in favour of the plaintiff on 14.11.2007 duly attested by Notary Public at Kathua. The said suit is presently on the file of learned Munsiff Kathua.

The defendant filed written statement to the main suit and thereafter,, as many as seven issues were framed. The plaintiff thereafter moved an

application under Order 6 Rule 17 read with Section 151 CPC seeking amendment of the plaint on the ground that he intended to amend the

subject part and the prayer part of the plaint to up-to-date the plaint technically, inasmuch as the plaint to be read as 'suit for specific performance

of agreement to sell' made and executed by the parties on 14.11.2007 and notarized by the Notary Public Kathua on the same day, directing the

defendant to make and execute the sale deed of the aforesaid land and get the same registered by the competent Registering Authority and also

with a further relief for permanent injunction restraining the defendant from causing any interference in the suit land by any manner/mode

whatsoever, either himself or through anybody else and also from alienating or transferring by any mode including all rights therein as also from

disturbing the plaintiff's possession over the aforesaid land in any manner by any mode either himself or through anybody else. He sought the

amendment of the prayer part accordingly.

The amendment sought was opposed by the defendant on the plea that the proposed amendment, if allowed, would change the basic nature of

the suit entirely and will also alter the cause of action which would cause prejudice to the defendant. Apart from that, the application was resisted

on the ground that it is filed after the lapse of more than five years when the case was fixed for arguments on preliminary issue regarding

maintainability of the suit on which the onus was on the defendant. The other objection was that if the proposed amendment is allowed, it will take

the jurisdiction of the Court also.

Learned Munsiff ultimately dismissed the application of the plaintiff vide impugned order dated 19.08.2013. Hence, the instant petition by the

plaintiff u/s 104 of Constitution of J&K and Article 227 of Constitution of India seeking supervisory powers of this Court.

Mr. Mehta, at the very outset, stated that no doubt the State Legislature by Amendment Act of 2009 has incorporated certain changes in

different provisions of CPC including section 115 which excludes the remedy of revision, nevertheless the order impugned herein is open to

challenge by invoking supervisory jurisdiction of the High Court. He submitted that the learned Munsiff has dismissed the application of the plaintiff

on a very hyper technical ground without appreciating the real controversy, whereas it has been held that a party cannot be made to suffer for

typographic/technical error. Learned counsel submitted that for the purposes of deciding an application under Order 6 Rule 17 of CPC, a liberal

approach should be adopted and the general rule is to allow the application in order to avoid multiplicity of litigation for which the defendant at the

most could be compensated even by imposing cost upon the plaintiff.

Mr. Mehta submitted that order 6 Rule 17 of CPC gives unfettered powers to a Court to allow either party to the suit to alter or amend

pleadings at any stage of the proceedings and in the case on hand, the plaintiff does not intend to either change the nature of the suit or cause of

action nor he intends to change any averment made in his plaint except by substituting words 'suit for specific performance' instead of 'suit for

mandatory injunction' in the subject and prayer clause of the suit.

In order to substantiate his case, Mr. Mehta has relied upon certain judgments referred to in the petition itself.

No doubt, that the curtailment of revisional jurisdiction does not take away the constitutional jurisdiction of the High Court to have

superintendence over the Courts below, but this power is to be exercised subject to certain limitations. Those are; 1. when the Subordinate Court

has assumed jurisdiction where there exists none, or 2. in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or 3. Acting

in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and

thereby occasioning failure of justice. Examining the impugned judgment on the touchstone of aforesaid rationale, in my considered view, it does

not suffer from any illegality or infirmity on any count, warranting interference of this Court by invoking its constitutional power vested u/s 104 of

State Constitution. The judgments on which Mr. Mehta is relying upon would not strengthen his case on its individual facts, that too at this very

belated stage, whereas the defendant is also interested in early wrapping up of the proceedings. The instant petition, thus, calls for its dismissal at

this stage itself along with Connected CMA. Ordered accordingly.