Smt. Kalawati and another vs Vinod Kumar

M.S. Liberhan

The only question raised in this Revision Petition is whether an amendment can be allowed challenging the orders of Hon''ble Supreme Court in which the order dated 21.11.1983 which was under challenge in civil suit had merged.

The relevant facts for determining the question raised are that on 30.9.1983, suit for declaration was filed claiming that order dated 21.11.1983 passed by the Rent Controller, Hissar, has been obtained by fraud and misrepresentation. It is not disputed that order dated 21.11.1983 was confirmed finally by the Supreme Court by dismissing the SLP and maintaining the order of ejectment The issue with respect to maintainability of the suit was directed to be treated as a preliminary issue while deciding Civil Revision No. 1122 of 1987 on 27-4-1987. Arguments were heard. Orders were reserved on the preliminary issue when the Plaintiff Respondent preferred an application under Order 6 Rule 17 and sought a permission to amend the plaint in order to challenge the order passed subsequent to 21.11.1983 by the Appellate Authority, Revisional Authority and that of the Supreme Court. No other amendment was sought. The amendment has been allowed by the impugned order.

The learned Counsel for the Petitioner contends that amendment cannot be allowed as the order passed by the Rent Controller had merged into the order passed by the Hon''ble Supreme Court and the trial Court has no jurisdiction to set aside the order. He relies on 1988 (2) P.L.R. 406 wherein it was observed:

The orders of this Court cannot be found fault with in the Subordinate Courts of Civil jurisdiction

There is no dispute with respect to the proposition of law laid down by the Division Bench but this may be so on merits.

In my considered view the judgment cited does not apply to the facts and circumstances of this case at this stage. The judgment maybe taken into consideration at the time of disposal of the suit as presently the only controversy before the trial Court is whether the Plaintiff should be permitted to amend the plaint. Whether the grounds to challenge the order are substantial is not the consideration at the time of allowing the amendment or disallowing the same. Merits of the suit shall be decided after the proposed amendment is allowed. While considering the application for amendment, merits of the proposed amendment cannot be gone into. The Court need not and ought not go into truthfulness or the falsity of facts or grounds to be added by the proposed amendment. No finding with respect to the merits of the amendment should be given at the time of disposing of the application for amendment It is only if the amendment is allowed that it can be decided on merits. I find support from Sher Singh v. Paras Ram AIR 1979 H.P. 59 and Maitreyee Banerjee Vs. Prabir Kumar Mukherjee, wherein it has been observed:

(i) that Court need not or ought not go into alleged falsity of case in the amendment;

(ii) nor finding ought to be given on merits of an amendment sought for without first allowing the amendment and then tried.

Learned Counsel relies on Madan Mohan Aggarwal v. Smt. Mansadevi (1985-2) P.L.R. 206 in order to buttress his claim that when a case had been fixed for order, no amendment can be allowed. In the judgment cited, it was observed that there are only two stages envisaged under Order XVIII Rule 17-A for the purpose of producing additional evidence. During the pendency of the suit, no additional evidence can be led at a later stage of the suit As no stage is left after the arguments are heard, to permit the parties to lead their additional evidence, the application for additional evidence was disallowed.

The facts and law laid down in the judgment cited has no relevancy to the facts of the case either on law or otherwise. It cannot be disputed that an amendment can be allowed even at appellate stage, then there are no reasons to hold that an amendment cannot be allowed before the passing of the judgment.

It is not disputed that possession has already been taken by the Petitioner. Orders of the Rent Controller stood satisfied. In these circumstances, the Respondent Plaintiff does not stand to gain by delaying the suit nor any mala fide can be inferred from it. It is well accepted principle that amendment can be allowed at any stage and should be allowed liberally in order to finally determine the controversy between the parties. The amendment cannot be refused solely on the ground of being sought belatedly or negligently. For seeking the amendment belatedly or for negligence of a party, the other party can be compensated with costs. Rules of procedure are meant for doing substantial justice and not to trap the litigants.

In my considered view, the amendment being sought challenging the order passed by the Appellate and Revisional Authority on the ground of having been obtained fraudulently and by misrepresentation is not barred by any law or the law of limitation The trial Court has exercised its jurisdiction and used discretion keeping the law laid down by the various judgments for permitting the amendment. No error of jurisdiction has been pointed out.

In view of my above observations, I find no force in the revision petition. The same is dismissed accordingly.