Smt. Naraini Devi vs Gopal Lal and Others

Mohini Kapur, J.—In the year 1973 the plaintiff petitioner instituted a suit for pre-emption and injunction. The relief (rayed for was that the plaintiff''s suit for per-emption for the propery described in the plaint with red lines and marked as ABCD be decreed and the defendant No. 2 be directed to take the sale price and deliver possession over the property Another prayer was that during the pendency of suit the defendant No. 2 (purchaser) be restrained from making the constructions on the property marked as ABCD and DCEFGH. Alongwith the plaint an application for grant of temporary injunction was moved but this was dismissed. Now by way of amendment, the plaintiff wants to make several additions in the body of the plaint and also in the relief clause. The relief sought to be is that a declaration be made that ABCD and DCEFGH is part of a joint chowk of the petitioner and respondent No. 3 and the construction which had been made on the joint chowk-be demolished and the prayer for per-emption has been placed at No. 3 and that too in the alternate.

This amendment has been refused by the trial court on the ground that it will change the nature of the case which would affect the rights of the defendant. Against this order dated 8th August, 1986 the petitioner in July, 1987 and even though the contesting respondent was served ... was preferred this revision petition in 1987 the service of proforma respondent could not be affected and ultimately their names were deleted from the array of non-petitioner by order dated 13th Feb., 1995. Now it has come up for disposal. I am told that the proceedings in the suit are denied and no witness has been examined by the plaintiff in the trial court.

I have heard the learned Counsel for the parties in this petition.

On behalf of the petitioner it has been contended that all amendments which are necessary for deciding the real controversy between the parties should be allowed irrespective of delay in the moving of application. According to him amendments can be allowed even at the appellate stage and if the necessary material on basis of which the amendment is sought, is already on record ,the same should be permitted. Reliance hasbeen placed on Ishwar das v. State of M.P. and Ors. AIR 1979 SC 551 . It is argued that if the necessary material on which the plea arising from the amendment may be decided is already there then the amendment in the plaint may be granted. In Srinivas Ram Kumar Vs. Mahabir Prasad and Others, the plaintiff had been permitted to rely upon different rights alternatively and it was hali that he can make two or more sets of allegations and claim relief in the alternative. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, it has been held that an amendment ought to be allowed which satisfies two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. When the amendment was of purely legal nature and the party was not taking steps due to the negligence of the counsel, even after expiry of period of limitation, amendment was allowed in Kareem Bux and.Anr. v. Board of muslim wakis Raj and Ors. 1989 (2) RLR 226 . In Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, it was observed the rules of procedure are intended to be handmaid to the handmaid to the administration of justice and party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. If amendment can be allowed without in justice to the other side then it should not be refused on technical grounds. In Haridas Aildas Thadani and Others Vs. Godrej Rustom Kermani, it was held that the court should be liberal in granting prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side.

At one stage the learned Counsel gave the impression that the only amendment prayed for was in the relief part but later on it came out that he wants to introduce two paragraphs in the body of the plaint also. These paras relate to the pleadings that in the joint chowk which was marked as DCEFGH the defendant had no right to make construction or took it in his exclusive possession and that of the portion is not accepted to be part of the joint chowk the by way of pre-emption the petitioner should be given injunction.

To clarify the facts it may be mentioned that ABCD portion which is said to be portion of joint chowk and was open was sold to the contesting non petitioner and he made construction upon it. In addition to this land which was described as ABCD construction was also made on the land shown as DCEFGH and when the plaint was presented with the relief of pre-emption, the only relief about DCEFGH was that no construction should be made upon it.

The contesting respondent has opposed this incurnbatement application and contended that the nature of the suit will change. According to him if his party had encroached upon some land and was making construction, upon it then the suit for demolishing the construction or for declaration that the property was joint and the other party could not take it in his exclusive possession was to be filed within the period of limitation and in this case the amendment was sought after the suit remained pending for 13 years. A valuable right accrued to the non-petitioner would be defeated if this claim is allowed to be agitated now. According to him the nature of the suit would also change because the suit was not in respect of joint ownership about the portion of the chowk but was for per-emption in which the relief claimed is about the substitution of the plaintiff in place of the purchaser. Mt. Domini Kuer Vs. Ramsaran Lal and Others, has been relied upon to show as to what is the light of pre-emption and by citing Kamakhya Narain Singh Vs. State of Bihar, it has been held that where in a suit the plaintiff is not entitled for any relief on basis of pleadings, the plaintiff could not be allowed to amend his plaint for including such relief at a stage when the claim has become barred by limitation.

I have considered the rival contentions and it may be said that the principles governing the amendment of pleadings are clear by Order VI. Rule 17 C.P.C. which says that all amendments which are necessary for the determination of the real question in controversy and which do not alter the nature of the case should be allowed. This questions in controversy between the parties have to be in respect of the same subject matter for which the suit was filed. In the present case, when the relief of pre-emption was claimed then the same was in respect of property shown as ABCD. Hence, when the prayer for claiming a declaration that property ABCD is a joint property and any construction made on this land should be demolished is concerned, then this relief is in respect of this property which wasthe subject matter of dispute. The controversy in respect of this property equires to be determine between the parties and if the relief prayed for is allowed to be included in respect of this property then it cannot be said that the nature of the suit would change and case of the non-petitioner would be prejudiced because he would have to meet a case which was not known to him before.

As far as the amendment in respect of the portion DCEFGH is concerned, the only allegations in the plaint are that the non-petitioner has no right to make any construction on the same as to how the plaintiff was making affidavite by the construction, there are no allegations. The basis for this claim is being introduced for the first time in the amendment application and this portion DCEFGH was not the subject matter of sale of which the petitioner claimed a right of pre-emption. If the defendant has made encroachment upon this land or started making illegal constructions then this controversy is not connected with a right of pre-emption for which the suit was filed. Hence permitting an amendment in respect of the property described as DCEFQH would change the nature of the case and as such this part of the amendment cannot be allowed.

This petition is partly allowed. Paras 5(a) and (b) in the plaint and in the relief clause are permitted to be amended only in respect of the land described as ABCD and amendment in respect of the portion DCEFGH is refused. The petitioner shall pay a sum of Rs. 2,000/-by way of costs to the contesting defendant.

I would be failing in my duty if I do not comment upon the delay in the trial of the suit which is pending since long. This Court did not pass any stay order while admitting this revision petition but inspite of this no witness has been examined so far. The parties have not been able to give out any cause for this delay. In these circumstances, I direct the plaintiff petitioner to file the amended plaint in accordance with the above directions within a period of ten days and thereafter the defendant shall file written statement within a period of ten days from that date. The date fixed in the lower court is 30th September, 1995, as stated by the parties. The plaintiff shall produce her evidence before the court on that date. A copy of this order be sent to the trial court. The presiding officer shall see to it that the suit is disposed at an early date.