Subhash Chand Jain vs Natthu Singh and Another

U.C. Maheshwari, J.—The petitioner/plaintiff has filed this petition under Article 227 of Constitution of India, for quashment of order dated 20.04.12 (Annexure P-6) passed by IIIrd Civil Judge Class-II, Sagar, in Civil Original Suit No. 20-A/2011, dismissing his application filed under Order 6 Rule 17 of the C.P.C., for amendment in the plaint to add the prayer of possession of the disputed land and of mesne profit, has been rejected. It is undisputed fact between the parties that initially the petitioner herein filed the impugned suit against the respondent for perpetual injunction with respect of alleged land.

In pendency of the suit, on causing the damages to the crops by the respondent no. 1 an amendment application to amend the plaint for damages of Rs. 40,000/- was filed, but on consideration vide order dated 18.01.12 (Annexure P-5), the same was dismissed by the trial court. Subsequent to dismissal of such application, the petitioner herein filed the impugned amendment application (Annexure P-3). Contending that during pendency of the suit, he has been dispossessed by the respondent no. 1 from the disputed land and on the basis of such subsequent event wants to amend the plaint for grant of decree against the respondent no. 1 for possession of the disputed land as well as of the mesne profit at the rate of Rs. 10,000/- per annum.

The proposed amendment was seriously opposed by the other side before the trial court. On consideration such amendment application Annexure P-3, was dismissed by the trial court, on which the petitioner has came to this court.

It is settled proposition of law that the amendment proposed by either of the parties of the civil suit, on the basis of the subsequent events which had taken place during pendency of the suit then such amendment could not be refused in normal course unless the compelling circumstances are available to refuse the same. The merits of the same could be examined only after becoming the proposed amendment to be the part of pleadings.

My aforesaid view is also fortified with the principle laid down by the Apex Court in the matter of Pasupuleti Venkateswarlu Vs. The Motor and General Traders, , in which it was held as under:

We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view . . .

On examining the case at hand in view of the aforesaid principle then in available circumstances, in which plaintiff wants to amend his plaint for the prayer of possession of the disputed land as well as for mesne profit, on the basis of subsequent event which had come into existence in pendency of the suit. Such principle is directly applicable. Pursuant to it, it is held that trial court ought to have allowed the amendment application but committed error in dismissing the same.

In view of the aforesaid discussion, the impugned order being perverse and contrary to the settled legal proposition is not sustainable, hence by allowing this petition, the same is set aside and the petitioner application Annexure P/3, is hereby allowed and he is directed to incorporate the proposed amendment in the plaint before the trial court within 15 days from today. Consequently, the respondent no. 1 is also extended the opportunity to file the appropriate application for consequential amendment in this regard before the trial court within further 15 days and the trial court is directed to consider such application and proceed further with the matter only after incorporating the aforesaid amendment as well as the consequential amendment if proposed. The petition is allowed as indicated above. In view of the aforesaid order IA. No. 8892/12, the stay application does not require any further consideration, hence the same is hereby disposed of.