Tulsidas Sanghani vs Sunil Maheshwari

Learned counsel for the petitioner submits that respondents No.1, 2, 3 & 7 were ex-parte before the trial Court and the notice against respondents No.1 & 2 may be dispensed with.

On due consideration, notice against respondents No.1 & 2 is dispensed with.

This petition has been filed challenging the order dated 27.1.2023 passed by the 1st Civil Judge, Class-I to the Court of 1st Additional Judge, Raipur in Civil Case No.223-A/2011 whereby the application preferred by the petitioner/plaintiff under Order 6 Rule 17 of the CPC was dismissed.

Facts of the case are that the petitioner/plaintiff has filed a civil suit for declaration, permanent injunction and possession. During the pendency of the suit, the petitioner/plaintiff has moved an application under Order 6 Rule 17 of the CPC to add the relief to declare the impugned sale deed as null and void, and further that during the pendency of the case, the defendants have taken forceful possession of the suit land, therefore, relief of possession was also sought for and accordingly, valuation of the suit and the Court fee also sought to be amended. The said application was dismissed by the impugned order.

Learned counsel for the petitioner would submit that the impugned order is not sustainable and the proposed amendment does not change the nature of the suit. The subject amendment has also been pleaded, but during the pendency of the suit, on account of subsequent development, the subject amendment has become essential. Therefore, learned counsel prays to allow the petition and quash the impugned order. Reliance is placed in the matter of Lakhan Lal S/o Baratia Sahu & Others Vs. Asharam, S/o Hari Mahra & Another {2019 LawSuit (Chh) 1653} (SA No.236/2004, decided on 6th August, 2019).

Per contra, learned counsel for respondents No.4 & 5 would support the impugned order.

In the matter of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Another {2022 SCC OnLine SC 1128}, principles concerning amendment have been summarized and it has been categorically held that in dealing with a prayer for amendment of pleadings, the Court should avoid a hyper-technical approach and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. The amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. It was materially observed that delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

In the matter of Lakhan Lal Vs. Asharam (Supra), the following was materially observed at para-19:-

“19. The Supreme Court in the matter of Pratap Singh Vs. Shri Krishna Gupta and others 1956 AIR (SC) 140 has succinctly held that technicalities should be deprecated so that the substance may count and take precedence over from and it would be putting too much premium on technicalities of the rules of pleading and allowing them to became rather the mistress instead of being as they should be handmaid to the cause of administration of justice, if the Court folds its hand and doesn't take note of all subsequent event or developments which might affect the relief claimed in the law and derive the parties to obtain relief on the basis of changed or subsequent developments as it is well settled that Court is to take note of such subsequent event and to shorten litigation and to prevent multiplicity of proceeding (See M/s. M. Laxmi & Co. Vs. Dr.Anant R. Deshpande & another, 1973 AIR (SC) 171 and Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha 1974 AIR (SC) 1178).”

Considering the facts of the present case and the nature of amendment, as the proposed amendment was sought on account of subsequent development and the same is necessary to decide the real controversy between the parties, this Court is of the opinion that the impugned order is not sustainable.

For the foregoing, the impugned order is set aside subject to payment of cost of Rs.500/- to be paid to the other side. The application for amendment is allowed and the trial Court is directed to afford an opportunity for consequential amendment to the other side and thereafter proceed in accordance with law.

With the aforesaid direction, the Writ Petition is allowed.