Samurailatpam Ningol Sanglakpam Ongbi Nungsitombi Devi v. Sanglakpam Nimai Sarma
1965-06-21
RAJVI ROOP SINGH
body1965
DigiLaw.ai
ORDER : This revision petition is directed against the order of learned Munsiff, Imphal, by which he accepted the application for amendment of the plaint presented by the plaintiffs. 2. The facts leading up to this revision petition may be briefly described as follows : On 12-12-52 the plaintiffs 1, 2, 3 and 4 brought a suit (Title Suit No. 77, of 1952) against the defendants (petitioners) for declaration of title to the land under patta No. 76/218-Ah. which consists of paddy land and homestead land, by right of inheritance and for possession of the same in the Court of Munsiff, Imphal. The suit was decreed on 29-9-58 to the effect that the plaintiffs would get the entire paddy land portion and half of the homestead la and other half would go to the defendants. On appeal the learned District Judge, vide his judgment dated 30-11-61 modified the decree in the extent that the plaintiffs would get a joint possession of the homestead land portion and they would get the entire paddy land portion. 3. Being aggrieved by this judgment and decree of the learned District Judge, the defendants preferred an appeal to the Court of Honble Judicial Commissioner. The decrees of the lower Courts were set aside by this Court and the case was remanded back for fresh trial according to the observations made in the judgment. When the learned Munsiff was processing with this case, on 22-8-63, the plaintiffs presented an application to amend the plaint by replacing para 7 of the plaint by the new para as laid down in the petition on the allegation that the suit was started in the year, 195, when the practice of allowing lawyers to represent their clients was just started in the Courts of Manipur and that the lawyers were also by that time quite fresh and they were not then fully conversant with the technic of drafting pleadings, and as such, due to bona fide mistake and want of experience there had been some omissions in citing the facts of the case in the plaint. The plaint is, therefore accordingly required to be amended by giving some additional facts to clear out the vagueness appearing in para 7 of the plaint. This amendment is very material for the disposal of the suit on merits, and it will not, in any way, change the character and nature of the suit.
The plaint is, therefore accordingly required to be amended by giving some additional facts to clear out the vagueness appearing in para 7 of the plaint. This amendment is very material for the disposal of the suit on merits, and it will not, in any way, change the character and nature of the suit. The defendants 1 and 2 raised objection regarding this amendment petition. Their contention was that the proposed amendment is not intended to clear up an alleged vagueness in para 7 of the plaint, but to introduce an entirely inconsistent case from what was set up in the original plaint. Besides, the amendment is mala fide, and has been made after an inordinate delay without any explanation for making the petition after such a delay, and as such, it should be rejected. Moreover, it will create grave prejudice to the contesting defendants, therefore this amendment petition should be rejected. 4. The learned counsel for the petitioners contended that by this amendment the plaintiffs want to set up an entirely new and inconsistent case from the one which was set up in the original plaint, therefore this amendment petition being against the provision of Or. 6 R. 17, C.P.C. should be rejected. It was further pointed out that the statement of para 7 of the original plaint is clear and free from any ambiguity, but the plaintiffs in order to introduce a new case have taken this plea of vagueness in para 7 of the plaint. It was further alleged that this petition for amendment has not only been made after an inordinate delay but it is mala fide one, and if this amendment would be allowed in that case the valuable rights accrued to the petitioners would be taken away. The learned counsel for the petitioners pointed out that the plaintiffs in order to meet the points raised in the judgment of the Honble Commissioner have presented this application for amendment of the plaint. In support of his arguments he placed reliance, upon the case Shib Ram v. Faqira, AIR 1925 all 705. In this case the plaintiffs brought a suit on the footing that the defendants were their tenants. The defendants pleaded that they were not tenants under plaintiffs. The defendants proved their case. The third party whose title was set up by the defendants was not party to the case.
In this case the plaintiffs brought a suit on the footing that the defendants were their tenants. The defendants pleaded that they were not tenants under plaintiffs. The defendants proved their case. The third party whose title was set up by the defendants was not party to the case. That party was in possession in this case Mukerji, J. held that it was not open to the plaintiffs; to shift their ground and claim to eject the defendants as trespassers and that the plaintiffs should not be allowed to amend or implead the said third party. He also referred to the case Kokamal Madhoram v. Gulabsing Gurudatsingh, AIR 1925 Bom, 248. In this case Honble Macleod, C.J. held that the plaintiffs cannot by amendment be allowed to substitute one plaint for another. He also relied on the case reported in Ran Singh v. Mukhthiara Singh, AIR 1953 Pepsu 105. In this case Chopra, J. observed that where an amendment does not amount to a mere clarification of the position put forward in the plaint or rectification of any formal defect therein, but, if allowed, would result in plaintiffs going; back upon his own admissions and disproving facts which he himself asserted in the plaint and got a decision against him; such amendment would necessarily change the nature of the suit and cannot be allowed at the stage of appeal. Reliance was also placed on the case V.T. Elaya Pillai v. Ramasami Jadaya Goundan AIR 1947 Mad. 165. In this case Rajamannar, J. observed as follows : "Where the suit as originally laid is on the specific ground that the transactions were vitiated by undue influence and fraud, the Court should not permit the plaintiff to amend the plaint by the addition of a new plea based on quite a different ground, namely, that though the suit transactions were valid they would not be binding on the successors to the plaintiff or binding on the estate after the lifetime of the plaintiff. The result of allowing such an amendment would be to introduce a completely new element unconnected with and in essence even. inconsistent with the grounds originally alleged in support of the plaintiffs claim". The learned counsel for the petitioners also placed reliance on the case Jagdish, Pandey v. Rameshwar Chaubey, AIR 1960 Pat. 54 .
The result of allowing such an amendment would be to introduce a completely new element unconnected with and in essence even. inconsistent with the grounds originally alleged in support of the plaintiffs claim". The learned counsel for the petitioners also placed reliance on the case Jagdish, Pandey v. Rameshwar Chaubey, AIR 1960 Pat. 54 . In this case Ramaswami, C.J. held that where the purchaser of a share of a coparcener in certain family property brought a suit for possession of that share and the trial Court wrongly granted a decree for possession, the appellate Court refused to allow the plaint to be amended by converting the suit into one for partition on the ground that it would change the whole basis of the suit necessitating a fresh trial from the beginning. 5. The learned counsel for the plaintiffs-opposite party in order to meet the arguments advanced by the learned counsel for the petitioners contended that the principle laid down in these rulings is correct and he does not dispute them. But according to Or. 6 R. 17 C.P.C. the amendment can be allowed at any stage of the proceeding. It can be allowed even in appeal or second appeal. In this case, this, petition for amendment was made just after the case was received on remand by the learned Munsiff. There was some vagueness in para 7, of the plaint, and the Honble Judicial Commissioner also pointed out about it, therefore this petition for amendment was presented for determining the real question in controversy. He also contended that by this amendment the character of the suit would not be changed to another or inconsistent character. This amendment will also not prejudice the opposite party. This amendment is also not going to substitute one distinct cause of action for another. The proposed amendment would not cause any injustice to the other side as the other side will get an opportunity to meet this case. In support of his argument he placed reliance upon the case Mahebubkhan Himmatkhan v. Mohamadkhan Lalkhan, AIR 1954 Nag. 54.
This amendment is also not going to substitute one distinct cause of action for another. The proposed amendment would not cause any injustice to the other side as the other side will get an opportunity to meet this case. In support of his argument he placed reliance upon the case Mahebubkhan Himmatkhan v. Mohamadkhan Lalkhan, AIR 1954 Nag. 54. In this case Sinha, C.J. observed as follows : "The introduction of a new case is no ground for refusal of amendment, so long as the defendant has the opportunity of meeting, that new case by amendment of the written, statement and by leading evidence in support of that defence." The opposite party also placed reliance on the case Maruti v. Ranganath, AIR 1955 Hyd 1 (FB). In this case, Palnitkar, J. while allowing the amendment observed as follows : "The principle on which an amendment will ordinarily be allowed is that the proposed amendment should not alter the nature of the suit. In certain cases an amendment will be allowed even to introduce a new ground of claim or allegation of fact inconsistent with the original pleadings if the Court thinks it just and necessary. A plaintiff should not, however, be allowed to amend the plaint in such a way as to introduce a new case altogether. Ma Shwe Mya v. Mating Mo Hnaung, AIR 1922 PC 249, Rel. on." However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice lathe other side. There is no injustice if the other side can be compensated by costs. Tildesley v. Harper, (1879) 10 Ch D. 393, Rel. on. A further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided Lakshniah Naidui v. Krishnaswami Naidu AIR 1935 Mad 286 and Motiram Danaji v. Shenu AIR 1932 Nag. 84 Rel. on.
Tildesley v. Harper, (1879) 10 Ch D. 393, Rel. on. A further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided Lakshniah Naidui v. Krishnaswami Naidu AIR 1935 Mad 286 and Motiram Danaji v. Shenu AIR 1932 Nag. 84 Rel. on. "Where, therefore, the plaintiff sought permission merely to add a prayer, for possession which did not alter the cause of action or change the essential nature of the suit, and the effect of the refusal of the amendment would have, been to drive the plaintiff to a fresh suit :" After having given my most anxious consideration to the arguments advanced by the learned Advocates on both sides I feel that the argument of the learned counsel for the plaintiffs carries weight. The object of Or. 6 R. 17 is that Court should get at and try the merits of the case of that come before them, and should consequently allow all amendments that may be necessary for the purpose of determining the real question in controversy between the parties provided it can be done without causing injustice to the other side. In Cropper v. Smith, ((1884) 26 Ch. D. 700) Brown, L.J. observed as follows : "It is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights .. .. .. .. I know of no kind of error or mistake which if not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour of grace .. .. ..
Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour of grace .. .. .. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice as anything else in the case as a matter of right." Moreover, the settled rule with regard to amendment of pleadings, is that a party is allowed to. make such amendments as may be necessary for determining the real question in controversy or to avoid multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the application is not made mala fide and the amendment can be allowed without injustice to the other side. Similarly, S.K. Das, J. while deciding the case Pirgonda Hongonda Patil v. Kalgonda Shidgouda Patil, (S) AIR 1957 SC 363 , laid down the following principle regarding the amendment of the plaint : "All amendments ought to be allowed which satisfy the 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. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by claim.
The ultimate test therefore still remains the same can the amendment be allowed without injustice to the other side, or can it not." In view of the above principle, it is clear that the amendment can be allowed at any stage o the proceeding in order to determine the real questions in controversy and to avoid the multiplicity of suits. The plaintiffs want to amend para 7 of the plaint on ground of vagueness. The para 7 of the plaint runs as follows : "7. That defendant No. 1 has been possessing and cultivating the lou portion of the land u/p No, 76/218 Ahallup from the Samvatsar of the plaintiffs father i.e. from about 1945 and that before that year the plaintiffs used to enjoy it." In this para the plaintiffs have used the following words : "Before the year 1945 the plaintiffs used to enjoy it." From this, it is not clear whether they enjoyed the land before 1945 by giving it to tenants on rent or otherwise, therefore it was necessary for the plaintiffs to clear this vagueness. The plaintiffs in order to clear this vagueness presented the application for the amendment of this para. I, therefore, find that in view of the facts of the case, the learned Munsiff was justified in allowing the amendment. In this case the. petitioners have alleged that this application was made after an inordinate delay and with a mala fide intention. But there is nothing on the record to infer like that. The plaintiffs presented this application soon after the case was received back by the learned Munsiff on remand. The petitioners have also alleged that it will cause injustice to them as the right accrued to them would be taken away. But on the scrutiny of the record, I find that there is nothing on the record by which it can be inferred that any right had accrued to the petitioners. The main contention of the petitioners, was that by this amendment the nature of the suit would be changed. But as pointed out above the nature of the suit is not going to be changed in any way. As regards the question of causing prejudice to defendants, I find that there shall be no prejudice to the petitioners as they shall get the chance to meet this case.
But as pointed out above the nature of the suit is not going to be changed in any way. As regards the question of causing prejudice to defendants, I find that there shall be no prejudice to the petitioners as they shall get the chance to meet this case. In the light of the foregoing discussions, the result is that the revision fails and is dismissed with costs. Advocates fee Rs. 50.00 np. Revision dismissed.