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1980 DIGILAW 558 (ALL)

Sakhawat v. Yusuf Hussain

1980-06-04

I.B.SINGH

body1980
JUDGMENT I.B. Singh, Member. - These are two plaintiff's connected appeals against judgment and decree dated 28-10-1976 passed by Ld. Additional Commissioner, Allahabad Division, allowing appeal nos. 250 and 251 Farrukhabad dismissing both the suits held to be barred by Section 34 of the Specific Relief Act setting aside judgment and decree passed by Revenue Officer Farrukhabad dated 30-4-1974 decreeing plaintiff's suit. 2. Two amendment applications have been filed seeking amendment of the plaintiffs of the two connected suits regarding alternative relief for possession. 3. Objection were filed on 20-5-1980 and today. 4. The narration of brief facts will be helpful. The plaintiff filed the two suits after the death of the her husband claiming to be co-tenant with defendant no. 3, in one suit and with him and others in the other suit, alleging that mutation was wrongly made in favour of defendants 1 and 2 who had no concern; that co-wife of her husband was co-tenant with defendant no. 3. etc. and after her death her husband became co-tenant who also died shortly and was inherited by the plaintiff who was co-tenant in possession. Defendant 1 and 2 had pleaded inter alia bar of section 34 of the Specific Relief Act. The trial court had decreed the plaintiffs suit and had held that the suit was not barred by Section 34 of the Specific Relief Act. The first appellate court allowed the appeal and dismissed the suit only on the ground that it was barred by section 34 of the Specific Relief Act. 5. I have heard the Ld. counsel for the parties and have perused the record. 6. It has been argued on behalf of the appellate-applicant that amendment can be granted at any stage including the stage of Second appeal and at least amendment for alternative relief for possession can be granted at any stage. Reliance has been placed on Nandauri Yogananda Lakshminarasimhachari and others v. Sri Agastheswaraswamivaru, A.I.R. 1960 (S.C.) page 622. Ganpat Singh v. Sher Bahadur Singh and others, A.I.R. 1978 Allahabad page 66. Smt. Shyam Dulari v. Bhagwan Das and others, A.I.R. 1979 Allahabad page 192. M/s Ganesh Trading Co. v. Mauji Ram, A.I.R. 1978 (S.C.) page 484. 7. It was argued in reply that the plaintiff had filed suit for pure declaration of co-tenancy with defendant no. 3 and others. Defendants nos. 1 and 2 were alleged to have no concern. Smt. Shyam Dulari v. Bhagwan Das and others, A.I.R. 1979 Allahabad page 192. M/s Ganesh Trading Co. v. Mauji Ram, A.I.R. 1978 (S.C.) page 484. 7. It was argued in reply that the plaintiff had filed suit for pure declaration of co-tenancy with defendant no. 3 and others. Defendants nos. 1 and 2 were alleged to have no concern. They had acquired right by prescription and the amendment to the prejudice of rights acquired by them cannot be allowed at this stage when such a long time elapsed and the limitation against the appellate has intervened to their benefit. Reliance has been placed on Hirdai Narain v. Bhagwati Prasad, 1954 R.D. page 79. Ram Lakhan v. Ram Jus, 1977 R.D page 324 and Kanhaiya and others v. Dhaneshwari, 1972 A.L.J. page 575. It was further argued that the amendment application has not been verified as required by law. 8. The amendment application need not have verification clause, if the amendment is allowed verification can be done. 9. The main point for consideration is whether the amendment seeking alternative relief for possession should be allowed at this late stage of second appeal or not. 10. Order VI, Rule 17 of the C.P.C. runs as follows:- Rule 17. "Amendment of pleadings :- This court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purposes of determining the real question in controversy between the parties." The rule authorises amendment of the pleadings at any stage of the proceedings which includes the stage of even second appeal which is the continuation of the proceedings of the suit. 11. In Ganpat Singh v. Sher Bahadur Singh, A.I.R. 1978 (Allahabad) page 66. It was held that:- "The plaintiffs had asserted and proved their title the necessary consequence was that if the defendants were in possession without title, the plaintiff could claim for delivery of possession proved that relief was not barred by limitation or any other law. The plaintiff by the amendment sought the relief of possession in the alternative. There is no bar in claiming a relief in the alternative. In these circumstances the amendment ought to have been allowed." 12. In Smt. Shyam Dulari v. Bhagwan Das and others, A.I.R. 1979 Allahabad 192. The plaintiff by the amendment sought the relief of possession in the alternative. There is no bar in claiming a relief in the alternative. In these circumstances the amendment ought to have been allowed." 12. In Smt. Shyam Dulari v. Bhagwan Das and others, A.I.R. 1979 Allahabad 192. It was held that:- "Amendment of pleadings are normally to be allowed unless they cause injustice to the other side. An amendment can be allowed even at the appellate stage provided it is not of such a nature as to change the nature of the suit. Thus, where the plaintiff brings a suit for only cancellation of the sale deed in defendant's favour by omission is by inadvertence, the amendment should be allowed even at the appellate stage when the necessary allegations already existed in the plaint." 13. In M/s Ganesh Trading Co. v. Muji Ram, A.I.R. 1978 (S.C.) page 484. It was held that:- "Procedural law is intended to facilitate and not to obstruct the court of substantive justice. Provisions relating to pleadings in Civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable course to determine what is really at issue between parties and to prevent divisions from the course which litigation on particular causes of action must take." 14. In Nanduri Yogananda Lakshminarasimhachari and others v. Sri Agastheswaraswamivaru, A.I.R. 1960 (S.C.) page 622. It was held that:- "The High Court was right in allowing at the appellate stage the amendment by the addition of a new prayer in the prayer clause of the plaint when all the allegations had been made in the plaint, requisite pleas had been raised by the appellate, an issue was framed on the question, the parties were fully congnizant of the points in controversy and they had led the necessary evidence." 15. The ruling riled upon on behalf of the respondent Hirdai Narain v. Bhagwati Prasad, 1954 R.D. page 79 is not applicable to the present case because in it, it was held that by the amendment sought, the nature of the suit was sought to be changed. So is the case with Ramlakhan v. Ram Jus, 1977 R.D. page 324. The ruling reported in Kanhaiya and others v. Mst. So is the case with Ramlakhan v. Ram Jus, 1977 R.D. page 324. The ruling reported in Kanhaiya and others v. Mst. Dhaneshwari, 1972 A.L.J. page 575 is regarding right of withdrawal of a suit under Order XXIII Rule 1 (1) of the C.P.C. and is not at all applicable to the present case. 16. In the present case the appellant's suit was decreed by the trial court and the issue on the bar of Section 34 of the Specific Relief Act was decided in the negative. The claim of the plaintiff having been decreed by the trial court; he having been found in possession by the trial court and the suits having been held not to be barred by Section 34 of the Specific Relief Act by the trial court. In my considered opinion by asking for amendment in the relief as alterative relief for possession, does not either change the nature of the case or the case of the action and the amendment sought should be allowed at the stage of the second appeal because the issue was framed on the point, i.e. whether the suits were barred by Section 34 of the Specific Relief Act or not and the parties knew their case from the very beginning and such amendment if allowed will not change either the nature of the case or cause of action. The omission of not having claimed alternative relief for possession may be by inadvertence or by negligence but the necessary allegations existed in the plaint and the amendment sought, does not go to change the nature of the suit and cannot be said to be prejudicial to any interest of the respondent. The plaintiff had asserted her title and had proved it as held by the trial court and the first appellate court did not decided the title of the plaintiff or the defendant and merely decided that the plaintiff was not in possession and suit was barred by Section 34 of the Specific Relief Act. The proposed amendments were not sought in the first appellate court because the plaintiff was held to be in possession by the trial court which shows a bonafide belief of the plaintiff to her claim of being in possession also. In such circumstances the amendments sought should be allowed. 17. In view of the above, the amendment applications are allowed subject to payment of Rs. In such circumstances the amendments sought should be allowed. 17. In view of the above, the amendment applications are allowed subject to payment of Rs. 50/- in each case which shall be paid or deposited within a month from this order and the objections against them are hereby dismissed. 18. In view of the amendment applications being allowed. Both the second appeals are liable to be allowed and the judgment and decree passed by the lower appellate court, are liable to be set aside and the case needs to be remanded for deciding the appeal no merits after allowing the required amendments. The parties shall not be allowed to raise any further plea or adduce any further evidence as they have led evidence and have raised the required pleas. 19. In view of the above, both the appeals are allowed. The judgments and decrees passed by lower appellate court are set aside and the both appeals are remanded to the lower appellate court for deciding them on merits after allowing the required amendment after hearing the parties.