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1990 DIGILAW 115 (GAU)

Indian Oil Corporation Limited (Assam Oil Division) v. Meer Ishfaque Hussain

1990-06-18

B.P.SARAF

body1990
The petitioner being aggrieved by the order dated 13.2.84 of the Assistant District Judge No. l, Gauhati in Title Suit No.79 of 1979 allowing amendment of the plaint under Order 6 Rule 17 of the C.P.C. has approached this Court under section 115 of the Code of Civil Procedure. 2. The facts are brief. The opposite party, a landlord, filed a suit for eviction of the tenant, petitioner herein. The eviction was sought for mainly on the ground that the tenancy had expired by efflux of time. The defendant petitioner filed a written statement wherein protection was claimed under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, hereinafter "the Act. In view of this plea taken by the defendant, the plaintiff filed a petition under Order 6 Rule 17 of the Code of Civil Procedure, hereinafter “CPC" for amendment of the plaint by incorporating a new para, namely, para 7 (c) which was in the following terms : "7 (c). That the plaintiff begs to state that the land which has been described in the Schedule A of the plaint is a part of Dag No.967 (old)/374 (new) and it forms a part of the same holding and in the other part of the land there is a building of the plaintiff and the same was used as residence by the plaintiff. At present, it has been let out to tenants. The Municipal Holding No. of the building is 166 of Ward No, 16B of Gauhati Municipal Corporation. The land which is the subject-matter of the suit was reserved by the plaintiff for being used for his residence and the same is in the vicinity of the land and building used for the residence of the plaintiff landlord. This being the position, the land let out to the defendant does not\ come within the purview of Assam Non- Agricultural Urban Areas Tenancy Act and it is exempted as provided under section 2 (1) (c) and 2 (1) (d) of the aforesaid Act. A copy of the trace map has been attached herewith along with the plaint to show the action picture of the land which may be treated as part of the plaint." The learned trial Court after hearing the learned counsel for the parties by order dated 13.2.84 allowed the amendment. This order has been challenged by the defendant in the present revision petition. 3. This order has been challenged by the defendant in the present revision petition. 3. Mr.J.P. Bhattacharjee, learned counsel for the petitioner submits that by the amendment a new cause of action is sought to be added and a new case sought to be made out which had not been made out in the original plaint. This, according to the learned counsel cannot be allowed under Order 6 Rule 17 of the C.P.C. Mr.J.N. Sarma, learned counsel for the opposite party submits that the amendment does not in any way change the nature and character of the suit. The suit was for eviction of the defendant from the suit premises and it remains so. It is only in view of the plea taken by the defendants in the written statement claiming protection under section 5 of the Act that the amend­ment is relevant and became necessary to put the relevant facts on record to show that the land let out to the defendant did not even fall within the purview of the Act and, as such, question of protection from eviction under section 5 did not arise. The learned counsel, therefore, submits that in the instant case even if the amendment would not have been allowed the plaintiff was free and within time to file a fresh suit. No question of limitation is involved. By tae proposed amendment the defendant is in no way prejudiced nor any vested right of the defend­ant taken away. In support of his contention, Mr. Sarma relies on decisions of the Supreme Court in M/S Ganesh Trading Co. vs. Moji Ram, AIR 1978 SC 484 and Maitreyee Banerjee vs. Prabir Kumar Mukheriee, AIR 1982 SC 17 . 4. I have considered the rival submissions. The facts of the case are not in dispute. It is also not disputed that no question of limitation is involved. The only controversy is whether the amendment in question falls under Order 6 Rule 17 C. P. C. or not. Order 6 Rule 17 deals with amendment of pleadings. It provides: "The Court may at stage of the proceedings allow either party to alter or amend his pleadings in such manner and such on terms as may be just, and all such amendments shall be made as may necessary for the purpose of determining the real questions in controversy between the parties.'' 5. It provides: "The Court may at stage of the proceedings allow either party to alter or amend his pleadings in such manner and such on terms as may be just, and all such amendments shall be made as may necessary for the purpose of determining the real questions in controversy between the parties.'' 5. From a plain reading of the Rule, it is cleat that the power of the Court to allow amendment of the pleadings is very wide. The well-settled position is that all amendments ought to be allowed which satisty two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question and controversy between the parties. The doctrine, enunciated by Batchelor J. in Kisandas Rupchand vs. Rachappa Vithoba, 33 Bom. 644 and approved by the Supreme e Court in P. H. Patil vs. K. S. Patil, AIR 1957 SC 363 . is that amendment 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 rot be compensated in costs. For instance, take a case where the 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 in such a case must be refused. Because to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of" a good defence to the claim. The ultimate test is can the amendment be allowed without injustice to the other side, or can it not ? To the same effect is the decision of the Supreme Court in M/S Ganesh Trading Co. vs. Moji Ram, AIR 1978 SC 484 wherein it was observed: " ••• that provisions for the amendment of pleadings, ... are intended for promoting the ends of justice and not for defeating, them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued." { Emphasis supplied ) It was further stated : "Even defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none ... It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. 6. In Maitreyee Banerjee vs. Prabir Kumar Mukherjee, AIR 1982 SC 17 the Supreme Court restored the order of the District Judge allowing amendment of the pleadings as it was satisfied that "'this was not a« case where the amendment sought was clearly barred by limitation so as to cause an irreparable injury to the respondent". 7. In Haridas Aildas Tbadani vs. Godrej Rustom Kerraani, (1984) 1 SCC 668 , the Supreme Court referred to its earlier decision in P. H. Patil, supra, and observed : "It is well settled that the Court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side." Referring to the scope and ambit of the revisional power of the High Court in such matters, it was held : '' ... a revisional Court ought not to lightly interfere with discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances." 8. From the aforesaid decisions of the Supreme Court, it is clear that an amendment should always be allowed if it is necessary for the purpose of determining the real questions in controversy between the parties and if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs. The only exception is where the amendment would take away from a defendant a legal right which has accrued to him by lapse of time. Even amendments modifying the original cause of action or adding another may be allowed if the entire subject-matter of the suit is not altered. The only exception is where the amendment would take away from a defendant a legal right which has accrued to him by lapse of time. Even amendments modifying the original cause of action or adding another may be allowed if the entire subject-matter of the suit is not altered. Introduction of a new case is also no ground for refusing to allow amendment so long as the defendant has the opportunity of meeting a new case by amendment of the written statement and by leading evidence in support of his defence. Avoidance of multiplicity of suits is also one of the relevant considerations. 9. Applying the principles stated above to the facts of the instant case, 1 find that the learned trial Court rightly allowed the amendment. It is neither a case where the amendment would result in serious injustice to the defendant nor is there any question of any valuable right of limitation having accrued to the defendant being taken away by the proposed amendment. The learned trial Court, in my opinion, in the circumstances of the case exercised sound discretion in allowing the amendment. I do not find any cogent reason to interfere with the said decision. 10. This revision petition is, therefore, rejected. Send down the records forthwith.