J. C. RUDRASHARMA v. H. K. SUBRAMANYAM — 1995 DIGILAW 571 (KAR)

H. N. TILHARI, J. ( 1 ) THESE three revisions arise out of common order passed by the additional city civil judge, Bangalore, on 14th july, 1995, on applications moved by the plaintiff in o. s. nos. 958, 2993 of 1984 and 3655 of 1985, rejecting the applications for amendment under order 6, Rule 17 of the Code of Civil Procedure read with Section 151 and are being disposed of by one common judgment and order making c. r. p. No. 2916 of 1995 as leading case. ( 2 ) THE brief facts of the case are that in the year 1984, the plaintiff-revisionist filed the two suits one after the other. In those suits, the plaintiff moved the above applications for amendment seeking the permission to take the additional relief for decree of declaration of title in his favour declaring plaintiff to be the owner of the suit schedule property which the trial court dismissed on the ground of delay and taking the view that relief for declaration of title was being sought after the expiry of the period of limitation, so it cannot be granted. Feeling aggrieved from the judgment and order of the trial court, the revisionist has filed these three revisions which are being connected and being disposed of by this one common order. ( 3 ) THE learned counsel for the revisionist Sri ananda shetty, submitted before me that the court below illegally refused to exercise the jurisdiction vested in it by refusing to allow the amendment and particularly, on the simple ground of delay. Further, Sri ananda shetty submitted that really, the court below acted illegally and contrary to the principles of law relating to amendment as laid down by the Supreme Court. That the court below had taken the view that amendment if allowed will not be going to change the nature of the suit nor will it introduce a new case than what was sought to be made out in the plaint by the plaintiff, yet it has rejected the application for amendment taking the view on the ground that 10 years have passed, since the filing of the suit, so, the permission to amend is not granted as the amendment of relief for declaration has been sought after the expiry of limitation. The learned counsel for the opposite parties Sri c. k. venkatesh, who appears for respondents in all the three cases has submitted that really, there have been laches on the part of the plaintiff, as the plaintiff allowed the time to pass on, but, did not seek amendment within the time prescribed for a suit of declaration. Lastly, Sri c. k. venkatesh, submitted that there is no good ground for interference in revision and so, the court has jurisdiction to allow the amendment. ( 4 ) I have applied my mind to the contentions made by the learned counsel for both the parties. The jurisdiction of this court in a civil revision is confined to jurisdictional error as mentioned in clauses-a, b, c of Section 115, of the code. Whereas, the law relating to amendment is well settled under order 6, Rule 17 of the Code of Civil Procedure, for short, 'code'. The Provisions of order 6, Rule 17 read as under: Rule 17. amendment of pleadings:the 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 purpose of determining the real questions in controversy between the parties. A reading of order 6, Rule 17 of the code indicates that a court may at any stage of the suit allow amendment of the proceedings, provided it is necessary for determination of the real questions involved in the suit. The Supreme Court has crystalized the law on the subject in many cases, in Vineet Kumar v Mangal Sain Wadhera , their lordships of the Supreme Court have been pleased to lay down as under:"normally amendment is not allowed if it changes the cause of action. But, it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation". But, it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation". ( 5 ) IN Pirgonda Hongonda Patil v Kalgonda Shidgonda Patil and others, it has been laid down as a principle of law that all amendments have to be allowed which are essentially necessary for the purposes of final adjudication of the points involved in the cases and that they can be allowed at any stage of the suit provided, the nature of the amendment sought is not working injustice to the other side and further (b) that it is necessary for the purpose of determining the real questions in controversy between the parties. Further, their lordships laid down that amendments should be refused only where the other party cannot be placed in same position, as if the pleading had been originally correct, but, amendment would cause him an injury which could not be compensated in costs. The ultimate test to be applied according to their lordships of the Supreme Court is to see whether amendment can be allowed without injustice to the other side or not. The meaning of expression 'cause of action' has been considered in the context of order 6. Rule 17 of the code in A. K. Gupta and Sons Ltd. V Damodar Valley Corporation , where, their lordships of the Supreme Court at page 98 observed as:"the expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in cooke u gill, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v Unicos Property Corporation Limited, and it seems to us to be the only possible view to take. Any other view would make the Rule futile". That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v Unicos Property Corporation Limited, and it seems to us to be the only possible view to take. Any other view would make the Rule futile". their lordships of the Supreme Court in damodar valley corporation's case, had been further pleased to lay down that it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendments will be allowed even after the expiry of the statutory period. Keeping these principles in view, i proceed to examine the question, if court below illegally refused to exercise the jurisdiction under order 6, Rule 17 of the code, because even discretion jurisdiction has to be exercised judiciously and keeping pace with the well settled principle of law regarding the said power. ( 6 ) IN the present case, there is no doubt it has also been found by the trial court itself that the amendment will not introduce a new case. The observations of the trial court read:"now, the plaintiff wants to introduce a relief of declaration. Of course, it will not introduce a new case than what was sought to be made out by the plaintiff in the plaint". the trial court's observation per se shows that no new case was sought to be made. If I may add to it, that really, when the plaintiff asserted title in the plaint in various paragraphs, while, making the allegations that he is the owner of the property in dispute and on that basis thereof, he claimed reliefs in the suit under the relief clause, no doubt, relief of declaration was not sought. The plaintiff as a matter of precaution, wanted to add the new relief in the relief clause seeking declaration of title, due to the defendants in his written statement having denied the plaintiff's title, as in some of the earlier cases, it has been held that in a suit for injunction, plaintiff must also claim declaratory relief. The plaintiff as a matter of precaution, wanted to add the new relief in the relief clause seeking declaration of title, due to the defendants in his written statement having denied the plaintiff's title, as in some of the earlier cases, it has been held that in a suit for injunction, plaintiff must also claim declaratory relief. But later on, by this court as well as by Supreme Court, it has been held that in the suit for injunction, if the plaint contained the allegations relating to claim of title and there is a dispute which has to be decided regarding title on the basis of evidence, and then failure to make the claim of formal relief of declaration, would not adversely affect the maintainability of the suit. ( 7 ) IN the present case, the plaintiff as mentioned earlier, as also found by the court below, has never sought to introduce a new claim on the basis of new facts and ideas. Really, it is a case in which claim of title has been made by the plaintiff in the body of the plaint and that it is admitted position, that in the plaint, the plaintiff has claimed title as owner, as also found by the trial court as mentioned above, that addition of relief is not going to make out a new case. When the amendment is not going to have effect of introducing a new case and a cause of action, but, it has additional approach to the same facts in the matter of claiming relief, even if it be taken that the claim of relief is being sought to be made and added after the expiry of limitation, in view of the decision of the Supreme Court in the damodar valley corporation's case quoted above that amendment will be allowed in such circumstances, even after the expiry of the statutory period of limitation, particularly, for the reason that a party is not strictly entitled to rely on a statute of limitations, because when what is sought to be brought by amendment can be said to be in substance already pleaded. In the present case, I have mentioned earlier, that title had already been claimed in 1985, when the suit was filed. In the present case, I have mentioned earlier, that title had already been claimed in 1985, when the suit was filed. Therefore, the addition of a relief by amendment could not be said to cause any injury to the right of the defendant, because no right had accrued in favour of the defendant by plaintiffs omission to mention the formal relief for declaration in the reliefs clause and therefore, it cannot be said that, that amendment is likely to cause any injury to the other side or to any right of the defendant. The injury is caused to defendant it cannot be said if at all any defendant options cannot said to be one which cannot be compensated in terms of money. In my opinion, the courts below acted illegally and in contrary to the well settled principle of law as laid down by their lordships of the Supreme Court in the above mentioned case damodar valley corporation's supra, to the effect that if amendment tantamounts to an additional approach on the basis of the pleadings already stated in the plaint, thereby, the title having been asserted, the statutes of limitations will not come into play. On behalf of the opposite parties, reliance was placed on a decision of this court in Payappa Jakkappa Waghe v Jayapal Shripal Badanekai. I have gone through that judgment, that as there can be no dispute so far as the bare proposition of law is concerned, amendment of the pleading should be allowed, unless it is found that exercise of such discretion will lead to prejudice the other side, thereby, defeating the right which has already accrued to the party by lapse of time, but, so far as the merits of the present case are concerned on facts, the present case stands on different footing from the case of payappa jakkappa waghe, supra. In the case of payappa jakkappa waghe, it has been clearly observed that on the date of seeking amendment, plaintiffs had already lost their prescriptive right of easement over the stretch of land abcdef in view of fifth paragraph of Section 15 of the easement act. In the case of payappa jakkappa waghe, it has been clearly observed that on the date of seeking amendment, plaintiffs had already lost their prescriptive right of easement over the stretch of land abcdef in view of fifth paragraph of Section 15 of the easement act. In the present case, plaintiff had been claiming his title from 1985, when the suit had been filed and no right had accrued to the defendant on the basis of any period, so, there is no question of any prejudice being caused by the reason of amendment being allowed. Really, the trial court ought to have exercised its jurisdiction under order 6, Rule 17 of the code and allowed the amendment. But, the court below has made wrong application of the principle of law and really, the basis of misapplication of the basic principle of law, illegally refused to exercise jurisdiction vested under order 6, Rule 16 of the Code of Civil Procedure. Thus considered in my opinion, these three revisions deserve to be allowed. In the result, these revision petitions are allowed and the trial court is directed to plaintiff-revisionist to amend the plaint by incorporating the amendment therein subject to payment of cost of Rs. 575/- in each case, on the plaintiff-applicant paying or depositing the costs and producing the receipts. Let the cost of revision applications be borne by parties. Let the copy of this order be placed in other two revisions and original one in the leading revision No. 2916 of 1995. --- *** --- .