SRINIVAS RAO v. DATTATRAYARAO — 1998 DIGILAW 293 (KAR)

H. N. TILHARI, J. ( 1 ) THIS revision petition is directed against the judgment and order dated 27th september, 1993, whereby the learned munsiff, bidar has allowed the application under order vi, Rule 17 of the code of civil procedure (la. No. V) moved by defendant 3 in original suit No. 80 of 1987. ( 2 ) THE facts of the case in the nutshell are that the suit has been filed for declaration by the plaintiff-revisionist to the effect that the plaintiffs and defendants 1 and 2 have been the joint owners of the properties. The plaintiffs claim for declaration that plaintiffs along with defendants 1 and 2 in the suit are the joint owners in possession of land in dispute as mentioned in the relief clause. They further sought declaration that the registered sale deed bearing No. 402 of 1987 dated 24-4-1987, executed by the defendants 1 and 2. In favour of defendant 3 is ineffective, inoperative against the rights of the plaintiffs. He also sought perpetual injunction against defendants 1 to 3 from causing any obstruction and interference in the plaintiffs lawful possession and enjoyment of the suit property. Plaintiffs alleged that the suit property belonged to them and defendants 1 and 2 as joint members of the hindu undivided family and chat the suit property has never been divided between plaintiffs and defendants 1 and 2 as specified. It was asserted that defendants 1 and 2 property being joint had no right to sell the property to defendant 3 and so sale deed was illegal and no rights did pass to defendant 3, on the basis of the impugned sale deed, ( 3 ) DEFENDANTS filed the written statement denying the plaintiffs case. They have further taken the plea that defendants 1 and 2 being the owners and possessors absolutely of half portion of the entire property in the suit and have been competent to lawfully and rightly sell the said land in sy. No. 286 to the extent of their share in favour of defendant 3 and sale having been made for consideration of Rs. 7,000/-, the sale deed is genuine and valid and does not per se show that the suit property has not been divided or shares of defendants 1 and 2 and the plaintiffs have not been specified. No. 286 to the extent of their share in favour of defendant 3 and sale having been made for consideration of Rs. 7,000/-, the sale deed is genuine and valid and does not per se show that the suit property has not been divided or shares of defendants 1 and 2 and the plaintiffs have not been specified. It was also asserted that defendants 1 and 2 have delivered possession of the land under sale deed. The defendants claim to be in actual possession of the suit property. Defendant 3 also pleaded that plaintiffs case that the property was joint property is false and without any basis. Really defendants 1 and 2 have been in separate possession of their respective shares for several years and since after sale deed defendant 3 is in actual possession. Defendant 3 moved an application for amendment i. e. , i. a. No. 5, in which he has asserted that even if for a moment if it is found that the property is joint and the sale deed is entered to the extent of the share of defendants 1 and 2 who executed it, defendant 3 prayed for the partition of the land, which is coming to the share of defendants 1 and 2 being separated and its possession be given to defendant 3. Defendant 3 also paid the court fee for the counter-claim. Defendant 3 wanted after paragraph 10, new paragraphs 10 (a), (b), (c) and (d) be added, which read as under: (A) that this deponent further submits that if the hon'ble court comes to the conclusion that the plaintiffs and defendants 1 and 2 are the joint family members and that the land sy. No. 286/1 is the joint property in that event also this deponent is entitled for partition and separate possession to the extent of the share of defendants 1 and 2 sold through the registered sale deed mentioned supra. (B) that this defendant requested the plaintiffs lastly on 1-3-1993 to effect the partition of the land sy. No. 286/1 measuring 5 acres 27 guntas of village bagdal and to accept the possession of this defendant over the suit land in the capacity of the purchaser of undivided share of defendants 1 and 2 as his separate possession that the plaintiffs refused to do. No. 286/1 measuring 5 acres 27 guntas of village bagdal and to accept the possession of this defendant over the suit land in the capacity of the purchaser of undivided share of defendants 1 and 2 as his separate possession that the plaintiffs refused to do. The denial of the plaintiffs has given rise to the cause of action to this defendant and hence this counter-claim is filed, within time, which is fit to be accepted. (C) that as per law this defendant is legally entitled to get this relief from the Hon'ble court and the plaintiffs are bound to partition the suit land. (D) that the counter-claim of this defendant is to be treated as plaint and this Hon'ble court has got powers to grant the relief of partition in the interest of Justice in this suit only so that multiplicity of suits may be avoided. (E) that this defendant has paid the required court fees of rs. 15-00 for the relief of partition as required by law. ( 4 ) THIS amendment application has been allowed by the trial court. Feeling aggrieved from that order the plaintiff has come up in revision. ( 5 ) I have heard Sri brijesh chandra guru holding brief for Sri s. r. shivaprakash for the petitioner and Sri chandrashekar patil holding brief for Sri manikappa patil for the respondents. ( 6 ) LEARNED counsel for the revisionist-applicant contended that amendment had the effect of allowing the defendants new plea and to make out a new case and so it should not have been allowed, particularly the plea which has not been taken in the original written statement and which had the tendency to cause prejudice to the plaintiffs right as it is being allowed at a belated stage and learned counsel submitted as such the court below committed jurisdictional error as no amendment is to be allowed which has tendency of introducing a new case or causing material prejudice which cannot be compensated in terms of money. ( 7 ) THESE contentions of the petitioner's counsel have been hotly contested on behalf of the respondents. Jurisdiction of this court is confined to jurisdictional error. Power of amendment is vested in civil court. It has been conferred under order vi, Rule 17 of the Civil Procedure Code read with sections 151 and 153 of the code. ( 7 ) THESE contentions of the petitioner's counsel have been hotly contested on behalf of the respondents. Jurisdiction of this court is confined to jurisdictional error. Power of amendment is vested in civil court. It has been conferred under order vi, Rule 17 of the Civil Procedure Code read with sections 151 and 153 of the code. ( 8 ) I have applied my mind to the contentions of the learned counsels for the parties. Order vi, Rule 17 of the Code of Civil Procedure provides that. "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". ( 9 ) A perusal of the language of order vi, Rule 17 per se reveals that amendment of the pleadings can be allowed at any stage. It is also one of the trite principles of law of amendment that all amendments have to be allowed which have not the tendency of making of a new case and have not got tendency of causing irreparable loss or injury to the other party. Reference in this regard may be made to the decision of the supreme court in the case of pirgonda hongonda patil v kalgonda sidhgonda patil and others, and to the decision of their lordships of the privy council in the case of charan das v amir khan , wherein the principle of law has been laid down to the following effect:"all amendments ought to be allowed which satisfy the two conditions (a) of 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. 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 depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?" ( 10 ) WHEN the amendment can be said to make out a case and what is the meaning of a new case as well has been explained by their lordships of the Supreme Court in the case of a. k. gupta and sons limited v damodar valley corporation. Their lordships observed:"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". The expression for the present purpose only means, a new claim made on a new basis constituted by new facts. The words "new case" have been understood to mean "new set of ideas". Thus no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time". in the earlier part of the judgment in paragraph 7, their lordships observed as under:"but 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 amendment will be allowed even after the expiry of the statutory period of limitation". ( 11 ) KEEPING these principles in view, in my opinion, the amendment that has been sought cannot be said to introduce any new cause of action. The amendment can only be said to be an additional approach to the same facts. ( 11 ) KEEPING these principles in view, in my opinion, the amendment that has been sought cannot be said to introduce any new cause of action. The amendment can only be said to be an additional approach to the same facts. As alleged in the written statement, it is in the alternative or different or additional approach, in the sense that the defendant says that even if it is found that the property is joint of plaintiffs and defendants 1 and 2 and the said defendants have transferred the property by the sale deed in question in favour of defendant 3 and even plaintiffs claim that it should be declared that sale deed does not bind the share of the plaintiffs, to give a final touch to entire controversy between the parties, which may continue till there is no partition because defendant 3 is a stranger to the family, the alternative claim made on the basis of those facts that if property is found to be joint and as defendants 1 and 2 had a right to sell, their share i. e. , of defendants 1 and 2 in the property which defendants 1 and 2 have sold in favour of defendant 3, be separated and its possession be given separate to defendant 3. Defendant 3 put the counter-claim and paid the court fee. It cannot be said that the amendment was in any manner not necessary to give the final determination of the controversy. It cannot be said to be making out a new case. It is at the most an additional approach. ( 12 ) LEARNED counsel for the petitioner contended that after the written statement had been filed, the defendants could not be permitted to file the counter-claim. I think there is no substance in the contention and this point has already been answered by the Supreme Court in the case of mahendra kumar and another v state of Madhya Pradesh and others, wherein their lordships of the Supreme Court have been pleased to observe in paragraph 15 as under:"the next point that remains to be considered is whether rule 6-a (l) of order viii, Civil Procedure Code, bars the filing of a counter-claim after the filing of the written statement. This point need not detain us long, for Rule 6-a (l) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6-a (1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not". ( 13 ) IN this case it appears to have accrued before the filing of the written statement. But plaintiff alleged that the property is joint of plaintiffs and defendants 1 and 2. Then the defendants had taken the plea even if it is found that the plea is correct, but the sale deed which has been executed by defendants 1 and 2, at least to the extent of their share which binds on the said defendants and their share may be separated. The counter-claim by amendment application had been made for being permitted to raise counter-claim on 23-9-1993. In my opinion, allowing of or setting up of the counter-claim has not the effect of causing any prejudice to the revisionist- applicant. Learned counsel contended anyway the delay has been compensated by awarding of compensation or damages. Thus considered in my opinion, the revision is without substance and merits as such revision is hereby dismissed. The order allowing the amendment is maintained and affirmed. Cost to be borne by the parties. --- *** --- .