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1998 DIGILAW 445 (RAJ)

Om Prakash v. Vijai Singh

1998-03-27

P.C.JAIN

body1998
JUDGMENT 1. - This is a revision petition of the plaintiff filed against the order of the learned Civil Judge (Jr. Div.), Nagour dated 17.1.1998 whereby the learned Civil Judge dismissed the application filed by the plaintiff-petitioner under Order 6 Rule 17 CPC. 2. The plaintiff-petitioner filed a suit under Section 6 of the Specific Relief Act, 1963 (for short 'the Act') with the allegations that he is the owner of the suit house described in paras 1 & 2 of the plaint. After construction he has been in the possession of the above house for the last three years. The plaintiff went to Makrana in order to attend his business: Mohanlal came there and informed him that some persons have taken illegal possession of his house. Thereupon the plaintiff came to Nagaur on 20.1.1985 and saw, the defendant in illegal possession of his house. The plaintiff asked him to vacate their possession. The plaintiff also showed his title deed in respect of the above house to the defendant but the latter instead of vacating the illegal possession started to quarrel with him. The plaintiff, therefore, lodged a report at Police Station, Nagaur on 21.1.1985. Thereupon the Police registered a case under Section 453 IPC and after investigation also filed a challan. The defendant resisted the suit on the ground that the above house did not belong to the plaintiff and they also did not commit any trespass and occupied the house of the plaintiff forcibly. 3. On the pleadings of the parties, the learned trial Court framed the following issues : (i) Whether the plaintiff was in possession of the house described in paras 1 & 2 of the plaint up to January, 1985. (ii) Whether the defendant forcibly occupied the house of the plaintiff in the month of January, 1985. (iii) Relief. 4. It may be stated that the suit was filed on 12.4.1985 and is still pending. 5. The plaintiff moved an application under Order 6 Rule 17 CPC on the ground that the present suit was filed admittedly under Section 6 of the Act. However, both the parties have led evidence regarding title and the trial of the case was not conducted summarily but like a regular suit filed under Section 5 of the Act. 5. The plaintiff moved an application under Order 6 Rule 17 CPC on the ground that the present suit was filed admittedly under Section 6 of the Act. However, both the parties have led evidence regarding title and the trial of the case was not conducted summarily but like a regular suit filed under Section 5 of the Act. The plaintiff, therefore, think it proper that since both the parties have led complete evidence regarding title and possession of the suit property and the trial was not confined to the limit prescribed by Section 6 of the Act, it would be proper that the suit may be allowed to be amended so as to include the averments regarding title etc. in the suit. The plaintiff suggested the intended amendments in the pleading. The application was stoutly resisted by the defendant on the ground that the plaintiff is guilty of latches. If the suit,could not be disposed of up till now, the plaintiff is normally guilty for the same. The defendant denied that he led any evidence regarding title. If the plaintiff is allowed the proposed amendments in his pleading, great prejudice will be caused to the defendant and the suit under Section 6 of the Act will be converted into a regular suit under Section 5 of the Act. The whole nature of the suit and the cause of action would be changed which is not warranted by law. 6. The learned Civil Judge, after hearing both the parties, did not accede to the request made by the plaintiff to allow the proposed amendments; He was of opinion that by the proposed amendments the whole nature of the suit will be changed and would cause prejudice to the defendant. He, therefore, dismissed the above application. 7. I have heard learned counsel for the petitioner. 8. Learned counsel for the petitioner has submitted that initially the plaintiff filed the above suit under Section 6 of the Act and was confident that he would get the relief within reasonable time. However, the suit has not been disposed of so far because both the parties did not follow the summary procedure for such a suit under Section 6 of the Act but led exhaustive evidence in respect of title also. In other words, both the parties proceeded as if the suit was filed under Section 5 of the Act. However, the suit has not been disposed of so far because both the parties did not follow the summary procedure for such a suit under Section 6 of the Act but led exhaustive evidence in respect of title also. In other words, both the parties proceeded as if the suit was filed under Section 5 of the Act. In this connection he also led me through the statements of the witnesses examined in the trial Court. He has placed reliance on Nirmalchand v. Ganesh Prasad, AIR 1979 All. 54 , Harsahai & Ors. v. Chothmal & Ors., 1991 (1) RLR 691 and Nanda Moharana v. Laxman Moharana & Ors., AIR 1973 Orissa 42 . 9. I have considered the submissions made by the learned counsel for the petitioner. The argument in substance of the learned counsel for the petitioner is that the suit which was admittedly filed under Section 6 of the Act may be allowed to be converted into a regular suit under Section 5 of the Act. It may be stated that Section 6 of the Act was incorporated in the Act with a view to provide summary, cheap and useful remedy to a person dispossessed of immovable property, otherwise then in due course of law. Obviously the avowed object is to discourage people from taking the law in their hands, however, good their title maybe. Hence in a suit under Section 6 of the Act, the plaintiff is only required to aver his previous possession and dispossession by the defendant otherwise then in the due course of law within six months from the suit. The answer to the submissions made by the learned counsel depends upon the question whether Section 5 and Section 6 of the Act provide for alternate remedies and are mutually exclusive. The Supreme Curt in Naiyer Service Society v. K.C. Alexendra, AIR 1968 SC 1165 held that Section 8 and Section 9 (now Section 5 and Section 6) of the Act are not mutually exclusive. Section 8 (now Section 4) of the Act does not limit the kinds of the suit but only lay down that the process laid down in Civil Procedure Code must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of six months. Section 8 (now Section 4) of the Act does not limit the kinds of the suit but only lay down that the process laid down in Civil Procedure Code must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of six months. If Section 9 (now Section 5) of the Act is utilised, the plaintiff need not to prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant and if he, so does the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under the above Section but that does not bar a suit on the prior possession within 12 years and title need not be proved unless the defendant can prove one. 10. In Nrnula Mnltarana's case, the clatter was entirely different. In that case it was held that the plaintiff.on the facts pleaded would have asked for the relief which he wanted to ask by way of amendments from the very beginning. In this case it is not so because the plaintiff could not have asked for this relief in the beginning. It appears that the suit which was likely to be disposed of within reasonable time has not been decided and that has created complicated situation for the plaintiff. It is a settled law that the Courts normally adopt a liberal view while dealing with a matter falling under Order 6 Rule 17 CPC and the Court is duty bound to allow amendment of pleading when it is necessary for the purpose of determining the real question in controversy in the suit. This approach is necessary in order to attain the goal of imparting substantial justice to the parties. The main consideration which is normally kept in mind while dealing with a matter of amendment is the advancement of the interest of substantial justice and the avoidance of multiplicity of litigation. It is equally true that a party is not allowed by an amendment to set-up a new case or a new cause of action. 11. The main consideration which is normally kept in mind while dealing with a matter of amendment is the advancement of the interest of substantial justice and the avoidance of multiplicity of litigation. It is equally true that a party is not allowed by an amendment to set-up a new case or a new cause of action. 11. In the instant case, as has already been stated that the plaintiff cannot be allowed to produce the proposed amendments because by doing so, the foundation of the suit will be changed and a distinct cause of action would arise. While meeting the case of the plaintiff, the defendant was not supposed to have led any evidence regarding title and indeed the defendant was not supposed to do so because he was contesting a suit filed under Section 6 only of the Act. In a regular suit like a suit filed under Section 5 of the Act, regular investigation regarding title and possession is made. Order 6 Rule 17 interdict an amendment of such a nature which would entirely change the nature of case and cause of action. 12. For the above revision, the impugned order does not require any interference. 13. The revision petition has got no force and the same is hereby dismissed.Revision dismissed. *******