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2001 DIGILAW 400 (HP)

SHARMA v. STATE OF H. P.

2001-12-19

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J. (Oral) :- By this petition under Order 6 Rule 17 of the Code of Civil Procedure, the contesting defendants pray for amendment of their written statement. According to the defendants, due to oversight and bonafide mistake, they could not plead certain material facts which are relevant and necessary for the just and proper decision of the suit. 2. Plaintiff has filed a suit for recovery of Rs.15 lacs on account of damages, caused to his house, due to the excavation of the land, above his house, by the defendants for the purpose of construction of the building, "Nirman Bhawan", for the H.P. Public Works Department. Case of the plaintiff as pleaded in the plaint is. that the plaintiff is owner in possession of the land and residential house, named and styled "Fair Villa" which is located opposite to Victoria Place, Nigam Vihar, Shimla. The defendant-State is the owner of the land just beneath of the property of the plaintiff. Boundaries of the defendant touched Western side of the property of the plaintiff which is located above the circular road. The defendant-State started excavation work through his contractor defendant No.4 for the construction of Nirman Bhawan. This excavation work, according to the plaintiff, was done without taking into consideration the basic engineering standards or soil strata. The defendants over looked the damage, likely to be caused, by the excavation work, to the property of the plaintiff. Initially, some cracks appears in the retaining wall of the plaintiffs house which were brought to the notice of the officers of the defendant-State of Public Works Department but no remedial measures were taken to obviate the damage caused to the property of the plaintiff. It is the case of plaintiff that due to acts of negligence of the defendants in excavation of the land, for the purpose of construction of Nirman Bhawan, foundation of the house of the plaintiff has been disturbed resulting into cracks in the wall. The floor basement has sunk. The retaining wall has collapsed and big cracks have appeared in the ground floor. The building resultantly has become dangerous and unfit for human habitation. Inspite of notices issued by the plaintiff to the defendants, remedial measures were not taken. 3. The suit was resisted by the defendants on various grounds. The floor basement has sunk. The retaining wall has collapsed and big cracks have appeared in the ground floor. The building resultantly has become dangerous and unfit for human habitation. Inspite of notices issued by the plaintiff to the defendants, remedial measures were not taken. 3. The suit was resisted by the defendants on various grounds. The defendants took up a plea that the construction is being raised in accordance with law and rules. It is denied that any loss or damage has been caused to the plaintiff due to the excavation work executed by the defendants. According to the defendants, for precautionary measure, they raised a retaining wall to avoid any loss to the properties in the locality. 4. After the issues were settled and the plaintiff has led his evidence, the defendants have filed this petition for amendment of the written statement. By this amendment, the defendant-State wants to raise a plea that the suit is not maintainable as the plaintiff is guilty of concealing material facts inasmuch as the building of the plaintiff has out lived its utility since long and the plaintiff is trying to capitalise on the construction of the building being raised by the defendants for public purpose, Defendants seek leave to include the plea that the suit is bad for non compliance of the provision of Section 80 of the Code of Civil Procedure in the letter and spirit. 5. Para 2 is sought to be amended to give description of the proposed construction and distance between the proposed construction of the defendants and building of the plaintiff. 6. Para 3 of the written statement is sought to be amended to add that the proposed construction was started after examining various technical aspects involved in the construction of the building including testing of soil and strata and that as the defendant is a Government Department, technically expert in the field of construction and building, therefore, the assertion of the plaintiff that the constriction is sought to be raised without looking to the basic engineering norms is misconceived. In para 5 of the written statement a plea sought to be added that the building of the plaintiff has already outlived its utility much before the defendants stared construction of the proposed Nirman Bhawan. In para 5 of the written statement a plea sought to be added that the building of the plaintiff has already outlived its utility much before the defendants stared construction of the proposed Nirman Bhawan. Suit of the plaintiff is misconceived, false and motivated with a view to reconstruct his own building at the cost of public exchequer by taking a false plea qua the damage caused by the excavation work done by the defendants. 7. The proposed amendments are opposed by the plaintiff. It is pleaded defendants in the Department of the Public Works have hierarchy of the Engineers from Junior Engineers to the Engineer-in-Chief and had also best of legal advice and, therefore they could have taken all the pleas which were available to them while filing the written statement. The factual position was available with the defendants when the written statement was filed and the proposed amendments in the written statement are not bonafide. The amendment should not be allowed simply because the defendants did not include the plea now sought to be raised by oversight or omission.- 8. I have heard Mr. C.B. Singh, learned counsel for the non- applicant/plaintiff and Mr. J.S. Guleria, learned Law Officer for the applicant/defendants. 9. Mr. C.B. Singh, learned counsel for the plaintiff urges that a new case is sought to be introduced by way of amendments by the defendants by pleading that the building which was damaged due to the excavation work carried out by the defendants has outlived its utility which cannot be permitted. 10. It is now well settled that the amendment of the pleadings should normally be permitted unless such amendment is unjust and will cause prejudice to the opposite party which cannot be compensated by costs or deprive to the opposite side of a valuable right which has accrued to the other side by lapse of time. The amendment in certain circumstances may also be disallowed if it is shown to be barred by the period of limitation, when it is sought to be introduced. (See Dondapati Narayana Reddy v. Duggireddy Venkatanarayana Reddy & Ors. 2001 (5) Scale.) 11. Mr. C.B. Singh, learned counsel relying upon Mehar Dass v. Surjoo 1972 SLJ Himachal Pradesh-146), Surjeet Singh v. Kartar Singh & Anr. AIR 1988 Punjab and Haryana 53 and Inder Singh v. Chhaju Singh & Ors. (See Dondapati Narayana Reddy v. Duggireddy Venkatanarayana Reddy & Ors. 2001 (5) Scale.) 11. Mr. C.B. Singh, learned counsel relying upon Mehar Dass v. Surjoo 1972 SLJ Himachal Pradesh-146), Surjeet Singh v. Kartar Singh & Anr. AIR 1988 Punjab and Haryana 53 and Inder Singh v. Chhaju Singh & Ors. AIR 1972 Punjab & Haryana 255 submits that the amendment is being sought after the settlement of issues and after the plaintiff has led the evidence. If such amendment is allowed it will result in re-opening the entire case which is not permissible, particularly when serious prejudice will be caused to the plaintiff. 12. In Mehar Dass it was observed that the cardinal test for refusing or allowing the amendment is "real controversy". If it is found that the amendment sought is unrelated to the real controversy between the parties then such amendment should not be allowed. In the facts and circumstances of that case it was found that amendment sought was not necessary to determine the real controversy between the parties. 13. In Surjeet Singh the amendment was sought in the pleadings to withdraw the admission made by the party in the pleadings. It is in this context that it was held that such an amendment cannot be allowed. 14. In Inder Singh a suit was filed for the possession of half share of the property left by Haryana. The allegation was that Harnama died without leaving any heir of Class I under the Hindu Succession Act and in result, plaintiff and Chhaju Singh were entitled to inherit the estate in question. The suit was contested by the defendants. It was pleaded by the defendant that one Shyama was alive when Harnama died intestate and, therefore, the plaintiff and Chhajju Singh were not heirs to inherit the estate of Harnama. At the appellate stage, an application for amendment was moved by the defendant to plead in the written statement that Harnama died on 26.11.I960 and not on 30.5.1961, as alleged by the plaintiff. The amendment was allowed. A contention was raised that amendment ought not to have been allowed as it was raised at a belated stage and the amendment sought was found to have effect of withdrawal of clear admission made in the written statement. The amendment was allowed. A contention was raised that amendment ought not to have been allowed as it was raised at a belated stage and the amendment sought was found to have effect of withdrawal of clear admission made in the written statement. It is in this background that the learned Single Judge of Punjab and Haryana High Court observed that defendant would not be prejudiced if the amendment is disallowed as under Issue No.l framed by the trial Court it has to be decided as to when these two persons, namely, Harnama and Shyama, died. Though the trial Court had given decision but the first appellate court was still to apply its mind. The evidence was led by the parties on that particular issue and it the finding is given on that particular issue the question as to who out of the two died earlier, would automatically be decided. 15. So far present case is concerned, I am of the view that no serious prejudice would be caused to the plaintiff by the proposed amendment of the written statement. The proposed amendment of the written statement dose not introduces new case. The case of the defendants remain that no damage has been caused to the building of the plaintiff by excavation work done by them in the constriction of proposed Nirman Bhawan. 16. In result, I allow this application subject to the payment of Rs.3,000/-as costs. The costs shall be paid within four weeks from today. The amended written statement is already on record. Plaintiff shall file replication, if any, within four weeks. 17. The application stands disposed of.