Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 1322 (PNJ)

Tarlochan Singh v. Bhagwant Singh

2002-11-27

G.S.SINGHVI

body2002
JUDGMENT G.S. Singhvi, J. - This revision is directed against order dated 20.8.1994 passed by senior Sub-Judge, Sangrur dismissing the application filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short, CPC) for amendment of the plaint. 2. A perusal of the record shows that the petitioner filed suit for permanent injunction restraining the defendants/non-petitioners, who are none else than this brother and mother from interfering in his peaceful possession over the house/haveli situated in Krishna Basti, Sangrur by alleging that he had purchased the said house from Dalip Singh son of Santa Singh resident of Civil Lines, Patiala, who was general attorney of Gurbax Singh son of Gajjan Singh resident of Sangrur and that the defendants/non-petitioners were trying to forcibly take possession of the house in his absence. He also filed an application under Order 39 Rules 1 and 2 of the CPC. 3. In their written statements, the defendants/non-petitioners pleaded that they were owner in possession of the house in question and the plaintiff- petitioner had no claim over it and that the suit was filed with a mala fide intention to grab the property. The defendants/non-petitioners also controverted the averments contained in the application for temporary injunction. 4. After hearing the Advocates representing the parties and considering their respective pleadings, the trial Court passed an order of injunction. 5. During the pendency of the suit, the petitioner filed an application under Order 6 Rule 17 of the CPC for leave to amend the plaint by stating that after passing of the injunction order dated 5.3.1994, defendant No. 2 - Smt. Narender Kaur had forcibly entered the house by breaking open the locks. He averred that Smt. Narender Kaur has got no right or interest in the suit property and the previous suit filed by Bhagwant Singh against him for grant of injunction had ended in a compromise in February, 1994 and in terms of the compromise, the defendants vacated the house and shifted to a rental premises opposite Mumbarik Mahal, Outside Dhuri Gate, Sangrur. 6. The defendants/non-petitioners contested the application for amendment by asserting that the plaintiff had not approached the Court with clean hands. They also reiterated the plea raised in the written statements that the suit property belonged to them and not the plaintiff. 7. 6. The defendants/non-petitioners contested the application for amendment by asserting that the plaintiff had not approached the Court with clean hands. They also reiterated the plea raised in the written statements that the suit property belonged to them and not the plaintiff. 7. The learned Senior Sub Judge, Sangrur dismissed the application for amendment by observing that the averment made with reference to the previous litigation did not have any relevance to the subject-matter of the suit and the story sought to be incorporated in the plaint appears to be mala fide. The learned Senior Sub Judge further observed that in the absence of prayer for possession, no effective relief can be given to the plaintiff and he is entitled to file another suit for mandatory injunction or for seeking possession of the suit property from the defendants. 8. I have heard learned counsel for the petitioner and perused the record. I have also gone through the copies of the plaint filed by the petitioner, written statements filed by the non-petitioners, amendment application and its reply which Shri Jasbir Rattan had produced during the course of arguments. In my opinion, the impugned order is liable to be set aside because the learned Senior Sub Judge committed a material irregularity in the exercise of his jurisdiction to decide the application for amendment filed by the petitioner and if the same is maintained, failure of justice would be occasioned. The purpose and object of Order 6 Rule 17 of the CPC is to allow either party to alter or amend its pleadings in such manner and on such terms as may be laid down by the Court. The power to allow amendment of pleadings is wide and can be exercised at any stage of the proceedings keeping in view the larger interest of justice. 9. In B.K.N. Pillai v. P. Pillai & Anr., JT 1999(10) SC 61, the Supreme Court considered the scope of Order 6 Rule 17 of the CPC and laid down the following proposition :- "The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment can not be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which can not be compensated by costs. No amendment should be a allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement." 10. The above proposition was reiterated and followed in Ragu Thilak D. John v. S. Rayappan and others, 2001(2) SCC 472. The above proposition was reiterated and followed in Ragu Thilak D. John v. S. Rayappan and others, 2001(2) SCC 472. The facts of that case were that the appellant had filed suit for permanent injunction restraining the respondents, their agents and subordinates from demolishing the compound wall in the suit property. During the pendency of the suit, the respondents-defendants were alleged to have entered the appellants house unauthorisedly and demolished the compound wall on the north, east and west side. They were also alleged to have damaged the gate at the entrance. In view of these developments, the appellant filed application under Order 6 Rule 17 of the CPC for amendment of the plaint. The trial court rejected his prayer and the High Court dismissed the revision petition mainly on the ground that amendment, if allowed, would result in entertaining a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed as it would change the nature of the suit. The plea of limitation raised by the respondents-defendants was also accepted. The Supreme Court allowed the appeal and held as under :- "The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for." 11. In Dondapati Narayana Reddy v. Duggireddy Venkatanarayana Reddy and others, 2001(8) SCC 115, the Supreme Court allowed the appeal filed against the order of the High Court vide which revision filed against the order of the trial court declining the prayer for amendment was dismissed and observed as under :- "Rules governing pleadings and leading of evidence have been incorporated to advance the interests of justice and to avoid multiplicity of litigation. If the claim of the plaintiff is based upon the will executed by his grandfather the defendant-appellant has a right to seek the amendment of his written statement incorporating the plea sought to be introduced by way of proposed amendment. If the claim of the plaintiff is based upon the will executed by his grandfather the defendant-appellant has a right to seek the amendment of his written statement incorporating the plea sought to be introduced by way of proposed amendment. Such a prayer cannot be denied on hypertechnical grounds. The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and results in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time. Amendment may also be refused, if such a prayer made separately, is shown to be barred by time. Neither the trial court nor the High Court has found the existence of any of the circumstances justifying the rejection of the prayer for amendment of the written statement. Whether or not the amendment is allowed, the trial Court is otherwise obliged to decide the validity of the disputed will which is the basis of the suit filed by the plaintiff. The courts below were not justified in rejecting the prayer of the defendant seeking amendment of his written statement." 12. By applying the ratio of the above noted decision to the facts of the case in hand, I hold that the learned trial court committed a serious illegality by declining the petitioners prayer for amendment of the plaint. Whether or not the petitioner would ultimately succeed in proving his plea regarding dispossession during the pendency of the suit is something which could not have weighed in the mind of the trial Court while considering the prayer for amendment. The facts relating to the previous litigation between Bhagwant Singh from whom the petitioner is said to have purchased the property could not be brushed aside as wholly irrelevant to the subject-matter of the suit. In my view, learned trial Court ought to have accepted the petitioners prayer for amendment, more-so because no prejudice is going to be caused to the defendant/non-petitioners by granting leave to the petitioner to amend the plaint. In view of the above, the petition is allowed. The impugned order is set aside and leave is granted to the petitioner to amend the plaint. The trial Court shall now proceed with the case in accordance with law. Petition allowed.