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2003 DIGILAW 1874 (ALL)

KALOO SINGH v. APPER AAYUKT SAVITRI DEVI

2003-08-22

S.N.SHUKLA

body2003
RAJESH TANDON, J. Heard Sri Rajendra Dobhal for the revisionist and Sri N. C. Gupta, Standing Counsel for the respondent. 2. This revision has been filed against the order passed by the District Judge, Uttarkashi rejecting the application for amendment under Order VI, Rule 17 of the CPC vide order dated 22-5-1986 passed in original suit No. 9 of 1985 Keshwa Nand Puri v. State of U. P. through Collector Uttarkashi. 3. The brief facts giving rise to his revision are that two suits were filed, one being original suit No. 9 of 1985 Bachan Lal v. State of U. P. through Collector Uttarkashi. In both the suits the prayer was to the following effect: (a) A decree for perpetual injunction restraining the defendant from interfering with the possession, occupation and enjoyment of two muthi land granted to him forming part of plot No. 2112 in village Barahat, district Uttarkashi by the Deputy Commissioner incharge, Uttarkashi. (b) Costs of the suit and any other relief which the learned Court may deem fit in the interest of justice or to which the plaintiff is found entitled. 4. Earlier Civil Revision No. 103 of 2001 came up before me arising out of suit No. 9 of 1985 the present impugned order has been passed on 22-5-1986 whereas the earlier order was passed on 16-7-1984. According to the plaint averments the plaintiff applied for the lease of land in village Barahat district Uttarkashi under Government Grants Act for construction of house for residential purposes. 5. The plaintiff/applicant for amendment in the plaint, the same having been rejected by the learned District Judge vide his order dated 22-5-1996. The order has been challenged by filing the present revision under Section 115 of the Civil Procedure. 6. I have perused the pleadings of the parties. In my opinion, the present case is fully covered with Civil Revision No. 103 of 2001 where I have allowed the revision. The amendment has been allowed by allowing the revision. 7. Heard Sri Rajendra Dobhai for the revisionist and Sri N. C. Gupta, Standing Counsel for the respondent at great length and have perused the pleadings of both the parties, copy of the plaint, written statement and other material on record. 8. The amendment has been allowed by allowing the revision. 7. Heard Sri Rajendra Dobhai for the revisionist and Sri N. C. Gupta, Standing Counsel for the respondent at great length and have perused the pleadings of both the parties, copy of the plaint, written statement and other material on record. 8. Cause of action according to the plaintiff/appellant arose when the grant in question was made in his favour by incharge Deputy Commissioner, Uttarkashi and further when the Collector Uttarkashi cancelled the said grant. According to the plaintiff the same was without jurisdiction. 9. In paragraph 11 of the plaint it has been stated that a notice dated 19-8-1983 from the office of District Magistrate, Uttarkashi was served alleging that the grant made in his favour by SDM Bhatwari was not in accordance with law and was liable to be cancelled and as such show notice was issued as to how the grant should not be cancelled. In paragraph 27 the plaintiff claimed the following relief. "that, it is in the fitness of things that the order dated 16-7- 1984 passed by the District Magistrate/collector, Uttarkashi in Case No. 7 of 1982-83 be quashed. " 10. As will appear from the aforesaid paragraph as well as cause of action which according to the plaintiff was to the effect that the order dated 16-7-1984 passed by the District Magistrate, Uttarkashi in Case No. 7 of 1982-83 be quashed and in cause of action also, the plaintiff has pleaded that the District Magistrate has cancelled the grant without any authority of law, illegally, arbitrarily and inconsistently. The pleading with regard to cancellation of patta is already there in paragraphs 27 and 28 of the suit. 11. It appears that the relief which was sought by the plaintiff, was only with regard to the decree for perpetual injunction restraining the defendant from interfering in the possession, occupation and enjoyment of two muthi land granted to the plaintiff. Alongwith the plaint an application fro temporary injunction was also filed. 12. 11. It appears that the relief which was sought by the plaintiff, was only with regard to the decree for perpetual injunction restraining the defendant from interfering in the possession, occupation and enjoyment of two muthi land granted to the plaintiff. Alongwith the plaint an application fro temporary injunction was also filed. 12. During pendency of the suit an application was filed by the plaintiff in the year 1986 under Order VI, Rule 17 CPC stating therein that in paragraph 27 of the plaint he has already pleaded fro quashing for the order dated 16-7-1984 and as such the same may be deleted and in its place the following words may be inserted: "deserved to be declared void and in case the said order is allowed to remain in force then the defendant can cause injuries to the rights of the plaintiff would adversely effected, therefore, it is necessary to declare the said order be void. " Similarly, at the end of the paragraph 28 of the plaint the following amendment was sought: "and thereafter threatening the plaintiff to vacate the land and there is apprehension in the mind of the plaintiff that defendant may dispossess the plaintiff from suit land. " In paragraph 31 of the plaint amendment to the following effect was sought: That after the word "jurisdiction" and before the Court fee the following words may kindly be inserted: "for the relief of perpetual injunction and for declaration the suit valued at Rs. 5,000. " And after the words for injunction and before is being the word "may" kindly be inserted being the consequential relief of declaration. 13. The perusal of the plaint as well as the amendment application shows that the relief which was sought by the plaintiff was with regard to the decree for perpetual injunction and since there was already a pleading for quashing the order dated 16-7-1984 the present amendment will not change the nature of the proceedings. 14. From the perusal of the amendment which are sought to be incorporated it appoars that the plaintiff has already taken the plea that order dated 16-7-1984 passed by the District Magistrate/collected Uttarkashi be quashed, in other words since the quashing is not possible by the Civil Court and the suit can be brought only under the provisions of Specific Relief Act, therefore, the plaintiff has sought amendment for declaring the same to be void. In other words the plaintiff was already conscious of the fact that the order dated 16-7-1984 is null and void and only due to defective pleadings quash was mentioned instead to declaring to be void. 15. According to Sri Rajendra Dobhal, learned Counsel for the revisionist the amendments which are being sought to be incorporated will not change the nature of the suit in as much as the initial order by which the grant was cancelled is already there and as such only change of relief under the provisions of Specific Relief Act cannot be denied to the plaintiff in as much as once the pleadings were already there, it will not change the nature of the suit. 16. Order VI, Rule 17, CPC relates to the amendment of pleadings. Rule 17 has further been amended and substituted by the CPC (Amendment) Act, 2002 with effect from 1-7-2002. The original Rule 17 was as under: 17. 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. 18. Sri N. C. Gupta, Standing Counsel however, has argued that the amendment will change the nature of the proceedings in as much as notice under Section 80, CPC was not in respect of amended pleadings and further the amended pleading is barred by the provisions of Order II, Rule 2, CPC. 19. It is not a settled law that at the time of allowing of amendment, the Court has only to look as to whether the ingredients of Order VI, Rule 17 are satisfied or not. Rule 17 is very much clear. It provides that amendment can be allowed at any stage of proceedings on such terms as may be just, there is no quarrel with the proposition that the amendment was sought at the trial stage and that too without changing the nature of the suit. 20. Order VI, Rule 17 has been interpreted by the Honble Supreme Court in various decisions and the apex Court has given guidelines for the law Courts that the Courts while deciding such prayers should not adopt a hyper technical view. 20. Order VI, Rule 17 has been interpreted by the Honble Supreme Court in various decisions and the apex Court has given guidelines for the law Courts that the Courts while deciding such prayers should not adopt a hyper technical view. Aforesaid guidelines have been given by the apex Court in B. Narayan Pillai v. Parmeshwaran Pillai and another, (2000) 2 SC 1 SCC 712: 2000 SCFBRC 32. It has also been emphasised in the aforesaid decision that technicalities of law should not be permitted to hamper the Court in administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled multiplicities of litigation. 21. Admittedly, in the present case cause of action which the plaintiff has pleaded is cancellation of patta in his favour, either in the original pleadings or in the amended pleadings, he is not changing the cause of action. The cause of action shall still is the same i. e. cancellation of patta and he wants to get it declared null and void. Therefore, it is a fit case where the observations of the Honble Supreme Court that technicalities of law should not be permitted to hamper the Court in administration of justice and further that in order to avoid uncalled multiplicity of litigation the amendment has to be allowed. 22. The intention behind the amendment is two fold, one to avoid multiplicity of litigation and another to minimize litigation. In the case Raghu Thilak D. John v. S. Rayappan and others, 2001 (42) ALR 582 (SC): (2001) 2 SCC 472 the apex Court has held as under: "if the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize 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 averment 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. " 23. 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. " 23. The expression cause of action has also been interpreted in the case of B. K. Narayan (supra), where the apex Court after referring the judgment of Cooke v. Gill, 1873 (8) CP 107, has held that the expression cause of action in the present context does not mean every fact which is material to be proved to entitle the plaintiff to succeed The relevant observations of the apex Court are as under. 24. 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 v. 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. The 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. Union Property Corpn. Ltd. , and it seems to us to be the only possible view to take any other view would made the rule futile. The word new case have been understood to mean new set of ideas Dornan V. J. W. Ellis and Co. Ltd. , his also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party lapse of time. " 25. In my opinion, therefore, substantial justice as well as for the purposes of determining the real question in controversy between the parties the amendment sought by the plaintiff deserves to be allowed. 26. The revision is therefore, allowed. Order dated 22-5-1986 passed by the District Judge, Uttarkashi is quashed. Amendment shall be incorporated by the plaintiff in the plaint within one month after receipt of certified copy of the order. The District Judge is directed to decide the suit as far as possible within two months. The plaintiff will pay costs of Rs. The revision is therefore, allowed. Order dated 22-5-1986 passed by the District Judge, Uttarkashi is quashed. Amendment shall be incorporated by the plaintiff in the plaint within one month after receipt of certified copy of the order. The District Judge is directed to decide the suit as far as possible within two months. The plaintiff will pay costs of Rs. 2,000, which shall be deposited in State Legal Service Authority, Uttaranchal and shall be utilized for the benefit of poor litigants. Revision allowed. .