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2003 DIGILAW 41 (JHR)

Prabha Devi v. Rita Prasad

2003-01-08

M.Y.EQBAL

body2003
ORDER M.Y. Eqbal, J. 1. The question that falls for consideration in this Civil Revision is as to whether plaintiff can be allowed at the appellate stage to amend the relief portion of the plaint. 2. The plaintiff petitioner filed Title Suit No. 58/97 in the Court of Sub- Judge, Hazaribagh for declaration of title for possession of the suit land and in the alternative for recovery of possession and also for a decree of permanent injunction restraining defendants from creating any disturbances or interfering with the possession of the plaintiff over the suit land. 3. The brief facts of the case is that defendant No. 2 acquired the suit property by inheritance and became absolute owner of the same. In 1992 it is alleged that defendant No. 1 got the sale deed registered in his favour without paying any consideration amount to defendant No. 2. The defendant No. 1 inspite of the aforesaid sale made by registered deed dated 17.3.1992 did not came in possession. The defendant No. 2 thereafter executed a registered deed of cancellation on 11.2.1993 canceling the aforesaid registered deed dated 17.3.1992. Thereafter defendant No. 2 sold the said land in favour of the plaintiff by virtue of registered of sale dated 22.9.1993 on payment of full consideration amount. The plaintiffs further case is that after the said purchase he got his name mutated in the revenue records and have been paying rent to the State of Bihar. In 1997 a proceeding in Section 144, Cr PC with respect, to said land was initiated at the instance of defendant No. 1 and the same was made absolute against him but he still continued creating disturbances. Hence the suit. It appears from the judgment passed by the trial Court that summons were duly served upon both the defendants who did not con test the suit by filing written statement. The suit was therefore virtually proceeded ex- party against the defendants. The trial Court dismissed the suit mainly on technical ground that the plaintiff did not seek a relief for setting aside the sale deed executed by defendant No. 2 in favour of defendant No. 1. The trial Court held that in absence of a relief for setting aside the first sale deed the plaintiff is not entitled to get any relief in respect of the suit land. 4. The trial Court held that in absence of a relief for setting aside the first sale deed the plaintiff is not entitled to get any relief in respect of the suit land. 4. Being aggrieved by the judgment of the trial Court the plaintiff petitioner filed an appeal before the District Judge, Hazaribagh being title appeal No. 7/99. In the said appeal an application was filed by the plaintiff for amendment of the plaint by inserting a relief that the sale deed dated 17.3.1992 executed by defendant No. 2 in favour of defendant No. 1 is null and void and mere a paper transaction, without consideration, not acted upon and is not binding upon the plaintiff. The appellate Court refused to allow the prayer on the ground that the said prayer was made after three years from the date of institution of the suit and therefore, the same is not maintainable. 5. I have heard Mr. Manjul Prasad, learned counsel for the petitioner and Mr. Om Prakash Singh, learned counsel appearing for opposite party No. 2. No counsel appears on behalf of the other opposite parties. 6. From perusal of the impugned order passed by the appellate Court, it appears that the Court has not correctly appreciated the law with regard to amendment of the pleading. The general rule is that leave to amend the pleading ought to be granted unless the party applying is acting mala fide or by his blunder had done some injuries to his opponent which may not be compensated by an award of costs. Whether the original omission arose from negligence, carelessness or accidental error, the defect may be allowed to be rectified if no injuries is done to the other side. 7. As noticed above, the trial Court dismissed the suit holding that the plaintiff has committed a legal and vital mistake by not seeking a relief in the plaint to set aside the effect and force of the first sale deed executed in favour of defendant No. 1. 8. At this stage I must refer the decision of the Supreme Court in the case of Mst. 8. At this stage I must refer the decision of the Supreme Court in the case of Mst. Rukhmabai v. Lala Laxmi Narayan and others, AIR 1960 SC 335 , where their lordships observed that where the suit was filed without seeking appropriate relief, it is well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. 9. In the case of Jaijairam Manoharlal v. National Building Materials Supply, Gurgaon reported in AIR 1969 SC 1267 the Supreme Court settled the law in the matter of amendment of the pleading their lordships observed as under : "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensed for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." 10. In the case of Smt. Shyam Dulari v. Bhagwan Das and others, AIR 1979 Alld 192 the suit was filed only for cancellation of sale deed executed in favour of the defendant. At the appellate stage amendment was sought for adding an alternative relief of possession. Allowing such amendment the Allabahad High Court observed that an amendment can be allowed even at the appellate stage provided it is not of such nature as to change the nature of the suit. 11. In the case of Siyaram Das and Anr. v. State of Bihar and Ors., AIR 1979 Pat 98 , a suit was filed for mere declaration. At the stage of hearing argument prayer for amendment was made for including a prayer for confirmation or in the alternative recovery of possession. Allowing such amendment their lordships held as under : "A suit in respect of one cause of action does not become different in nature unless the cause of action subsequently introduced is itself of a different nature. Allowing such amendment their lordships held as under : "A suit in respect of one cause of action does not become different in nature unless the cause of action subsequently introduced is itself of a different nature. It may be that on the same set of facts the cause of action arises which may leave scope for more than one relief to be prayed for. Where the suitor has asked for one relief and not the other, and next asks for the other, the cause of action cannot merely on that account be said to become different. Where, however, certain more facts are introduced on the basis of which a new cause of action arises, and if they are sought to be introduced and a fresh relief on their basis is asked for, it would undoubtedly be a new cause of action. In the case of A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96 the learned Judges of the Supreme Court said that the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action but it is well recognized that where the amendment amounts to no more than a different or an additional approach to the same facts the amendment will be allowed even after the expiry of the statutory period of limitation. The learned Judge farther said that the expression "cause of action" does not mean every fact which is material to be proved, to entitle the plaintiff to succeed and that expression means "a new claim made on a new basis constituted by new facts". Their Lordships further said "the words new case have been understood to mean new set of ideas, Dornan v. J.R. Ellis and Co. Ltd. (1962) 1 All ER 303. This also seems to us to be 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 by lapse of time." In this view of the matter, the question arises whether by virtue of praying for a relief for confirmation or recovery of possession the nature of the suit changes." 12. In G. Nagammas case (G. Nagamma v. Siromanamma) reported in 1996 Vol (2) SCC 25 a suit was filed by the plaintiff-appellant for specific performance of contract of reconveyance. In G. Nagammas case (G. Nagamma v. Siromanamma) reported in 1996 Vol (2) SCC 25 a suit was filed by the plaintiff-appellant for specific performance of contract of reconveyance. At the appellate stage amendment petition was filed for adding alternative relief for a decree of redemption of mortgage. Allowing the prayer the apex Court observed as under : "We called upon the appellate to produce original agreement of reconveyance. We have seen the original document which contains the recitals in support of the contention raised by the appellants. It is settled law that the plaintiff is entitled to plead even inconsistent pleas. In this case, they are seeking alternative reliefs. The application was for amendment of the plaint whereby neither cause of action could change nor the relief could be materially affected. We allow the same." 13. In the case of Nanduri Yoganan-da Lakshminarasimhachari and Ors. v. Sri Agastheswaraswamivaru reported in AIR 1960 SC 622 , the plaintiff filed a suit for recovery of arrears of income to the trust property on the ground that the properly constituted specific endowment. At the appellate stage amendment was sought for addition of one more relief which was allowed by the High Court. Affirming the said order the Supreme Court observed : "In this appeal counsel for the appellant has raised three points. (1) that the suit was not maintainable; (2) that the amendment should not have been allowed and (3) the grant was a personal grant to the appellants burdened with the provision for service and it was not a specific endowment. As far as the first question is concerned it has not been shown as to how the suit was not maintainable. The question of amendment in our opinion, was rightly decided by the High Court. As held by that Court all the necessary allegations had been made in the plaint and the requisite pleas had been raised by the appellants; an issue was framed on the question and the parties were fully cognizant of the points in controversy and the necessary evidence was led by the parties. In this view of the matter the High Court was right in allowing the amendment by the addition of a prayer in the prayer clause." 14. Recently in the case of Sampath Kumar v. Ayyakannu and Anr. In this view of the matter the High Court was right in allowing the amendment by the addition of a prayer in the prayer clause." 14. Recently in the case of Sampath Kumar v. Ayyakannu and Anr. 2002 (7) SCC 559 : 2003 (1) JCR 283 (SC) a suit for permanent prohibitory injunction was filed by the plaintiff alleging his possession over the suit property. The defendant in his written statement denied the averment and pleaded that on the date of institution of the suit he was in possession. Before commencement of trial the plaintiff moved an application seeking to amend the plaint by claiming relief on declaration of title and consequential relief of recovery of possession on the ground that during the pendency of the suit the defendant forcibly dis-possessed the plaintiff. The defendant opposed the petition on the ground that the relief sought for is barred by limitation and therefore, a valuable right has agreed to the defendant which was sought to be taken away by the proposed amendment. The trial Court rejected the application and the order was maintained by the High Court in revision. The Apex Court allowing the said amendment observed as under : "In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of the relief sought for by the plaintiff. In the opinion of the trial Court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiffs revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to incorporated in the pending suit. In the fact and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings." 15. In the light of law laid down by the Supreme Court and different High Courts and also having regard to the settled proposition of law the impugned order passed by the appellate Court refusing to allow amendment of the plaint is wholly unjustified. In the light of law laid down by the Supreme Court and different High Courts and also having regard to the settled proposition of law the impugned order passed by the appellate Court refusing to allow amendment of the plaint is wholly unjustified. In my view the amendment sought for neither introduces a new cause of action or new case nor defendant can take it by surprise. The suit was filed on the basis of title which was not even denied by the defendant by filing written statement. The amendment prayed for a decree for setting aside the sale deed executed by defendant No. 2 in favour of defendant No. 1 was based on the same cause of action. There is sufficient pleading in the plaint and the claim regarding the relief of setting aside the sale deed, was in substance, in the plaint from the very beginning of the suit. The defendants-opposite party could not therefore, legitimately say that he was taken by surprise by the proposed amendment sought for by the plaintiff. 16. For the foregoing reasons it has to be held that the appellate Court has committed error of law in rejecting the application for amendment of the plaint. This revision application is accordingly allowed and the impugned order passed by the appellate Court is set aside. Consequently. the amendment sought for is allowed. In the circumstance of the case the parties are directed to bear their own costs in the revision application.