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2005 DIGILAW 290 (UTT)

Surendra Pal Singh v. Jitendra Singh

2005-07-22

RAJESH TANDON

body2005
Judgement By the writ petition No. 41 of 2005 (M/S) the petitioner has prayed for the issue a writ of certiorari quashing the order dated 7-1-2005 by which appeal against the injunction order dated 10-3-2004 was allowed and injunction order granted by the trial Court was set aside. 2. Similarly by the writ petition No. 40 of 2005 (M/S) the petitioner has prayed for the issue of a writ of certiorari quashing the order dated 7-1-2005 passed by the Additional District Judge, Roorkee setting aside the order of amendment passed by the trial Court. 3. Briefly stated the facts giving rise to both the writ petitions are that a suit was filed by the petitioner for permanent injunction against the respondents restraining them not to interfere in the property of the plaintiff till the pendency of Suit No. 25 of 2003 under section 176 of U.P.Z.A. & L.R. Act. Further the petitioner has prayed for cancellation of the sale deed dated 1-12-2003 executed by the defendant No. 1 in favour of defendant No.3. 4. According to the plaint averments, the plaintiff and the defendants no.1 and 2 are the real brothers and both of them are having one third share in the property in dispute. Alongwith the suit the plaintiff has filed application 6-C2 for temporary injunction for restraining the defendants not to interfere in possession of the plaintiff during the pendency of the suit. The trial court has granted temporary injunction vide order dated 10-3-2004. Against the order passed by the trial Court the defendants preferred an appeal. The appellate Court has allowed the appeal vide impugned order dated 7-1-2005 on the ground that one co-sharer alone has no right to seek injunction. The plaintiff has preferred writ petition No. 41 of 2005 (MS) before this Court. 5. The sole contention of the petitioner is that since the property has not been partitioned and a suit being suit No. 25 of 2003 is pending for partition, therefore, the defendants have no right to sell the property in dispute. The counsel for the defendants has disputed this and has submitted that one co-sharer has no right to seek injunction against the other co-sharers. While filing the writ petition the parties were directed to maintain status quo on 19-1-2005. The counsel for the defendants has disputed this and has submitted that one co-sharer has no right to seek injunction against the other co-sharers. While filing the writ petition the parties were directed to maintain status quo on 19-1-2005. Since the suit relates to the year 2003 and admittedly the plaintiff and the defendants no.1 and 2 are real brothers and both are co-sharers in the property in dispute. The suit, therefore, requires to be decided expeditiously so that after the division of the property parties will be at liberty to enjoy the property of their respective shares. 6. In view of above both the parties have agreed that It will be in the interest of justice if the suit itself is decided by the trial Court within three months. Further the parties have agreed that status quo till final disposal of the suit by the trial Court. 7. During the pendency of 0.5. No. 141 of 2003 the petitioner/plaintiff moved an application 33 A-l for leave to amend the plaint. The trial Court has allowed the amendment application vide order dated 10-3-2004. Against the said order respondent no.1 flied Civil Revision No. 15 of 2004, which was allowed by the Additional District Judge, Roorkee vide order dated 7-01-2005 and set aside the order passed by the trial Court against which the plaintiff has preferred writ petition No. 40 of 2005 (MS). 8. So far as the amendment of the plaint is concerned according to the learned counsel for the petitioner the amendments which was sought to be incorporated will be change the nature of the suit. 9. Order VI Rule 17 C.P.C. relates to the amendment of pleadings. Rule 17 has further been amended and substituted by the C.P.C. (Amendment) Act 2002 with effect from 1-7-2002. 10. The original Rule 17 was as under: 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. 11. Thereafter by way of amendment the following has been substituted w.e.f. 1-7-2002. 11. Thereafter by way of amendment the following has been substituted w.e.f. 1-7-2002. 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. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 12. It is 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 dispute with the proposition that the amendment was sought at the trial stage. 13. Order 6 Rule 17 has been interpreted by the Hon'ble Supreme Court in various decisions and the Apex Court has given guide lines that the courts while deciding such prayers should not adopt a hypertechnical view. 14. In the case Raghu Thilak D. John vs. S. Rayappan And others (2001) 2 S.C. Cases 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." 15. 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." 15. The expression 'cause of action' has also been interpreted in the case of B.K. Narayan Pillai (supra) where the apex court after referring the judgement of Cooke vs. 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 : 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 vs. Gill in a different context, for if it were so, no material fact could every 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. Unicos 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 words 'new case' have been understood to mean 'new set of ideas' Dornan vs. 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 by lapse of time. " 16. The trial Court shall examine the amendment in order to do substantial justice between the parties as well as for the purpose of determining the real question in controversy between the parties. The amendment sought by the plaintiff has to be considered by the trial Court in the light of the fact as to whether by way of amendment cause of action is not going to be changed. If the cause of action remains the same by way of amendment, the court will be able to decide all the controversies involved in the suit so as to avoid the multiplicity of the proceedings. If the cause of action remains the same by way of amendment, the court will be able to decide all the controversies involved in the suit so as to avoid the multiplicity of the proceedings. The intention of the legislature by incorporating Order 6 Rule 17 of the Code of Civil Procedure is not to penalize the litigant for the fault of the pleader of the plaintiff but to extend the aid to resolve the dispute forever. Thus the technicalities of law should not be allowed to come In the way of substantial justice to the parties, which will minimize the litigation, rather than the complications. 17. Accordingly, both the writ petitions are allowed. The orders dated 7-12005 and 10-3-2004 passed by the appellate court as well as the trial Court are set aside. The trial Court is directed to decide amendment application 33-Nl afresh in the light of the observations made above and according to law. He Is further directed to decide the suit within a period of three months from today. The parties shall maintain status quo over the property in dispute till the final decision of the suit.