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2005 DIGILAW 78 (UTT)

M. Lal Ji Maharaj v. Civil Judge (S. D) Haridwar

2005-03-11

RAJESH TANDON

body2005
JUDGMENT Rajesh Tandon, J.- Heard Sri Desh Raj Singh, learned counsel for the petitioner and learned standing counsel for the respondents. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 23rd December, 2004. 2. Briefly stated, a suit was filed by the plaintiff/respondent no. 3 for declaration and permanent injunction being Suit No. 52 of 1999 Rammulakh Darbar and others Vs. Madan lal and another against the petitioner as well as respondent no. 4 praying for a declaration as well as for a decree prohibitory injunction against the petitioner as well as respondent no. 4 restraining them not to interfere as a President and Pradhan of Yogacharya of plaintiff no. 1. 3. The petitioner has filed a written statement denying the possession of the plaintiff no. 2 and further it was denied that the plaintiff no. 2 is the President and Pradhan Acharya of plaintiff no. 1. 4. During the pendency of the case the plaintiff has filed an application for amendment. The amendment was sought to the following effect : 5. So far as the amendment of paragraphs 7 and is concerned, the same will not change the nature of the proceedings in as much as the plaintiff has prayed for adding the alternative plea and as such the amendment will not change the nature of the proceedings. 6. I do not find any infirmity so as to interfere under Article 226/227 of the Constitution of India; 7. The order passed by the courts below while allowing the aforesaid amendment requires no interference so far as the aforesaid part of amendment is concerned. 8. Learned counsel for the petitioner has referred AI.R. 2001 Delhi 168 Harish Chander Dewan v. Mahesh Chander Dewan and others. The facts of this case are completely different in as much as in the case of Harish Chander Dewan, there was a controversy that father of the plaintiff had no authority to let out the premises to the plaintiff and the same having not been rebutted written statement, amendment sought to the effect that plaintiff had authorized his father to manage the suit property on his behalf was held to be barred by the principles of estoppels. 9. So far as the law of amendment is concerned. 9. So far as the law of amendment is concerned. the same has been settled by this court in Bachan Lal State of Uttaranchal 2003 U .D., 513 after relying upon the decisions of the Apex Court in B.K. Narayan Pillai V. Parameshiwaran Pillai and another (2000) 1 SC Cases 712; Raghu Thilak D. John Vs. Rayappan and others (2001) 2 S.C. Cases 472; Cooke Vs. Gill (1873) 8 CP 107. Relevant observations of the Court is quoted below: "20. Order 6 Rule 17 has been interpreted by the Hon'ble Supreme Court in various decisions and the Apex Court has given guide lines for the law courts that the courts while deciding such prayers should not adopt a hypertechnical view. Aforesaid guide lines have been given by the Apex Court in B.K. Narayan Pillai V. Parameshwaran Pillai and another (2000) 1 SC Cases 712. It has also been emphasized in the aforesaid decision that technicalities of law should not be permitted to hamper the court in administration of justice between the parties. Amendments arc allowed in the pleadings to avoid uncalled multiplications of litigation. 21. Admittedly in the present case cause of action while the plaintiff has pleaded is cancellation of patta in his favour, either in the original pleadings or in the amendment pleadings he is not changing the cause of action. The cause of action still is the same i.e. cancellation of patta and he wants to get it declared null and void. Therefore, it is fit case where the observations of the Hon'ble 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 Vs. Rayappan And other: (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. In the case Raghu Thilak D. John Vs. Rayappan And other: (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." 23. 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 judgment of Cooke Vs. Gill (1873) 8 CP107 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 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 Vs. Uncos 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. 1. 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." 10. The words 'new case' have been understood to mean 'new set of ideas' Dornan Vs. 1. 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." 10. So far as the amendment in the valuation clause is concerned, the petitioner has pleaded that the issue with regard to the valuation has already been framed and therefore, the amendment with regard to the valuation shall be decided while deciding the issue of valuation itself. The findings of the courts below with regard to the valuation shall not come in the way of the trial court while deciding the issue itself. 11. Subject to the aforesaid, writ petition is disposed of.