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2005 DIGILAW 89 (MP)

M. B. Manvani v. Bhagwandas

2005-01-17

K.K.LAHOTI

body2005
JUDGMENT Petitioner has challenged the order dated 16.9.2004 passed by VI Civil Judge Class I, Bhopal, in Civil Original Suit No. 57-A/03 by which petitioner's application under Order 6 Rule 17. CPC has been rejected. The reason assigned by the trial Court is that it will change the nature of the suit and the suit was filed only for mandatory injunction while by the application, petitioner is seeking relief for declaration and for mandatory injunction also. Learned counsel appearing for petitioner assailed the order on the following grounds: (l) That, for complete adjudication of the matter, petitioner filed an application seeking amendment in the suit. Proposed amendment was necessary. The trial Court. without considering the nature of the amendment, has rejected the application. (2) So far as objections raised by the respondents are concerned, they are free to raise their objections in the written statement and on raising such objections, the trial Court shall be free to decide it in accordance with law. Reliance is placed to the apex Court judgment in Pankaja v. Yellappa [ AIR 2004 SC 4102 ] and contended that this petition may be allowed and by setting aside the impugned order, petitioner's application under Order 6 Rule 17, CPC be allowed. Learned counsel appearing for respondents opposed the contention and submitted that the plaint was filed long back and by this application, petitioner is seeking two reliefs in the case. By the proposed amendment, petitioner has raised a plea of which cause of action arose in the year 1974 and the suit itself is barred by time on the date of filing of the application. Apart from this, the suit was filed initially for injunction only. It was proposed to be changed for declaration and injunction without seeking relief for the execution of the lease deed in favour of petitioner by setting aside the lease deed. To consider the rival contentions of the parties, it is apparent that the suit was filed in September, 2003 and the written statement has been filed in March, 2004. From the perusal of the relief clause, it is apparent that petitioner is seeking only relief of mandatory injunction. Whether it can be granted or not it is to be decided by the trial Court. From the perusal of the relief clause, it is apparent that petitioner is seeking only relief of mandatory injunction. Whether it can be granted or not it is to be decided by the trial Court. From the averments in paras 4, 5 and 6 of the amendment application, it appears that the aforesaid amendment is necessary for the just decision of the case and these facts go to the root of the case. If the amendment is necessary and it is affecting merits of the case, it may be allowed in the interest of justice and for the delay other pat1y may be compensated by way of payment of cost. In Paakaja v. Yellappa [ AIR 2004 SC 4102 ], the apex Court has held thus: "12. So far as the Court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permit, it is always open to the Court to allow applications inspite of the delay and laches in moving such amendment application. 14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised in a judicious evaluation of the facts and circumstances, in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. There can be no straightjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. 17. Factually in this case, in regard to the stand of the defendant that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. There can be no straightjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. 17. Factually in this case, in regard to the stand of the defendant that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. While the learned counsel for the defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the appellants in this case ought to have been done within 3 years when the right to sue first accrued, the appellant-plaintiff contends that the same does not fall under the said Entry but falls under Entry 64 or 65 of the said Schedule of the Limitation Act which provides for a limitation of 12 years, therefore, according to them the grayer for declaration of title is not barred by limitation, therefore, both the Courts below have seriously erred in not considering this question before rejecting the prayer for amendment. In such a situation where there is a dispute as to the bar of limitation, this Court in the case of Raghu Thilak D. John v. S. Rayappan and others [ (2001) 2 SCC 472 ] has held: "The amendment sought could not be declined. 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. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment period." In the present case, it is apparent that the petitioner has raised a plea in para 4 of the amendment application that there was some agreement between parties and it was written by defendant No.1 on 5.1.1974 in respect of the disputed plot and the defendant No. 1 accepted receipt of some amount from the plaintiff. Thereafter, the matter was processed in the Bhopal Development, but the name of the petitioner was not transferred in respect of disputed plot. Petitioner, by the amendment application, is raising plea in respect of factual averments which are necessary for the just decision of the case. Thereafter, the matter was processed in the Bhopal Development, but the name of the petitioner was not transferred in respect of disputed plot. Petitioner, by the amendment application, is raising plea in respect of factual averments which are necessary for the just decision of the case. Whether the relief can be granted finally or not, or the plea is barred by time or such relief cannot be granted without any consequential relief, all these points are to be considered by the trial Court, if such objections are raised by the respondents in the written statement. Prima facie, petitioner's application deserves to be allowed. For the delay, some cost deserves to be imposed on the petitioner. Consequently, this petition is finally disposed of with the following directions: Application under Order 6 Rule 17 read with Order 1 Rule 10, CPC is allowed subject to payment of cost of Rs. 2,000/- payable by the plaintiff in the trial Court within a period of two weeks from today before incorporation of aforesaid amendment in the plaint. On permitting the petitioner to amend the plaint, trial Court shall afford opportunity to respondents to file additional pleadings or for consequential amendment in accordance with law raising all the pleas in the written statement. The trial Court, on the basis of the pleadings shall proceed with the case in accordance with law. No order as to costs.