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2006 DIGILAW 950 (PAT)

Krishnadeo Pathak v. Hemlata Choudhary

2006-10-18

NAVANITI PRASAD SINGH

body2006
Judgment 1. The present application has been filed by the plaintiff-petitioner whose application under Order 6, Rule 17 read with sec. 151 of CPC for amendment of plaint seeking additional relief has been rejected by the trial Court. The opposite party, pursuant to notice, has appeared and resisted the application. With consent of parties, this application is being heard and disposed of at the stage of admission itself. 2. On behalf of plaintiffs-petitioners, it is submitted that they had filed a suit for declaration of title over Schedule II lands and for a further declaration that the order dated 18-11-1991 passed by the Anchal Adhikari and that passed by the OCLR had no binding effect on the title and possession of the plaintiffs. By the amendment what was sought for was a declaration that the plaintiffs were in possession and confirmation of their possession over the suit lands. The trial Court rejected the amendment application on two grounds firstly that the relief as sought for with regard to declaration of possession and confirmation of possession amounted to a new relief which would change the nature of the case and secondly that evidence having been closed, the amendment could not be permitted in view of Or. 8, R. 17 proviso as substituted by CPC Amendment Act, 2002. It is the correctness of the two findings for refusing to exercise jurisdiction that is the question. 3. On behalf of plaintiff, my attention has been drawn to the issues as proposed and issues as settled. A reference to that would show that the question of possession of the plaintiff was in issue. Therefore, it is clear that both the parties entered the litigation or participated in the trial knowing fully well that one of the issues was the question of possession of the plaintiff. That being so, the Court was automatically required to go into the question of possession. Par-tics arc not being taken by surprise. They had prior notice. They went to trial. Now the question is only of a relief which is closely associated with the issue so formulated. In that view of the matter, I am of the view that the trial Judge was wrong in saying that a new case is made out. In my view, such a relief was consequential to the finding on the issue of possession. 4. Now the question is only of a relief which is closely associated with the issue so formulated. In that view of the matter, I am of the view that the trial Judge was wrong in saying that a new case is made out. In my view, such a relief was consequential to the finding on the issue of possession. 4. Now coming to the next question whether such an amendment would be permitted at this stage. The learned Senior Counsel appearing on behalf of opposite party has placed reliance on the amended provisions of Order 6, Rule 17 and in particular proviso thereof and submits that trial having begun and no reason having been shown for not seeking the amendment ear -her, the amendment could not be permitted. On the other hand, it is pointed out by the learned Counsel for petitioners that in view of sec. 16(2)(b) of the Code of Civil Procedure (Amendment Act), 2002, the amended provisions shall not apply in respect of any pleadings filed before the commencement of the earlier Amendment Act that is the Code of Civil Procedure Amendment Act, 1999 and sec. 7 of the present Amendment Act. sec. 7 of the present Amendment Act deals with amendment to Order 6. It would, thus, be manifest that in view of the sec. 16(2)(b) of the Amendment Act, 2002, the amended provisions of Or. 6, R. 17 and in particular proviso thereof would not apply to pleadings and/or cases instituted prior to 1999. The present case is of 1994 and for this reason, the said prohibition, as contained in the proviso, would not apply. 5. Learned Counsel for the opposite party has relied on two decisions of this Court, namely, Smt. Lipika Gupta V/s. Mr. Partho Gupta, 2005 2 PLJR 644 and Shree Narayan and Anr. V/s. Mahendra Prasad Yadav and Ors., 2006 2 PLJR 489 wherein this Court had applied the amended provisions of Order 6 Rule 17 proviso to suits filed prior to 1999 as well. He submits that the said two cases are authority for the proposition opposite to what has been canvassed by the petitioner. I have perused both the judgments. In neither of the judgments, this question was in issue. It was neither raised nor argued nor decided. He submits that the said two cases are authority for the proposition opposite to what has been canvassed by the petitioner. I have perused both the judgments. In neither of the judgments, this question was in issue. It was neither raised nor argued nor decided. It is well established principle of law that a judgment is an authority for what it decides and not what logically flows from it notwithstanding the generality of proposition mentioned therein. The issue not being there in those two cases as to applicability of the amended provisions to pending proceedings, the same was not decided. Therefore, the said two judgments cannot be precedents much less binding precedents. 6. Further, it would be seen that it has been a settled principle of law that amendment should be liberally allowed as it would tend to end all litigations between the par-ties once and for all and, as such, it would be in the larger interest of justice to permit such an amendment especially when none of the parties are taken with surprise. 7. In the result, this application is al-lowed and the impugned order is set aside.