Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 349 (GAU)

Ghanshyam Sharma v. Jadu Nandan Sharma

2007-05-15

AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. The order in challenge is one dated 06.12.2005, passed by the learned Civil Judge (Senior Division), No. 3, in Title Suit No. 68 of 1999, rejecting the application of the petitioners/plaintiffs under Order 6, Rule 17 of the Civil Procedure Code (hereafter also referred to as the Code), seeking amendment of the plaint 2. I have heard Mr. D.C. Sharma, learned Counsel for the petitioner and Mr. O.P. Bhati, learned Counsel for the opposite party. 3. The run up of facts in brief leading to the instant petition has to be minuted. The petitioners instituted the aforementioned suit against the opposite party praying for a decree, inter alia for declaration of their right, title and interest in the property described in Schedule D to the plaint and permanent injunction restraining them from demolishing the godown or any part thereof, described in Schedule C thereto. It was averred that during the lifetime of the father of the petitioner/respondent No. 1, their ancestral property was partitioned on 04.03.1974, in course of which a godown measuring 31' x 27' fell in their share, as described in Schedule C to the plaint. The western portion thereof, was identified to be that of the petitioners and is the suit premises. The petitioners alleged that on 10.03.1999, all on a sudden the opposite party started demolishing the godown, which necessitated the institution of the suit with the reliefs, as above. In their written statement, the opposite party claimed that the eastern side of the godown fell in their share and as the other half thereof, remained intact, there was no cause of action of the suit. While the proceeding was thus pending, Smt. Mohini Devi Sharma (defendant No. 5), wife of the respondent No. 3, died on 25.03.2005. It is asserted that to perform the religious rites in connection therewith, the opposite party sought to temporarily use the petitioner's portion of the godown described in Schedule "D" on the condition; they would vacate the same immediately after the ceremony was over. Though, the petitioners on good faith permitted the use of their portion of the godown, the opposite party did not handover the vacant possession thereof, inspite of repeated requests. Though, the petitioners on good faith permitted the use of their portion of the godown, the opposite party did not handover the vacant possession thereof, inspite of repeated requests. Situated thus, the petitioners submitted an application under Order 6, Rule 17 of the Code, praying for the following amendment: (i) One sentence is to be incorporated in the cause title of the plaint. Recovery of possession (ii) That the schedule "D" portion of the premises is always in possession of the plaintiffs. The defendants requested the plaintiffs to allow them to use Schedule "D" premises for the purpose of performing shradha ceremony of the defendant No. 5. The plaintiffs allowed to defendants to occupy the Schedule "D" premises to perform shradha ceremony of defendant No. 5 with condition that they will hand over the possession immediately after shradha. The defendants agreed to the conditions of the plaintiffs. The plaintiffs requested the defendants several times to hand over the possession of the suit premises. But the defendants failed to do so. Thus it has become necessary for recovery of possession of the suit premises as described in Schedule "D" of the plaint incorporated as Para 8A. (iii) One line is to be incorporated/added in prayer (a) (a) A decree may be passed for recovery of possession of the suit premises as described in Schedule "D" of the plaint. A written objection was filed by the opposite party and by the impugned order, the petitioners' prayer was rejected. 4. Mr. Sharma has urged that having regard to the amendments prayed for, the same would not have altered the nature and character of the suit in any manner; therefore, the learned Trial Court erred in law in passing the impugned order. According to the learned Counsel, the amendments sought for, were essential to determine the real controversy between the parties. The learned Court below in rejecting the prayer, had proceeded in contravention of the underlying objective of Order 6, Rule 17 of the Code, he urged. Mr. Sharma, submitted that the prayer for amendment not being delayed in the facts and circumstances of the case, the same ought not to have been declined on the ground that the trial had commenced. Mr. Sharma, submitted that the prayer for amendment not being delayed in the facts and circumstances of the case, the same ought not to have been declined on the ground that the trial had commenced. In support of this submissions, the learned Counsel placed reliance on the decisions of the Apex Court in Rajesh Kumar Aggarwal and other vs. K.K. Modi and other, AIR 2006 SC 1647 and Baldev Singh and other vs. Manohar Singh and another, AIR 2006 SC 2832 . Resisting the above, Mr. Bhati, has maintained that the amendments, if permitted, would change the nature and character of the suit to the detriment of the opposite party and that the impugned order was rightly passed in the attending factual premise. 5. Admittedly, the averred developments impelling the petitioners to pray for the amendment of the plaint, had occurred much after the institution of the suit. According to the petitioners, Smt. Mohini Devi Sharma (defendant No. 5), expired on 25.03.2005, following which their portion of the godown had been obtained by the opposite party from them for solemnizing religious rites. However, they refused to vacate the same when demanded. The application praying for amendment, as it is submitted at the Bar was filed on 10.06.2005, in substance to add the prayer for recovery of possession of the portion of the godown described in Schedule D to the plaint. This amendment logically could not have been prayed for at the commencement of the suit. The impugned order discloses that the trial of the suit had commenced on 11.06.2005, i.e. after the application for amendment. Noticeably, the learned trial Court, did not reject the application determining that the amendments prayed for would alter the nature and character of the suit or work prejudice to the opposite party. The refusal was on the sole ground that the trial had commenced and the plaintiffs had failed to disclose the reason for their failure to make the application earlier. Understandably, the learned trial Court took note of the proviso to Order 6, Rule 17, in adopting the said view. 6. The background in which the application for amendment has been made, if assumed to be correct, the request therefore, cannot be dismissed as unduly delayed. Understandably, the learned trial Court took note of the proviso to Order 6, Rule 17, in adopting the said view. 6. The background in which the application for amendment has been made, if assumed to be correct, the request therefore, cannot be dismissed as unduly delayed. Presumably, the petitioners might have borne with the opposite party for some time accepting that they would vacate the premises contained in Schedule D to the plaint and approached the learned trial Court being convinced that recovery of possession thereof, would not be feasible without judicial intervention. As it is, chronologically, going by the dates of the filing of the application for amendment and commencement for trial as well, the request under Order 6 Rule 17 of the Code, was earlier. Having regard to the facts bearing on the prayer for amendment, I am of the opinion that the same ought not to have been rejected on the ground that had weighed with the learned Court below. 7. The consistent judicial opinion on amendment of pleadings, emphasizes on a liberal and considerate approach, if warranted for determining the real question in controversy between the parties. This assuredly is to secure an abiding resolution of the lingerings dispute and prevent multiplicity of wasteful litigations. Any prayer for amendment of pleading under the above provision of the Code, has to be assayed on the measure of the above legislative intendment. The liberty granted to Court to permit amendment, even after the commencement of trial, if satisfied that the prayer could not have been bonafide made earlier proclaims the flexibility in approach permissible for the cause of justice. 8. The Apex Court in Rajesh Kumar Aggarwal and other (supra), while dilating on the purport of the above legal provision, ruled that Courts should try the merits of the case and consequently allow all amendments that may be necessary for determining the real controversy between the parties provided it does not cause injustice or prejudice to the other side. It declared that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. It observed that a Court should also take note of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to sub serve the ends of justice. The same view was affirmed in Baldev Singh and other (supra). 9. It observed that a Court should also take note of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to sub serve the ends of justice. The same view was affirmed in Baldev Singh and other (supra). 9. The facts and circumstances as a whole, do not impel a conclusion that the prayer for amendment is induced by any oblique purpose, so much so that if allowed, would result in prejudice or injustice to the opposite party. On the other hand, the amendments are essential for a full and final adjudication of the issues involved in the suit. The petition is thus allowed. The impugned order dated 06.12.2005, is set aside. The learned trial Court would permit the incorporation of the amendments as prayed for in the plaint and thereafter, proceed with the trial of the suit in accordance with law. 10. It is made clear that the observations of this Court vis-a-vis, the facts constituting the prayer for amendment, are only for the limited purpose of the instant proceeding and the learned trial Court would decide the suit independent thereof, on the basis of the pleadings of the parties and the evidence of record. The parties would appear before the learned trial Court on 20.06.2007, to take further orders. No costs. Petition allowed.