Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1361 (MP)

SURAJDEEN v. RAMLAL BAHELIYA

2008-11-21

K.K.LAHOTI, SUSHMA SHRIVASTAVA

body2008
Judgment ( 1. ) THE petitioners have assailed the order dated 2-9-05 by Third Civil Judge, class I, Rewa in C. S. No. 47-A/05 by which petitioners application under Order 6 Rule 17 of CPC seeking amendment in the plaint was rejected. ( 2. ) LEARNED Counsel for the petitioners submitted that the amendment as prayed by the petitioners was based on subsequent events. During the pendency of the suit, respondents dispossessed the petitioners by raising a construction over the disputed land. Petitioner initially filed a suit seeking relief of perpetual injunction against the respondents. But the prayer of temporary injunction, during the pendency of this suit was rejected by the Court. Thereafter when the petitioners were dispossessed, petitioners filed an application seeking amendment of relief of declaration of title, possession and mesne profit. The Trial Court rejected the aforesaid application mainly on the ground that the proposed amendment shall change the nature of the suit and this will cause prejudice to the other side, while the factual position is that this amendment was based on subsequent events occurred after filing of the suit, the proposed amendment was necessary for just decision of this suit. ( 3. ) LEARNED Counsel lor the respondents opposed the prayer and submitted that the proposed amendment would change the nature of the suit and cause serious prejudice to the respondents. The suit was only for issuance of perpetual injunction and now the petitioners want to change the nature of the suit by converting such suit for declaration, possession and mesne profit. It is submitted that the Trial Court rightly rejected the application filed by the petitioners, which order needs no interference by this Court. Reliance is placed by the respondents to three judgments of this Court in Hukumchand (Dead) Through L. Rs. Vs. Mahantramcharan Dass Chela and others, 2001 (4) M. P. H. T. 170, Smt. Hansa Devi Sahu Vs. Bachchalal Jaisinghani and another, 2001 (5)M. P. H. T. 116 and Mangilai Vs. Dambarlal, 2007 (4) M. P. L. J. 200 = 2008 (1)M. P. H. T. 68, and submitted that this petition may be dismissed. ( 4. ) TO appreciate the aforesaid contentions, factual position in the case may be seen, that the petitioners filed a suit against the respondents seeking perpetual injunction. Dambarlal, 2007 (4) M. P. L. J. 200 = 2008 (1)M. P. H. T. 68, and submitted that this petition may be dismissed. ( 4. ) TO appreciate the aforesaid contentions, factual position in the case may be seen, that the petitioners filed a suit against the respondents seeking perpetual injunction. But the petitioners application seeking temporary injunction during the pendency of the suit, under Order 39 Rules 1 and 2, CPC was rejected on 18-10-01. Against the aforesaid order, petitioners preferred a revision before the High Court, but it was also dismissed as not maintainable, after coming into force of amended provisions of Section 115 of CPC on 1-7-02 thereafter, the petitioners moved an application on 5-4-05 before the Trial court on the ground that during the pendency of the suit, the defendants took the possession of southern part of the property and claimed himself to be pattedar of the land, so the proposed amendment was necessary for seeking relief of declaration and possession in respect of disputed land. This application was opposed by the respondents on the ground as stated by learned Counsel for the respondents before this Court. The Trial Court rejected the aforesaid application by the impugned order. But the fact remains that the petitioners have specifically pleaded in the application that during the pendency of the suit, the petitioners were dispossessed and their title was denied by the respondents by setting defence of patta in their favour. In these circumstances, it was necessary for the plaintiff to seek amendment in the plaint. The Trial Court had not considered the application is proper perspective and rejected the application. ( 5. ) THE judgment relied on by learned Counsel for the respondents are not applicable in the present case. In Hukumchand (Dead) Through L. Rs. (supra), amendment which was sought by the parties was filed after 27 years of filing of the suit and in that circumstances, this Court found it appropriate to reject the application, which was highly belated. In Smt. Hansa Devi Sahu (supra), the question before this Court was that the proposed amendment was causing serious prejudice to other side in that case the amendment application was dismissed. In Smt. Hansa Devi Sahu (supra), the question before this Court was that the proposed amendment was causing serious prejudice to other side in that case the amendment application was dismissed. In Mangilai (supra), the High Court allowed the amendment so far as it relates to disputed property, but affirm the rejection of the application, so far as it relates to shop No. 44 which was not subject matter of the suit. ( 6. ) IN the present case, amendment was prayed for possession in respect of disputed property for which the petitioner earlier prayed for perpetual injunction against the respondents. During the pendency of the suit, the petitioners were dispossessed from the suit land. The petitioners by way of this application were seeking relief of declaration of title and possession. ( 7. ) THE Apex Court in Pankaja and another Vs. Yellappa, (2004) 6 SCC 415 , held that the amendment of plaint can be allowed by the Court even where the relief sought to be added by amendment was allegedly barred by limitation. There is no absolute bar that the amendment in such a case should not be allowed. Courts discretion in that regard depends on the facts and circumstances of the case and has to be exercised on a judicious evaluation thereof. An amendment subserving the ultimate cause of justice and avoiding further litigation should be allowed. In that case, the plaintiff filed a suit seeking possession of the suit property. After six years of filing of the suit, plaintiff filed an application to amend the plaint to seek also the relief of declaration of the plaintiffs ownership of that property. The prayer was opposed by the defendant alleging that in view of Article 58 of the Limitation Act, such amendment was barred by limitation. The plaintiff disputed the defendants allegation and contended that in view of Articles 64 and 65 of the Limitation Act, the amendment sought by him was within limitation. The Apex Court found that the court below erred in rejecting the amendment application without considering the controversy. Necessary factual basis in regard to the title was already laid down in the plaint, although controverted by the defendant in his written statement, it will not be amount to introduction of a relief different from that sought in the plaint. The Apex Court allowed the amendment in the plaint. Necessary factual basis in regard to the title was already laid down in the plaint, although controverted by the defendant in his written statement, it will not be amount to introduction of a relief different from that sought in the plaint. The Apex Court allowed the amendment in the plaint. The aforesaid law laid down by the Apex Court is fully applicable in the present case. ( 8. ) IN Rajesh Kumar Aggrawal Vs. K. K. Modi, (2006) 4 SCC 385 , the apex Court considered the scope of Order 6 Rule 17, CPC and held that subsequent event can be considered in permitting amendment. The merits of the amendment cannot be considered. The Courts should allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. The real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. The Courts should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. If it was permissible for the plaintiff to file an independent suit on the basis of the amendment application turned down by the Court. It is incomprehensible why same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. ( 9. ) IF the amendment sought was necessary for the purpose of determining the real controversy between the parties that should be allowed. ( 10. ) IN the light of the aforesaid law laid down by the Apex Court, we are of the opinion that the Trial Court erred in rejecting the application, if the aforesaid order is maintained, it will cause serious prejudice to the petitioners and cause miscarriage of justice. In view of the aforesaid, we permit the petitioners to amend the plaint and the application filed by the petitioners under order 6 Rule 17 of CPC is allowed. As this amendment was tiled little late, we impose cost of Rs. 2,000/- on the petitioners. It shall be payable to the respondents before amending the plaint as allowed by this Court. As this amendment was tiled little late, we impose cost of Rs. 2,000/- on the petitioners. It shall be payable to the respondents before amending the plaint as allowed by this Court. After amendment of the pleadings, respondents shall be entitled for consequential amendment in the written statement and to raise objections as permissible in accordance with law. ( 11. ) THE petitioners shall pay the cost and incorporate the amendment within a period of 30 days from today.