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2008 DIGILAW 1581 (PNJ)

Col. Satwant Singh v. Uma Bakshi

2008-09-15

H.S.BHALLA

body2008
JUDGMENT H.S. Bhalla, J. - Through this revision petition filed under Article 227 of the Constitution of India, the petitioner has prayed for setting aside of order dated 16.5.2007 passed by the Civil Judge (Junior Division), Panchkula, whereby application moved under Order 6 Rule 17, Civil Procedure Code, for amendment of the plaint has been dismissed. 2. I have heard learned counsel for the petitioner and have also gone through the impugned order. 3. Question of amendment of the pleadings is to be considered in such a manner as to enable the Courts in determining the real question of controversy between the parties. It is settled law that applications for amendment are to be allowed liberally and it is only in extra cases such application should be rejected. Consideration of the court while dealing with the cases for amendment should be whether amendment sought for, if allowed, will cause injustice or loss to other parties and whether the amendment is necessary for the purpose of determining the real question between the parties. Moreover, proposed amendment will not cause prejudice to other, which can be compensated by means of costs. To my mind, no party should suffer on account of the technicalities of law and thee amendments should be allowed to minimize the litigation between the parties. All the amendments will be generally permissible when they are necessary for determination of the real controversy in the suit. 4. In the instant case, I find that the present petitioner has filed a suit for permanent injunction restraining the respondent or her partner or any other person or on her behalf from alienating Plot No. 15, Sector 25, Panchkula, to anyone else except the present petitioner. He has further sought a decree for mandatory injunction directing the respondent defendant to transfer the said house in the name of the petitioner in accordance with agreement to sell dated 6.12.2004. Meaning thereby that, entire controversy revolves around agreement to sell mentioned above. The petitioner, by way of proposed amendment, wants to convert the suit into one for Specific Performance of the agreement to sell qua suit property. The main controversy between the parties is with regard to an agreement dated 2.4.2005 specific performance of which is being sought by the petitioner by way of proposed amendment. 5. The petitioner, by way of proposed amendment, wants to convert the suit into one for Specific Performance of the agreement to sell qua suit property. The main controversy between the parties is with regard to an agreement dated 2.4.2005 specific performance of which is being sought by the petitioner by way of proposed amendment. 5. Order 6 Rule 17, Civil Procedure code, declares that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. The present suit is at the initial stage and the learned counsel for the parties have disclosed that they are yet to lead evidence. To my mind, the object of the rule is that the Court should try merits of the case that come before them and should, consequently, 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. 6. The court at this stage should not go into the merits of the case on the basis of proposed amendment. Moreover, in the present suit, the petitioner has also claimed relief on the basis of that agreement and for the transfer of the house in question, this relief can be granted only in a suit for Specific Performance on the basis of the agreement in question. Meaning thereby that, the petitioner did not claim relief of Specific Performance in the plaint although prayer made in the plaint is that respondent be directed to execute the sale deed in favour of the petitioner as per the agreement to sell dated 6.12.2004. In order to remove the defect in the suit, an application for amendment of the plaint has been filed. In order to remove the defect in the suit, an application for amendment of the plaint has been filed. If proposed amendment is refused and ultimately, even if petitioner does not succeed in the suit for permanent injunction, he will again have to go in litigation on the basis of the agreement and amendment sought is only on the basis of the agreement dated 6.12.2004. In such like circumstances, the present amendment is necessary and the same should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 7. Without. further going into the merit of the case jest it might prejudice to either of the parties, revision petition filed by the petitioner is allowed subject to payment of Rs. 5,000/- as costs. Impugned order dated 16.5.2007 passed by the Civil Judge (Junior Division), Panchkula, is set aside. Parties are directed to appear before the learned lower court on 4.10.2008. Petition allowed.