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2008 DIGILAW 437 (ALL)

SALEEM v. IInd ADDL. DISTRICT JUDGE

2008-02-26

RAJIV SHARMA

body2008
JUDGMENT Honble Rajiv Sharma, J.—Brief facts giving rise to this writ petition are that the petitioner has purchased a plot No. 6459/1 [new plot No. 2340] situate in village Utralua, District Balrampur by a sale deed executed in his favour on 19.6.1978. He was also put in possession of the same and his name was also mutated in the revenue records. Usman, Rajjab Ali [opposite party Nos. 3 and 4 in the present writ petition] and Mahboob, the predecessor in title to opposite party Nos. 5 to 9, started interfering in the possession of the petitioner on the aforesaid land as such the petitioner, on 16.4.1986, filed a regular suit No. 132 of 1986 for permanent injunction. During the pendency of the said suit, opposite parties started raising forcible construction over a part of the disputed land and also sold some land and as such petitioner moved an application for amendment seeking relief for cancellation of the sale deeds and for impleadment of such transferees, who were not on the record, as it will have the adverse effect on the title of the petitioner over the land in question. The defendants filed objection against the said application for amendment alleging that the plea and relief for cancellation of sale deed is barred by time and in case the amendment is allowed, it will change the very nature of the suit. 2. The learned Civil Judge, Senior Division, District Balrampur, after hearing the parties rejected the said application inter-alia on the ground that the sale deed was executed in the year 1987 whereas amendment application has been moved in the year 1997 and as such it is barred by time and accordingly rejected the application for impleadment by the order dated 20.1.2005. The order dated 20.1.2005 passed by Civil Judge [Junior Division] Utraula was challenged in civil revision No. 10 of 2005 but the learned Revisional Court also dismissed the revision as such the petitioner has approached this Court by means of instant writ petition. 3. Learned Counsel for the petitioner has contended that both the courts below committed an error in not considering the fact that the suit which has been filed by the petitioner was at early stage at the relevant time and even the issues were not framed and, as such, there would have been no harm, if the application for impleadment is allowed. Learned Counsel for the petitioner also argued that the description of only one sale deed was made in the written statement filed in the year 1987 and with regard to the existence of the sale deed in favour of the defendant No. 3, he came to know only in March, 1997 and as such the petitioner without any undue delay made application for impleadment. 4. Sri D.C. Mukherji, learned Counsel for the private respondents submitted that during the consolidation operation, Ali Ahmad, who was the father of opposite party No. 3 and original owner of the plot in dispute had not obtained any permission from the Settlement Officer, Consolidation for transferring the land to the petitioner and the plot in dispute was mutated in the name of opposite party No. 3 during consolidation operation, while he was a minor. Opposite party No. 3-Usman, when came to know about the alleged sale deed in favour of the petitioner by some imposter, he instituted a suit No. 38 of 1987 in the Court of Munsif, Utraula for cancellation of the sale deed which is pending trial. As regard the knowledge of sale deed to the petitioner, it has been submitted that the petitioner was very much aware with the execution of sale deed which would be established from the fact that the petitioner himself had filed objections in the year 1986 in the mutation proceedings. The objections so filed by the petitioner have been brought on record through the counter affidavit. 5. Sri Mukherji next contended that it is settled principle of law that the amendment in the pleading takes effect from the date of the institution of the suit unless the Court specifically provides in the order that it will take effect from the date of the amendment. Thus the only object of the petitioner was to get the plaint amended to wash of the valuable rights which have accrued to answering opposite party on the ground of limitation. It is also incorrect to say that in the suit, issues are yet to be framed as the issues were framed in the suit on 18.8.1987, thereafter the further issues were framed on 1.12.1987 and the issue on the question of valuation and court fee was decided on 6.4.1988 and thereafter the case was fixed for evidence. 6. It is also incorrect to say that in the suit, issues are yet to be framed as the issues were framed in the suit on 18.8.1987, thereafter the further issues were framed on 1.12.1987 and the issue on the question of valuation and court fee was decided on 6.4.1988 and thereafter the case was fixed for evidence. 6. Lastly, it has been contended that the opposite party No. 9 Irfan was a minor and was under the guardianship of his mother Smt. Afroz Jahan, opposite party No. 5 and as such he has wrongly been arrayed as respondent. He further pointed out that opposite party No. 4 has no title in the land in dispute and infact his wife Smt. Zohra is the owner of the part of land in dispute on the basis of sale deed executed by opposite party No. 3, but she has not been made party in the suit and writ petition. Further, for a part of land of plot in dispute, the opposite party No. 10 alongwith his brother Mehtab Beg have obtained sale deed from the opposite party No. 3 and both the persons are joint owners but Mehtab Beg has not been impleaded as party. On these grounds also the writ petition is liable to be dismissed. 7. In the rejoinder affidavit, the petitioner has stated that Ali Ahmad father of opposite party No. 3 was alive at the time of execution of sale deed in favour of the petitioner, who himself had obtained the permission from the Settlement Officer Consolidation. As regard the impleadment of opposite party No. 9, it has been stated that he is a major and the opposite parties are wrongly stating that he was minor. 8. Learned Counsel for the petitioner has vehemently argued that the impugned orders are contrary to the provisions of Order 6 Rule 17, CPC and the Supreme Court decisions. The Courts below have failed to consider that the question of the cause of action for cancellation of sale deed is a disputed fact depending on the evidence to be lead by the parties in this respect and as such the application ought not to have been rejected. 9. The Courts below have failed to consider that the question of the cause of action for cancellation of sale deed is a disputed fact depending on the evidence to be lead by the parties in this respect and as such the application ought not to have been rejected. 9. To give strength to his arguments, learned Counsel for the petitioner has relied upon a Supreme Court decision rendered in Sampath Kumar v. Ayyakannu and another, [2003(4) RD 148] wherein the Honble Supreme Court allowed the amendments which were sought to be incorporated after 11 years of the institution of the suit. However, the Honble Supreme Court imposed a cost for incorporating the amendment. 10. The object of Order 6 Rule 17 of the Code of Civil Procedure is that the Court should try the merits of the case that come before them and should consequently allow all the amendments that may be necessary for determining the real question in controversy between the parties. Order 6 Rule 17 consists of two parts. The first part is discretionary and leaves it to the court to order amendment of pleading while the second part is imperative and empowers the court to allow all the amendments which are necessary for the purposes of determining the real question in controversy between the parties. 11. A party cannot be refused a just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court generally gives leave to amend the pleadings to a party unless it is satisfied that the party applying was acting malafide or that by his blunder, he had caused injury to his opponent. In the present case the amendments which are sought to be incorporated will not change the basic nature of the suit. 12. In Rajesh Kumar Aggarwal and others v. K.K. Modi and others, (2006) 4 SCC 385 , the Honble Supreme Court has held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. Further while considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Further while considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. 13. In the recent decision rendered by the Honble Supreme Court in Usha Balasaheb Swami and others v. Kiran Appaso Swami and others, (2007) SCC 602, it has been held that the Courts should be liberal in granting the prayer for amendment of pleadings. Paragraph 18 of the reports reads as under : "It is now well settled by various decisions of this Court as well as those by the High Courts that the Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung may be taken note of. The Privy Council observed : "All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject- matter of the suit". 14. Having heard the submissions made by the learned Counsel for the parties and the law cited by the parties, and in view of the recent decision of the Honble Supreme Court in Usha Balasaheb Swamis case (supra) wherein it has been held that the Courts should be liberal in granting the prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one, the petitioner may be permitted to incorporate the amendments sought by him. 15. In view of the aforesaid reasons the writ petition is allowed. 15. In view of the aforesaid reasons the writ petition is allowed. The impugned orders passed by the Trial Court and the Revisional Court are set-aside. The plaintiff/petitioner is permitted to incorporate the plea sought to be raised by way of amendment in the original plaint. However, in view of the delay in making the application, the petitioner is directed to pay Rs. 5000/- (Rupees five thousand only) as a condition precedent for incorporating the amendment in the plaint. ————