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2010 DIGILAW 254 (JHR)

Devbala Bhatt v. Ganesh Prasad

2010-02-17

D.N.PATEL

body2010
JUDGMENT : D.N. PATEL, J. 1. The present writ petition has been preferred under Article 227 of the Constitution of India against an order passed by the learned Munsif-Ist, Dhanbad dated 5th October, 2007, below an application preferred by the present petitioner (original plaintiff) for amendment in the plaint under Order VI Rule 17 of the CPC in Title (Eviction) Suit No. 42 of 2006 and as this amendment application preferred by the original plaintiff has been dismissed by the trial court, this writ petition has been preferred. 2. Learned Counsel for the petitioner vehemently submitted that the petitioner is an original plaintiff, who has instituted Title (Eviction) Suit No. 42 of 2006 mainly on the ground that the respondent, who is original defendant, is not paying the rent. Initially, in the plaint, there was some mistake in mentioning the period, for which, the rent is not paid to the original plaintiff. This period was mentioned as period running from June, 2006 to August, 2006, but, later on, when the evidence of the plaintiffs side was going on, the original plaintiff gave an application for amendment in the plaint under Order VI Rule 17 of the CPC that paragraph Nos. 7, 8, 10 and 11 of the original plaint are required to be amended and mainly the period, for which, the rent is not paid was wrongly mentioned in the plaint as June, 2006 to August, 2006, but, it ought to have been June, 2005 to January, 2006 and onwards, and the trial court has not appreciated that. By this amendment, nature of the suit will' remain as it is. Only the period of default will be changed. This is an error apparent on the face of the record in the order passed by the trial court and therefore, the impugned order deserves to be quashed and set aside. The amendment will not affect the very root of the case and therefore, it should be allowed. Plaintiffs evidence is going on and therefore, no prejudice is going to cause to the original defendant and otherwise also, the petitioner (original plaintiff) is ready to pay the token cost for allowing this amendment. 3. The amendment will not affect the very root of the case and therefore, it should be allowed. Plaintiffs evidence is going on and therefore, no prejudice is going to cause to the original defendant and otherwise also, the petitioner (original plaintiff) is ready to pay the token cost for allowing this amendment. 3. Learned Counsel for the petitioner his also submitted that it has been held by the Hon'ble Supreme Court in the case of Surender Kumar Sharma v. Makhan Singh as reported in 2009 (4) JLJR 191 SC especially, in paragraph Nos. 7 and 8, which read as under: 7. As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise, B.K.N. Narayana Pillai Vs. P. Pillai and Another, . Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment can not be allowed: 8. P. Pillai and Another, . Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment can not be allowed: 8. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed. In view of the aforesaid decision also, the impugned order deserves to be quashed and set aside. 4. Though the respondent is served, nobody appeared on behalf of the respondent. 5. Having heard learned Counsel for the petitioner and looking to the facts and circumstances of the case and looking to the impugned order passed by the trial court, it appears that the present petitioner is original plaintiff, who has instituted Title (Eviction) Suit No. 42 of 2006 mainly on the ground that the tenant is not paying the rent. It appears that initially, the period mentioned for default in the plaint in paragraph No. 7 was as June, 2006 to August, 2006 thereafter, the original plaintiff came to know that there is some error in narration of this period and therefore, when the evidence of the plaintiff is going on and an application was preferred by the original plaintiff under Order VI Rule 17 of the CPC for amendment in the plaint in paragraph Nos. 7, 8, 10 and 11 and the main amendment is that instead of June, 2006 to August, 2006, it ought to have been June, 2005 to January, 2006 and onwards, thus, the period, for which, the rent is not paid by the original defendant has been brought to the notice of the court by way of an amendment. This amendment does not change the nature of the suit. By this amendment, on the contrary, the trial court will be facilitated in arriving at a correct decision of the dispute between the parties. On perusal of the original plaint as well as the nature of the amendment, it ought to have been allowed by the trial court. By allowing this amendment, it cannot be said that the whole nature of the suit or plaint will be changed This is an error apparent on the face of the record committed by the trial court that by allowing this amendment, there will be change in the nature of the suit and therefore, I hereby, quash and; set aside the order passed by the trial court and allow the application preferred by the original plaintiff for the amendment especially, in paragraph Nos. 7, 8, 10 and 11 in the original plaint, with cost of Rs. 1,000/- (Rs. one thousand only) to be paid by the original plaintiff. This amount will be deposited before the trial court and after proper application and verification, the said amount will be permitted to be withdrawn by the original defendant. Trial court is hereby, directed top expedite the hearing of Title (Eviction) Suit No. 42 of 2006, so as to finalise it on or before 30th December, 2010). 6. In view of the aforesaid observations and directions, this writ petition is disposed of.