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2010 DIGILAW 271 (JK)

Mohd. Amin Dar v. Gajinder Singh

2010-05-13

GH.HASNAIN MASSODI

body2010
1. The petitioner through the medium of Civil Revision Petition calls a question on order of Ist. Additional Munsiff Srinagar dated 16.2.2010 in suit tilted Gajinder Singh Maan v. Mohammad Amin Dar (file No. 53/No) whereby the Trial Court has allowed an application under Order 6 Rule 17 Civil Procedure Code and permitted the respondent to amend the plaint. The facts relevant to the present controversy are as under:- The respondent filed a suit for grant of permanent injunction decree perpetually restraining the petitioner and his agents from interfering with respondents possession over the suit property detailed in the plaint. The respondent also prayed for a similar decree restraining the petitioner from forcibly and illegally dispossessing the respondent from the suit property. The petitioner on the other hand also filed a suit for grant of permanent injunction decree restraining the respondent from interfering with the petitioners possession over the same property that formed subject matter of the suit instituted by the respondent. The case set up by the petitioner in his suit was that the petitioner had purchased the suit property from duly authorized attorney of the owner of the property vide Sale Deed executed on 8th April 2009 and registered on 10th April 2009. In other words the petitioner based his claim over the suit property on the Power of Attorney executed by the owner of the suit property in favour of his attorney inter alia authorizing him to sell/transfer the said property on his behalf and the subsequent Sale Deed executed by the said duly appointed authorized attorney in favour of the petitioner. The respondent after acquiring knowledge regarding the Power of Attorney and Sale Deed in question filed an application under Order 6 Rule 17 CPC before the Trial Court for according permission to amend the plaint. The case set up by the respondents was that the respondent having become aware of the aforementioned two documents where-under a claim to the suit property was set up by the petitioner, intended to assail the documents as being without right or authority and thus of no legal consequence. The case set up by the respondents was that the respondent having become aware of the aforementioned two documents where-under a claim to the suit property was set up by the petitioner, intended to assail the documents as being without right or authority and thus of no legal consequence. The respondent wanted to mould the relief clause accordingly and in addition to permanent injunction decree seek a declaratory decree declaring the Power of Attorney dated 13.2.2009, and Sale Deed dated 8th April 2009 registered on 10th April 2009 as null and void, non-est in the eye of law and not binding on the respondent. 2. The application for grant of permission to amend the plaint was resisted by the petitioner primarily on the grounds that the amendment was likely to enable the respondent to introduce a new case and set up a new cause of action. It was pleaded that the amendment if allowed was likely to bring the suit out of pecuniary jurisdiction of the Trial Court and the Trial Court thus lacked the jurisdiction to allow the proposed amendment. The Trial Court on going through the application under Order 6 Rule 17 CPC, objections filed by the petitioner and after hearing the counsel for the parties allowed the application and permitted the respondent to amend the plaint as proposed in the application. Learned Trial Court was of the view that the proposed amendment was not to change the nature of the suit or help the respondent to introduce a new case. The application was allowed subject to payment of Rs. 1000/- as costs. The order dated 16.2.2010 allowing the amendment application is assailed on the grounds that the respondent by amending the plaint in the manner proposed in the application was in fact allowed to convert an injunction suit simpliciter into a suit for declaration, a course not permissible under law. The Trial Court having regard to the fall-out of the proposed amendment, according to the petitioner ought to have returned the plaint to the respondent for its presentation before the Court of Competent jurisdiction. The amendment allowed by the Trial Court is said to fall outside the ambit of Order 6 Rule 17 and thus not permissible under law. 3. Heard and considered. The amendment allowed by the Trial Court is said to fall outside the ambit of Order 6 Rule 17 and thus not permissible under law. 3. Heard and considered. Order 6 Rule 17 empowers Court to allow either party to alter or amend his pleadings in such manner and on such terms as in the opinion of the court may be just. However, a duty is cast on the court to allow the parties to amend the pleadings as in the opinion of the court may be necessary for purpose of determining the real controversy between the parties. The provision thus has two limbs one conferring a power and other casting a duty on the court. It is pertinent to point out that the power may be exercised and the duty performed at any stage of the proceedings. The language of Order 6 rule 17 itself is indicative of the liberal treatment an effort to amend the pleadings must get. The life purpose of the amendment provisions is to ensure that all the controversies between the parties are agitated and dealt with in a single proceedings so as to enable the Court to do justice between the parties without tracing the parties to go for multiple litigation. The multiplicity of litigation is frowned upon and discouraged by the imperatives of public policy. In the circumstances, generally speaking an amendment ought to be allowed for the purpose of determining the real controversy between the parties in a proceeding. The amendment of course, can not be allowed if it helps a party to set up a new case. To illustrate, a party to a civil proceedings can not be permitted to withdraw an admission though an effort to explain admission by amending the pleadings is permitted. Similarly an amendment may not be allowed if it makes a radical and fundamental change in constitution, character and chemistry of a pleading. In such situation the proceedings may be high-jacked and the court prevented from doing justice to the parties, or determining the controversy between the parties. The proposed object of amendment provision has been emphasized by Supreme Court in Balkrishan v. Satyaprakash AIR 2001 SC page 700 as under: - "the purpose and object of Order 6, Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The proposed object of amendment provision has been emphasized by Supreme Court in Balkrishan v. Satyaprakash AIR 2001 SC page 700 as under: - "the purpose and object of Order 6, Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High courts and this Court. It is true that the amendment can not be claimed as a matter of right and under all circumstances. Rut it is equally true that the Courts while deciding such prayers should not adopt hyper-technical approach. Liberal approach should be the general rule particularly in cases where the other-side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. 4. In Ragu Thilak D. John. v. S. Rayappan AIR 2001 SC 699, rightly relied upon by Learned Counsel for the respondent in a permanent injunction suit for restraining defendant from demolishing compound wall of the suit property, the plaintiff sought amendment to add relief of recovery of damages on the ground that the defendant during pendency of the suit demolished the compound wall The application for incorporating proposed amendment in plaint was disallowed by the Trial Court. The High Court dismissed the revision petition against the order of Trial Court mainly, on the ground that amendment if allowed, would result in introducing a new case and cause of action. It was further held by High Court that the proposed amendment would change nature of the suit and also that the amendment sought was barred by Limitation. The Supreme Court while allowing the appeal against the order of High Court held:- "The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in the paras 8 (a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in the paras 8 (a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for". 5. In a suit for permanent injunction restraining the defendant from alienation of the suit property amendment to the plaint was allowed to ask for specific performance of the contract. The amendment was held by the Trial Court not to change the original controversy between the parties as the nature of the suit was to remain the same. In Raj Kumar v. Dipender Kaur Sethi AIR SC 2005 page 1592, it was realized by plaintiff that the plaintiff had not made an averment in the plaint that he was ready and willing to perform his part of contract. The plaintiff thus made a second amendment application, to incorporate the above plea which was allowed by the Trial Court. The High Court set aside the order and the matter went to the Supreme Court, the Supreme Court in the facts and circumstances of the case restored the order of the Trial Court granting leave to amend the plaint and set aside the order of the High Court. 6. In the present case the amendment allowed by the Trial Court does not change the nature of the suit or help the plaintiff to set up a new case or introduce a new cause of action. The respondents case before the Trial Court was that the respondent was in possession of the suit property. The respondent based his claim of ownership on the facts set out in the plaint. The respondent complained that the petitioner though having no right or interest over the suit property, was keen to interfere in respondents possession over the suit property and dispossess the respondent from the said property. The respondent based his claim of ownership on the facts set out in the plaint. The respondent complained that the petitioner though having no right or interest over the suit property, was keen to interfere in respondents possession over the suit property and dispossess the respondent from the said property. The respondent in the said background asked for a permanent injunction decree restraining the petitioner from interfering with the respondents possession over the suit property or forcibly and unlawfully dispossessing the respondent from the suit property the case that the petitioner had no right or interest in the suit property, was implicit in the suit commenced by the respondent. Once the petitioner without disclosing his defence in the suit instituted by the respondent filed a separate suit relying on Power of Attorney and Sale Deed in question, it was appropriate for the respondent to amend the pleadings and question validity of the two documents on the grounds pleaded by the respondent. The controversy in effect remains same. The amendment introduced in the plaint is not alien or foreign to the real controversy between the parties. In case the respondent is not allowed to amend the plaint and question the validity of the two documents in the pending suit, the respondents right to impugne the documents shall not get extinguished, but the respondent shall be constrained to file a separate suit asking for a declaratory decree, declaring the power of attorney and Sale Deed mentioned above as non-est, null and void and inoperative as against the respondent. This shall lead to multiplicity of litigation--recourse against the public policy and required to be discouraged. The argument that the Trial Court by allowing the amendment has pushed-out the suit from its pecuniary jurisdiction is debatable and to be dealt with at appropriate stage. It is for the Trial Court to see whether a suit for grant of declaratory decree declaring a document null and void, inoperative and non-est is to be valued as per the consideration amount reflected in Sale Deed. 7. In the circumstances the order dated 16.2.2010, does not call for any interference. The revision petition is accordingly dismissed. Having regard to the controversy involved in the two suits the Trial Court may consider consolidating the two suits, so that both the suits because of identical controversies are taken up and tried together. 7. In the circumstances the order dated 16.2.2010, does not call for any interference. The revision petition is accordingly dismissed. Having regard to the controversy involved in the two suits the Trial Court may consider consolidating the two suits, so that both the suits because of identical controversies are taken up and tried together. Record may be send down, parties are directed to appear before the Trial Court on 20.5.2010.