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2010 DIGILAW 416 (JK)

Mohd. Shafi Rather v. Gh. Mohd. Rather

2010-07-29

Hasnain Massodi

body2010
1. The respondents on 14th October, 2006 commenced a suit in the Court of First Civil Sub-Judge, Srinagar for grant of permanent injunction decree restraining the petitioners from raising construction in vicinity of the respondents’ property. The respondents alongside the suit, filed an application for ad-interim injunction. The trial Court vide order dated 22nd September, 2007 dismissed the temporary injunction application. However, officers and officials of Srinagar Municipal Corporation/Building Corporation Controlling Authority were asked to ensure that the proposed construction was raised by the petitioners in accordance with the approved building plans and the permission accorded in favour of the petitioners. The trial court’s order dated 22nd September, 2007 was assailed through medium of Civil Miscellaneous Appeal before learned 3rd Additional District Judge, Srinagar. The appeal was decided vide order dated 5th October, 2007. 2. The respondents 1 to 3 on 7th May, 2008 filed an application for amendment of the plaint. The respondents 1 to 3 proposed to plead that during pendency of the suit the petitioners illegally encroached upon a strip of land measuring six marlas comprising survey no. 717, Mouza Khusoo Padshahi Bagh, Srinagar and brought it under the suit construction in violation of the rights of the respondents 1 to 3 and against the building plans sanctioned in their favour. The amendment application found no opposition from the official respondents. However, the petitioners resisted the application on the grounds that the application was time barred and so was case sought to be introduced by the respondents 1 to 3. The petitioners insisted that the case set up under the cover of amendment to the plaint, was beyond the relief sought in the plaint. It was pointed out that the respondents 1 to 3 in the suit sought a decree for permanent injunction restraining the petitioners from carrying on any construction without permission and restraining the official respondents from issuing any permission in favour of the petitioners; that the respondents 1 to 3 did not question the permission granted by the official respondents in favour of the petitioners. The petitioners insisted that as any amendment to the plaint enabling the plaintiff to introduce a new cause of action was not permissible, the application deserved to be dismissed. The petitioners insisted that as any amendment to the plaint enabling the plaintiff to introduce a new cause of action was not permissible, the application deserved to be dismissed. The petitioners insisted that the facts sought to be brought on record through amendment were already in the knowledge of the respondents 1 to 3 and since the respondents 1 to 3 despite such knowledge ignore to plead said facts, it was no more open to the respondents 1 to 3 to plead the facts through amendment of the plaint. 3. Learned trial court on consideration of the matter held the facts sought to be incorporated by way of amendment to reflect, "Post-litem developments" and were likely to "affect the question to be determined in the lis". The rules of procedure, in the opinion of the trial court, being in the nature of "hand maid" to the cause of justice would not admit of any hyper technical interpretation. The trial court accordingly allowed the application, emphasizing that the entire object of the amendment was to prevent multiplicity of litigation and to have all the controversies involved, determined in one lis. 4. The order of the trial court dated 21st November, 2009 granting leave to amend the plaint is assailed in the Civil Revision in hand on the grounds that the order amounted to illegal exercise of jurisdiction by the trial court and in effect permits the respondents 1 to 3 to convert an injunction suit simpliciter into a suit for declaration and possession. It is pleaded that the order impugned in the Civil Revision is perverse and against the settled legal principles governing amendment of pleadings. 5. Heard and considered. Order 6 Rule 17 CPC empowers Court to allow the parties to alter or amend their pleadings in such manner and on such terms as in the opinion of the court may be just. Where proposed amendment in the opinion of the court is necessary for determining the real controversy between the parties, the court cannot escape its duty to allow such amendment. Where proposed amendment in the opinion of the court is necessary for determining the real controversy between the parties, the court cannot escape its duty to allow such amendment. As rightly held by learned trial court, while the court has discretion to allow either party to alter or amend his pleadings at any stage of the proceedings, the second limb of order 6 Rule 17 CPC casts a duty on court to allow an amendment which is necessary to help the court to determine the controversy between the parties. The very fact that the amendment to pleadings can be permitted at any stage of proceedings is indicative of the liberal treatment, an application to amend the pleadings must get. The provision for amendment of pleadings is in tune with the dictates of public policy that all the controversies between the parties, as far as possible, must be dealt with and resolved in one litigation and the parties must not be coerced to go for multiple litigation covering different dimensions of the same controversy. Grant of leave to amend the pleadings is the general rule and refusal is only an exception. The amendment of pleadings may be disallowed where it helps the party to introduce a completely new case, foreign to the case set up in the plaint, or to introduce a new cause of action. The amendment may be disallowed if it makes a fundamental change in basic structure of the suit or is intended to withdraw an admission and not to merely explain an admission. The purpose and object of amendment provision in the Code of Civil Procedure has been summarized by the Supreme Court in Balkrishan v. Satyaprakash AIR 2001 SC Page 700 in following words:- "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 cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt hyper-technical approach. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But 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 to the pleadings to avoid uncalled for multiplicity of litigation. 6. In another case reported as Ragu Thilak D. Johan v. S. Rayappan AIR 2001 SC Page 699, where 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 evidence from the perusal of averments made in the paras 8 (a) to 8 (f) of the plaint which are sought to be incorporated by way of amendment. We fell 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 of". 7. In Raj Kumar v. Dipender Kaur Sethi AIR SC 2005 Page 1592, 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. 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. The plaintiff later realized that he 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. 8. In the case in hand, the respondents 1 to 3 right from the beginning contended that the petitioners had no right to raise construction on the land in vicinity of the property of the respondents 1 to 3. The respondents 1 to 3 even asked for mandatory injunction decree commanding the official respondents to demolish the construction raised by the petitioners. Though the respondents did not spell out and assert in clear and unambiguous words right over a part of land admitted to be brought under the proposed construction yet, it was all along the case of the respondents 1 to 3 that the petitioners had no right to raise construction on the said land. In the circumstances the respondents 1 to 3 cannot be denied right to amend their plaint and ask for demolition of the construction which according to the respondents 1 to 3 has been raised in violation of court orders as also against the permission accorded in their favour by the official respondents, and seek a direction to the petitioners to restore the strip of land brought under alleged illegal construction to the respondents 1 to 3. The amendment in question, in effect takes care of the developments that have taken place after the institution of the suit. The matter sought to be agitated through amendment is in continuity to the case set up earlier by the respondents 1 to 3 in the plaint and cannot be said to be alien to the controversy already before the court. The matter sought to be agitated through amendment is in continuity to the case set up earlier by the respondents 1 to 3 in the plaint and cannot be said to be alien to the controversy already before the court. In the event, the trial court would have disallowed the application for amendment of the plaint, the respondents 1 to 3 would have felt constrained to institute a fresh suit and open a new front against the petitioners. It may be stated at the cost of repetition that multiplicity of litigation is repugnant to the public policy and is required to be discouraged. The courts’ are required to make a liberal use of the discretion under Order 6 Rule 17 CPC and as far as possible, allow either of the parties to alter or amend pleadings, so that the parties are not pushed to multiple rounds of litigation, unless the amendment is to be declined for the reasons elsewhere, discussed in this order. 9. So viewed, the trial court while allowing the amendment application has properly exercised the jurisdiction vested under Order 6 Rule 17 CPC. There is nothing on record to suggest that the jurisdiction so vested has been exercised with material irregularity or has caused failure of justice. The civil revision is accordingly, dismissed.