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2010 DIGILAW 516 (JK)

Gian Chand v. Banti Devi

2010-10-08

Sunil Hali

body2010
1. A suit for permanent prohibitory injunction came to be filed by the respondent-plaintiff before the court of learned Munsiff, Akhnoor, restraining the defendants from dispossessing and making illegal interference into the suit land measuring 3 kanals 4 marlas falling in khasra No.276, situated at village Mawa Karora, tehsil Akhnoor. The petitioner-defendants filed written statement resisting the said suit. Thereafter, an application under Order 6 Rule 17 C.P.C., came to be filed by the petitioners seeking amendment of the written statement. The learned trial court after hearing the parties, dismissed the aforesaid application of the petitioner vide order impugned dt. 11th of Dec’08. It is this order, which is being challenged in the present petition. 2. The learned trial court has observed that the proposed amendment has been sought by the defendants after 13 years of filing the written statement by them and in case, the said amendment is allowed at this stage, this will prejudice the rights of the plaintiff. 3. Learned counsel for the petitioners submits that the learned trial court while rejecting the application for amendment has not appreciated the pleas taken in their right perspective. It is stated that the plaintiff-respondent is out of possession of the suit property and, as such, the suit is not maintainable and the matter is triable by the authorities under the Agrarian Reforms Act under Section 19 of the Agrarian Reforms Act. It is stated that with regard to the property in dispute, the decision has been given by the authority under the Agrarian Reforms Act and the matter is subjudice before the Jammu and Kashmir Special Tribunal, Jammu, and other forums, and as such, in view of Section 25 of the aforementioned Act, the learned trial court had no jurisdiction to try the suit. 4. On the other hand, learned counsel for the respondent stated that the application seeking amendment of the written statement on behalf of the petitioners has been rightly rejected by the learned trial court. It is stated that the application has been preferred as an after thought just to delay the proceedings. , It is stated that the suit was filed in Nov’94, to which written statement was filed in Dec’94. Petitioners’ evidence was closed on 25th of July’05. The application seeking amendment was filed on 3rd of Nov’07, i.e. after about 13 years of filing the written statement. , It is stated that the suit was filed in Nov’94, to which written statement was filed in Dec’94. Petitioners’ evidence was closed on 25th of July’05. The application seeking amendment was filed on 3rd of Nov’07, i.e. after about 13 years of filing the written statement. It is, thus, submitted that the petitioner, by way of filing the amendment application has only adopted a delaying tactics and this would result in nothing but hindrance in the decision of the case by the learned trial court. Placing reliance on a judgment of the Apex Court reported in AIR 1972 SC 2091 Gauri Shanker v. M/s Hindustan Trust (Pvt.) Ltd., and others, it has been urged by the counsel for the respondent that the application having been filed after such a long time, has been rightly rejected by the learned trial court on the ground of delay and laches. 5. I have heard learned counsel for the parties and perused the record. 6. As is apparent from the pleadings of the parties, the suit came to be filed by the respondent on 15th of Nov’94. The petitioners filed their written statement on 21st of Dec’94. Petitioners did not adduce any evidence and the same was closed on 25th of July’05. Thereafter vide application under Order 6 R.17 CPC, the amendment to the written statement was sought on 3rd of Nov’07, i.e. after about 13 years of filing the written statement. 7. It be noticed that vide application referred to above, the petitioners intended to brought to the notice of the court below that the respondent-plaintiff is not in possession of the suit property and the matter is liable to be pursued before the authorities under the Agrarian Reforms Act. The learned trial court, as noticed above, rejected the application of the petitioners on the ground that of delay and laches. In this regard, it be seen that amendment of pleadings by a party can be allowed by the courts in exercise of discretionary powers even after long delays if the court is of the opinion that such an amendment would be in the interest of justice and minimize the litigation. The law is, however, well settled that such a discretion has to be exercised in a judicious manner depending upon the facts and circumstances of each case. The law is, however, well settled that such a discretion has to be exercised in a judicious manner depending upon the facts and circumstances of each case. And, in case, such an amendment subserves the cause of justice and avoids further litigation, the amendment can be allowed. I am supported in this view by a judgment of the Apex Court reported in AIR 2004 SC 4102 , Pankaja and another v. Yellappa (D) by LRs and others. What has been observed in this regard by the Apex Court may be noticed as under:- "But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the Court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments? The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends `on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercise in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case." 8. It be further noticed that it is not the case of the petitioners that the facts which were pleaded in the application on the basis of which amendment was sought in the written statement came to their notice after filing of the original written statement. The factual plea regarding the non possession of the respondent plaintiff over the suit property or the fact regarding the matter to be triable by the authorities under the Agrarian Reforms Act cannot be said to be a fact which was not within their knowledge at the time of filing the written statement. Under the circumstances, it cannot be said that the petitioners with a bonafide intention filed the application seeking amendment of the written statement. 9. Under the circumstances, it cannot be said that the petitioners with a bonafide intention filed the application seeking amendment of the written statement. 9. It be further noted that amendment of pleadings can be allowed which are necessary for the purpose of determining the real controversy. This is, however, subject to the condition that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. In case, the proposed amendment causes such prejudice to the other side which cannot be compensated by costs or in case such an amendment is sought by a party at a belated stage just to defeat the legal right accrued to the other party, then, such amendment should not be allowed. Reliance in this regard may be placed on a judgment of the Apex Court in the case reported in AIR 2000 SC 614 , B.K.N. Pillai v. P.Pillai and another. The observations made in this regard by the Apex Court be noticed as under: - "All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original list was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time." 10. In the present case, the petitioners as noticed above have filed the amendment application after about 13 years of filing their written statement. In case, the said amendment at this stage is allowed, this will prejudice the right accured in favour of the respondent and would further lead to multiplicity of litigation. 11. The learned trial court, thus, in my view, rightly exercised its discretion in not allowing the amendment sought by the petitioners after such a belated stage. For the reasons mentioned above, this petition is found to be without merit and is dismissed.