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2010 DIGILAW 822 (MP)

Ratna Shrivastava v. M. M. Bhargava

2010-08-12

J.K.MAHESHWARI, K.K.LAHOTI

body2010
ORDER 1. Heard. 2. This petition is directed against an order dated 8-3-2010 by 6th Civil Judge, Class I, Jabalpur, in Civil Suit No. 64-A/2009 between the parties by which an application filed by the Plaintiff/Respondent under Order 6 Rule 17, Code of Code of Civil Procedure was allowed and the Respondent/Plaintiff was permitted to amend relief clause by inserting following relief: vacant possession of the plot after demolition of the construction. The Petitioner assailed the order on the following grounds: (i) That the suit was filed on 5-11-2001 and on 9-12-2001, the Commissioner inspected the spot and found that construction of the Petitioner was already complete and the application was filed after 9 years of filing of the Commissioner's report. The Plaintiff earlier moved an application under Order 6 Rule 17, Code of Code of Civil Procedure on 8-11-2006, but in that application also no relief for possession was prayed. (ii) It is submitted that the amendment was barred by limitation. He has referred Article 113 of the Limitation Act in support of his contention that after accruing cause of action, the amendment has been sought after 9 years while it ought to have been made within 3 years from the date of accruing cause of action. Petitioner has placed reliance to a judgment of the Apex Court in Vidyabai v. Padmalatha, AIR 2009 SC 1433 , in support of his contention. 3. Shri Gupta, learned Counsel for Respondent/Plaintiff supported the order. It is submitted by Shri Gupta, that the suit was filed on 5-11-2001 and during pendency of the suit, in spite of an undertaking given by the Defendants, construction was raised for which a specific relief has been prayed by way of amendment for vacant possession of the plot. It is submitted by Shri Gupta that aforesaid amendment was necessary for the just decision of the case and the Trial Court rightly allowed the amendment. He has placed reliance to a judgment of the Apex Court in Ragu Thilak D. John v. S. Rayappan and Ors. AIR 2001 SC 699 , in support of his contention. 4. From the perusal of the record, it appears that a suit has been filed for declaration, perpetual injunction and mandatory injunction against the Petitioner and the Respondent No. 2. AIR 2001 SC 699 , in support of his contention. 4. From the perusal of the record, it appears that a suit has been filed for declaration, perpetual injunction and mandatory injunction against the Petitioner and the Respondent No. 2. The relief Clause 14(a) to (e) is relevant and can be referred profitably to decide the controversy between the parties, which reads as under: 14. That the Plaintiff is entitled for a legal decree against Defendants for the following reliefs: (a) That a decree be passed in favour of the Plaintiff that the Defendants or any other person is not entitled to interfere in the possession of the plot for which details are given in Para 1 of the plaint which belongs to ownership and possession of the Plaintiff. (b) That a mandatory injunction be issued against Defendants restraining them to raise the construction and to restore the possession of plot by issuance of mandatory injunction. (c) That perpetual injunction be issued against the Defendants not to interfere in the possession, raise construction over the plot. (d) That cost be allowed. (e) That any other relief which this Hon'ble Court deems fit be allowed to the Plaintiff. 5. The Plaintiff has prayed amendment in relief clause in which he has sought amendment that the 'vacant possession after demolition of the construction' be permitted to be inserted in Para 14(b). In Para 14(b) of the relief clause, the Plaintiff had already sought relief of mandatory injunction against the Defendants for restraining them to raise illegal construction and to restore the possession of the plot by issuance of mandatory injunction. A specific relief was prayed by the Plaintiff for the mandatory injunction in this regard and by way of amendment, aforesaid relief has been made specifically for restoring possession of the plot in favour of the Plaintiff by removing the construction raised by the Defendants. Though it is disputed by the Defendants that construction was raised during pendency of the suit, as before filing of the suit it was completed, while the averments in the application are that this construction was raised by the Defendants during pendency of the suit. However, it is a matter of evidence which is to be decided by the Trial Court after recording evidence of the parties. 6. However, it is a matter of evidence which is to be decided by the Trial Court after recording evidence of the parties. 6. Though it is true that the evidence of the Plaintiff is over and the Defendants' evidence is to commence in the case and as per proviso to Rule 17 of Order 6, Code of Civil Procedure, after commencement of the trial normally such an amendment cannot be allowed, but the Apex Court has made the position clear in State Bank of Hyderabad v. Town Municipal Council (2007) 1 SCC 765 , that the amended proviso to Order 6 Rule 17, Code of Code of Civil Procedure inserted with effect from 1-7-2002 is not applicable in the cases which are filed before 1-7-2002. In the light of the aforesaid judgment, contention of the Petitioner that after commencement of the trial, such amendment could not be allowed is found without merit. 7. By the aforesaid amendment, the Plaintiff is amending relief clause specifically that possession of the plot be restored to the Plaintiff by removing construction raised by the Defendant's. Though in Para 14(b) of the plaint, in relief clause, the Plaintiff has already prayed for a mandatory injunction against Defendants, but to make the relief specific, such amendment if made, no fault is found. So far as contention of the Petitioner that on the date of filing of the application, such relief was barred by limitation is concerned, he has placed reliance to Article 113 of the Limitation Act. For ready reference, Article 113 of the Limitation Act is quoted which reads as under: 113. Any suit for which no period of limitation is provided elsewhere in this schedule. Three years When the right to sue accrues 8. Aforesaid Article is residuary Article and is not application in the present case. The suit was based on title. Article 65 of the Limitation Act will be applicable in the present case by which limitation of 12 years is provided from the date when possession of the Defendants became adverse. Prima facie aforesaid amendment was not barred by limitation, so contention of the Petitioner that the amendment was sought after period of limitation, is also repealed. However, the Defendants can raise a plea of limitation in the written statement by way of consequential amendment and if raised, it shall be considered by the Trial Court. 9. Prima facie aforesaid amendment was not barred by limitation, so contention of the Petitioner that the amendment was sought after period of limitation, is also repealed. However, the Defendants can raise a plea of limitation in the written statement by way of consequential amendment and if raised, it shall be considered by the Trial Court. 9. The Apex court in Ragu Thilak D. John (supra), considered the legal position in respect of allowing the amendment and referring to earlier judgment of the Apex Court in B.K.N. Pillai v. P. Pillai AIR 2000 SC 614 , made the position clear in Para 5: The purpose and object of Order 6, Rule 17, Code of Code of Civil Procedure 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 prayer should not adopt hypertechnical approach. Liberal approach should be the general rule particularly to 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. 10. In the case, the Defendants allegedly raised the construction during pendency of the suit, Plaintiff is entitled for a decree of possession against the Defendants. Apart from this, it is stated by the Plaintiff/Respondent that an undertaking was given by the Defendants in this regard, but in spite of this, construction was raised. However, all these facts are to be seen by the Trial Court in the trial. But from the perusal of amendment application, it appears the amendment was necessary for the just decision of this case. By inserting amendment, nature of the suit is not changed. On the contrary, relief 14(b) has become very specific by allowing such amendment. 11. However, all these facts are to be seen by the Trial Court in the trial. But from the perusal of amendment application, it appears the amendment was necessary for the just decision of this case. By inserting amendment, nature of the suit is not changed. On the contrary, relief 14(b) has become very specific by allowing such amendment. 11. In view of the aforesaid, we do not find any error in the impugned order passed by the Trial Court warranting our interference under Article 227 of the Constitution of India. This petition is found without merit and is dismissed with costs.