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2011 DIGILAW 491 (JK)

Badri Nath v. Banti Devi & ors.

2011-09-14

MANSOOR AHMAD MIR

body2011
This revision is directed against the order dated 14.11.2006 passed by City Judge, Jammu in a suit titled as Badri Nath vs Bindroo, whereby permission sought by the plaintiff-petitioner to amend the suit was rejected (for short, impugned order). Plaintiff-petitioner herein has filed a suit for permanent prohibitory injunction restraining the defendant from obtaining the compensation of land measuring 10 kanals 15 marlas falling under Khasra No.434 situate at Village Manda, Tehsil Akhnoor-suit property on the grounds taken in the plaint. Trial court dismissed the suit vide judgment and decree dated 22.1.2003, was the subject matter in civil first appeal before 1st Addl. District Judge, Jammu, came to be allowed and case was remanded back to the trial court for framing additional issues, came to be questioned by the defendant before this Court and was upheld. Plaintiff-petitioner herein moved an application for amendment and sought permission to add following relief: “In the title of the suit, the following may be added: Suit for declaration that plaintiff has become owner of land measuring 10 kanals 15 marlas underlying khasra No.434 situated at Village Manda, Tehsil Akhnoor and District Jammu by way of prescription and execution of Agreement to Sell dated 26.03.1979 by defendant and his possession qua the land is hostile, open and adverse to the defendant till the same was taken over by the army authorities from the plaintiff in the month of December 1992. After prayer of permanent prohibitory injunction, the following words be added after 8 kanals 15 marlas gher-mumkin-khad. “In respect of which Agreement to Sell dated 26th March, 1979 has already been executed by the defendant in favour of the plaintiff, thereby surrendering all his ownership and possessory rights qua the land in favour of the plaintiff.” Defendant-Bindroo resisted the same on the ground that the proposed amendment is misconceived, belated, barred by limitation and also hit by doctrine of estoppel. Defendant also resisted the application on the ground that the plea of adverse possession is not available to the plaintiff. Trial court-City Judge, Jammu while dismissing the application vide the impugned order has held that the amendment sought was barred by time and pleas sought to be introduced are totally inconsistent to the original plaint. Defendant also resisted the application on the ground that the plea of adverse possession is not available to the plaintiff. Trial court-City Judge, Jammu while dismissing the application vide the impugned order has held that the amendment sought was barred by time and pleas sought to be introduced are totally inconsistent to the original plaint. The moot question for consideration is whether the application for amendment can be refused on the ground of plea of limitation or that the pleas taken are inconsistent to the original averments contained in the plaint. The reply is negated for the following reasons. The purpose of granting leave to amend is to minimize the litigation. Whether the relief sought by way of amendment was barred by time or hit by doctrine of Order 2 Rule 2 of Code of Civil Procedure or whether the pleas are inconsistent are the matters to be gone through in the main suit, cannot be a ground for refusing the permission to amend. Keeping in view para 2, 3 and 5 contained in the application for amendment read with the averments contained in the main plaint, the permission was to be granted and the defence taken by the defendant that the relief sought was barred by time or averments contained in the application for amendment are contrary and inconsistent to the averments contained in the plaint, can be set up as ground(s) by the defendant in the written statement. The Apex Court in Raghu Thilak D. John vs S. Rayappan, 2001 (2) SCC 472 laid down the same principle. It is apt to reproduce para 5 & 6 herein: “5. After referring to the judgments in Charan Das v. Amir Khan, L.J. Leach & Co. Ltd. v. Jardine Skinner & Company, Ganga Bai v. Vijay Kumar, Ganesh Trading Co. v. Moji Ram and various other authorities, this Court in B.K. Narayana Pillai v. Parameswaran Pillai held: (SCC p.715, para 3) "3.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. 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. 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. 6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise 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 paras 8(a) to 8(f) of the plant 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.” The Apex Court in case titled Rajesh KumarAggarwal vs K.K. Modi, (2006) 4 SCC 385 has held that general rule is to allow all amendments that may be necessary for determining the real questions between the parties and while considering whether an application for amendment should or should not be allowed, the court should not go into correctness or falsity of the case in the amendment and it should not record findings on merits of the amendment. The Apex Court in Pankaja v. Yellappa, AIR 2004 SC 4102 has held that amendment in plaints can be granted even after substantial delay. It is apt to reproduce para 13 & 14 herein. “13. The Apex Court in Pankaja v. Yellappa, AIR 2004 SC 4102 has held that amendment in plaints can be granted even after substantial delay. It is apt to reproduce para 13 & 14 herein. “13. 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 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? 14. 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 exercised 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.” Keeping in view the averments contained in the main plaint and the relief sought read with the averments contained in the application to amend, I am of the considered view that the trial court has fallen in error in rejecting the application vide the impugned order. Having glance of the above discussion, permission to leave sought by the plaintiff to amend the plaint was to be granted and the grounds taken by the defendant can be taken as defence(s) in the written statement. Accordingly, this revision petition is allowed and the impugned order is set aside. The amended plaint be taken on record. Defendants-respondents herein to file written statement before the trial court by or before the next date of hearing. Parties through their counsel are directed to cause their appearance before the trial court on 20th September 2011. Trial court to conclude the trial within six months. Send down the record along with a copy of this order.