Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 1640 (PNJ)

Kanta Devi v. Hargian

2014-11-27

BHARAT BHUSHAN PARSOON

body2014
JUDGMENT : Bharat Bhushan Parsoon, J. Since 16.12.2009, a suit for seeking declaration, mandatory injunction and permanent injunction filed by Smt. Kanta Devi and two of her daughters, petitioners herein, is pending adjudication before the lower court which is at the final stage of conclusion. An application was moved by the petitioner-plaintiffs under Order 6, Rule 17 CPC as also under Order I Rule 10 CPC read with Section 151 CPC for amendment of the plaint as also impleadment of another party in the suit. Two sale deeds bearing No. 4483 and 4484 of 17.8.2007 are sought to be challenged by way of amendment in the plaint, whereas suit itself had been filed much later, i.e., on 16.12.2009 and the said sale deeds could have very well been challenged in the suit itself. 2. The suit is for seeking declaration. The petitioners are the plaintiffs and they aver that they have share in the land in suit and any alienation made by the defendants are null and void and are not binding against them. The two sale deeds sought to be challenged by way of amendment in the plaint under Order 6, Rule 17 CPC also pertain to the same land, is not a matter of dispute. 3. No notice is being issued to the respondents in order to obviate delay, more so when no prejudice is likely to be caused to the respondent in view of the nature of order which this Court proposes to pass. 4. Counsel for the petitioners, citing Raj Kumar v. Kamlesh Kumari, 2012(4) Law Herald 2986, has urged that for amendment of the plaint, delay by itself is not a ground for dismissal of the same. Observations of this Court in this judgment appearing in para 10 are noteworthy and are reproduced as below :- "Case of the plaintiff is that the defendant had just started construction in the suit plot when the plaintiff filed the injunction suit for the said reason. However, since temporary injunction was not granted, the defendant raised construction in the suit plot during pendency of the suit. However, since temporary injunction was not granted, the defendant raised construction in the suit plot during pendency of the suit. The defendant in her reply (Annexure P-2) has not even specifically pleaded that the construction referred to by the plaintiff in the amendment application had been raised before the filing of the suit, although the plaintiff specifically pleaded in the amendment application that the construction had been raised during pendency of the suit. At the same time, amendment application filed by the petitioner is highly belated. However, the amendment application could not be dismissed merely on the ground of delay, for which the plaintiff could be burdened with costs to compensate the defendant-respondent." 5. In Pargat Singh v. Ranjit Singh, 2009(1) RCR (Civil) 555, a Coordinate Bench of this Court had also held that the amendment of pleadings should be allowed if no injustice is likely to be caused to the other party and the amendment is necessary for determination of the real controversy between the parties. Relevant observations made in this verdict are as under :- "3. It is settled principle of law that amendment of the pleadings should be allowed if two conditions are satisfied, namely, (a) for not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Moreover, amendment of the pleadings can be allowed at any stage of the proceedings and a fresh suit on the amended claim would cause hardship to the parties and moreover after having gone through the proposed amendment, I find that amendment sought for by the plaintiff is not only necessary to do justice but also for deciding controversy between the parties. In the instant case, the evidence is yet to be examined by the plaintiff though the case is fixed for plaintiff's evidence many a times as is evident from the impugned order passed by the trial court. 4. Without further going into the merits of the case with regard to the proposed amendment, lest it might prejudice the rights of either of the parties, to my mind, the proposed amendment in order to decide complete controversy between the parties, is necessary. In the facts and circumstances of the case, if this amendment is allowed, it would not cause injustice to the other side. In the facts and circumstances of the case, if this amendment is allowed, it would not cause injustice to the other side. Proposed amendment does not change the complexion of the suit in any manner." 6. A Coordinate Bench of this Court in Ram Chand v. Karamvir and another, 1988(1) RRR 221, had allowed amendment of plaint after 8 years holding that delay itself was no ground to refuse amendment. In para 2, it was held as under:- "2. The learned Additional District judge rejected the prayer for amendment on two grounds that it was highly belated having been made after eight years of the filing of the suit and that a new cause of action would be introduced by the proposed amendment. On none of the grounds, the amendment could be declined. It has been repeatedly held that delay by itself is no ground to disallow an amendment. The other ground given is wholly unsustainable because by no stretch of reasoning can it be said that by claiming an alternative relief, the cause of action would be changed. Neither any new facts were to be pleaded nor any evidence to be led and the alternative relief was being claimed on the facts already pleaded. The learned Additional District Judge, thus, acted illegally in the exercise of his jurisdiction in declining the prayer for amendment on wholly unsustainable grounds. This revision is, accordingly, allowed and the impugned order reversed." 7. In Suraj Parkash Bhasin v. Smt. Raj Rani Bhasin and others, AIR 1981 SC 485 , the Hon'ble Supreme Court has held that delay by itself is no ground to refuse amendment when it did not alter nature of action. In para 6 and 7 of the judgment, it was held as under :- "6. The liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while case is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretense of amendment of pleadings. The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya v. Maung Po Hnaung AIR 1922 PC 249 (250-51), P. 1283-84, CPC (1908) AIR, Vol. The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya v. Maung Po Hnaung AIR 1922 PC 249 (250-51), P. 1283-84, CPC (1908) AIR, Vol. 29th edn. All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit. 7. It follows that nothing so shocking as has been urged by the appellant's Counsel has taken place here. The plea based on partnership is neither a virgin case nor a violent departure from the originai. After all, the appellant-defendant has a full opportunity to meet the case presented by the amendment. Maybe, a variety of circumstances some of which were mentioned before us might, if successfully established, disprove the veracity of the plaintiff's case, they are matters bearing on the merits of the case, not on the tea ability of the amendment." 8. In Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (D) & Ors., 2007(3) RCR (Civil) 866, the Hon'ble Supreme Court of India had held that amendment in pleadings cannot be denied on the ground of delay particularly when the other party can be compensated by costs. Relevant para 14 thereof is reproduced as under :- "14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment." 9. To the same effect is T. Aswini Desai v. D. Koundinya (Died) by LRs, 2007(2) ALT 600 (AP) and Amarjeet Singh v. Municipal Corporation of Delhi, 1992(2) RRR 125 (Delhi). In Amarjeet Singh's case (supra), it was observed as under :- "6. The scope of amendment under Order 6, Rule 17 of the Code is well known. Bona fide amendments necessary for the purpose of determining the real question in controversy between the parties should be allowed, howsoever negligent the first omission and howsoever delayed the proposed amendment, if the opposite party can be compensated with costs or other terms to be imposed in the order. Conversely, amendment should be refused where it is not necessary for the purpose of determining the real question in controversy between the parties; is merely technical or useless or of no substance or where the plaintiff's suit will be wholly displaced or it would take away the legal right which has accrued to the defendant by lapse of time or it would introduce a totally new and inconsistent case; and the application is made at a late stage of the proceedings or the application for amendment is not made in good faith." 10. It is worth notice that respondent-defendants themselves had taken up a plea in the written statement furnished by them that the part of the said land had been sold by them vide these two sale deeds and thus the respondent-defendants were well within the knowledge of the sale deeds which are now sought to be challenged by way of amending the plaint. To be extra-cautious, the plaintiffs have also sought to implead necessary parties connected with the land sold vide these two sale deeds. These are vendees of these two sale deeds. 11. When the entire matter is viewed even independently, it becomes clear that by way of amendment in the plaint, sought by the petitioner-plaintiffs, neither cause of action is going to be changed nor the main controversy between the parties is altered. Rather, it is felt that non-joining of the parties, sought to be impleaded, as defendants and non-amendment of the plaint, would be a bottleneck in the effective and complete adjudication of the matter in controversy. 12. Consequently, application for amendment of the plaint as also for impleadment of the parties sought in the application as defendants is allowed. However, as the application has been made highly belatedly, costs of Rs. 20,000/- are imposed upon the petitioner-plaintiffs which is to be paid to the opposite party. 13. Since the case has already been delayed, service would be effected on the parties impleaded therein with expeditious dispatch and the entire suit would be decided within six months after receipt of presence of the parties. 14. The petition stands disposed of in the above terms.