Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1669 (HP)

Santosh Kumar v. Vijay Ram

2014-11-18

RAJIV SHARMA

body2014
JUDGMENT : RAJIV SHARMA, J. 1. This petition is instituted against the order dated 5.12.2013 rendered by Civil Judge (Senior Division), Kinnaur District at Reckong Peo. 2. “Key facts” necessary for the adjudication of this petition are that plaintiff-respondent (hereinafter referred to as the “plaintiff” for convenience sake) has filed a suit for declaration against the petitioners-defendants (hereinafter referred to as the “defendants” for convenience sake). The suit was contested by the contesting defendants by filing written statement. According to the defendants, a “will” was executed by deceased Amber Sukh on 19.2.1994 in their favour. They have become absolute owner on the basis of same. Mutation was attested in their favour on 1.9.1994. 3. Plaintiff filed an application under order 6 rule 17 of the Code of Civil Procedure seeking amendment of the plaint by inserting new paras in the plaint. According to the averments contained in the application, State Government has acquired land for construction of the border road. Award No.03/12 was passed on 12.6.2012 by the Land Acquisition Collector, Sub Division Kalpa at Reckong Peo. A sum of Rs. 83,63,739/- has been awarded in favour of the defendants. The payment was duly deposited in the bank. Plaintiff sought to raise the plea that defendants were not entitled to amount of compensation and the decree for permanent prohibitory injunction was also sought seeking to restrain defendants from spending the award amount. Application was contested by the defendants. Learned trial court allowed the application on 5.12.2013. Hence, the present petition. 4. Mr. Neeraj Gupta learned counsel for the defendants has vehemently argued that plaintiff has the remedy under section 31 of the Land Acquisition Act, 1894 (herein after referred to as ' Act' for brevity sake). 5. Mr. B.S. Chauhan, learned counsel appearing on behalf of plaintiff has strenuously argued that defendants have rightly availed the remedy by filing a suit. According to him, amendment in the plaint would avoid multiplicity of litigation. 6. I have heard the learned counsel for the parties and have perused the impugned order dated 5.12.2013 carefully. 7. What emerges from the facts enumerated hereinabove is that plaintiff has instituted a suit against the defendants. Case of the defendants precisely is that they have become absolute owner on the basis of “will” executed by Amber Sukh on 19.2.1994. The mutation was also attested in their favour. 7. What emerges from the facts enumerated hereinabove is that plaintiff has instituted a suit against the defendants. Case of the defendants precisely is that they have become absolute owner on the basis of “will” executed by Amber Sukh on 19.2.1994. The mutation was also attested in their favour. However, fact of the matter is that land was acquired by the State Government for the construction of border road. Award was passed on 12.6.2012. A sum of Rs. 83,63,739/- has been awarded in favour of the defendants. Plaintiff wanted to amend para 5 of the plaint by adding the following lines: “In fact, the mother of defendants No.1 and 2 was earlier married to one Sh. Vidyapur of Village Jangi and after the death of Vidyapur she was remarried with Sh. Kirpa Ram father of defendants No.1 and 2 at village Rarang, District Kinnaur and was residing there.” 8. He also wanted to amend para 6 of the plaint by adding the followings word: “alienation and also restraining from spending the awarded amount of Rs. 83,63,739/- in any manner whatsoever and in case they are not restrained from spending the awarded amount, then in that event the very purpose of filing of the present suit would be defeated.” 9. He further wanted to amend para V of the prayer clause by adding the following words: “alienating and spending the awarded amount in any manner by issuance of permanent prohibitory injunction and substituted the word “Mandate” by adding the words “Permanent prohibitory injunction.” 10. The underlined principle to allow amendments to the pleading is definitely to avoid multiplicity of litigation. In the instant case, plaintiff has exercised due diligence while preferring an application for amendment of the plaint. The award has been made after the suit was instituted on 13.9.2009. The award No.03/12 was rendered on 12.6.2013. The amendment was necessary for the adjudication of the real controversy involved between the parties. The awarded amount has already been disbursed to the defendants. The plaintiff was not party before the Land Acquisition Collector. He did not know about the proceedings pending before the Land Acquisition Officer. The application cannot be termed to be filed belatedly. Defendants have also been duly compensated by awarding costs of Rs. 1,000/-. 11. There is no merit in the contention of Mr. Neeraj Gupta that plaintiff could take recourse under section 31 of the Act. 12. He did not know about the proceedings pending before the Land Acquisition Officer. The application cannot be termed to be filed belatedly. Defendants have also been duly compensated by awarding costs of Rs. 1,000/-. 11. There is no merit in the contention of Mr. Neeraj Gupta that plaintiff could take recourse under section 31 of the Act. 12. Section 31 of the Act reads as under: “31. Payment of compensation or deposit of same in Court: (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has Received the amount otherwise than under protest shall be entitled to make any application under section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. (3) Notwithstanding anything in this section, the Collector may, with the sanction of 1[appropriate Government] instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. (4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.” 13. (4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.” 13. Division Bench of Bombay High Court in Shri Deo Sansthan Chinchwad and others vs. Chintaman Dharnidhar Deo and another, AIR 1962 Bombay 214 has held that claim of person entitled to share in compensation if not adjudicated upon in land acquisition proceedings, separate suit by such person to recovery his share from person who has received compensation is competent. The Division Bench has held as under: “(12) As against Mr. Jahagirdar's contention, it was urged by Mr. Chitale, learned advocate appearing on behalf of the respondents, that the suit would be competent because apportionment proceedings are entirely separate proceedings and would require a separate notice to person interested in the compensation money. In this connection, he relied on the decision of the Calcutta High Court in Hurmitian Bibi v.padma Lochun Das, ILR 12 Cal 33, where it was held that the apportionment of the compensation under Section 39 of Act X of 1870 is intended to be proceeding distinct from that of settling the amount of compensation under the previous provisions of the Act, and any dispute as to the apportionment is only decided as between those persons who are actually before the Court. A separate notice, therefore, of the apportionment proceedings is requisite to bind any person by those proceedings, and where such a noticee has not been served, any party interested, although served with the notice of the proceedings for setting the amount of the compensation, cannot be considered a party to the proceedings for apportioning it, and is not barred, by the decision of the latter proceedings, from bringing a suit under the proviso to Section 40, to recover a share of the money so apportioned. We do not think it is necessary to deide whether a separate notice of the apportionment proceedings would be required because admittedly in the present case there have been no apportionment proceedings. Mr. We do not think it is necessary to deide whether a separate notice of the apportionment proceedings would be required because admittedly in the present case there have been no apportionment proceedings. Mr. Chitale further contended that even assuming that plaitiff No. 1 had notice of the acquisition proceedings in his capacity as a chief trustee, a separate notice should have been given to him since it must have been known to the Revenue authorities that he had an interest in a private capacity in the village vasul to the extent of Rs. 417-4-0. We do not think it is necessary to decide this question either for the purpose of the present appeal. Mr. Chitale has also invited our attention to the Privy Council decision in Ramchandra Rao v. Ramchandra Rao, 24 Bom LR 963: ( AIR 1922 PC 80 ), where it was held that the Land Acquisition Act of 1894 contemplated two separate and distinct forms of procedure, one for fixing the amount of compensation described as the award, and the other, for determining in case of dispute the relative rights of the persons entitled to the compensation money. Any dispute as to relative rights of persons entitled to receive compensation money is settled by litigation in the ordinary way. It was further held in that case that the decision of a competent Court even in proceedings under the Land Acquisition Act would operate as res judicata and the same question cannot be reopened in a subsequent litigation between the same parties. That case, it is true, is also distinguishable on facts. In the present case, the question of apportionment of the compensation amount appears tohave been altogether lost sight of by the Land Acquisition authorities despite entries in the Record of Rights. When the plaintiffs applied to the Collector for their share in the compensation money, the amount had been already paid to the Sansthan and the Collector does not appear to have acted under any of the provisions of the Land Acquisition Act. He merely asked the plaintiffs to apply to the Sansthan for their share in the compensation amount and, in case of refusal, to file a suit to recover the same. Mr. Chitale contends that in these circumstances, in view of the third proviso to Section 31(2) of the Land Acquisition Act, the suit filed by the plaintiffs would be maintainable. He merely asked the plaintiffs to apply to the Sansthan for their share in the compensation amount and, in case of refusal, to file a suit to recover the same. Mr. Chitale contends that in these circumstances, in view of the third proviso to Section 31(2) of the Land Acquisition Act, the suit filed by the plaintiffs would be maintainable. In our judgment, there is considerable force in this argument. Under the thrid proviso to Section 31(2) of the Act, nothing contained in subsection (2) shall affect the liability of any person who may receive the whole or any part of any compensation awarded under the Act, to pay the same to the person lawfully entitled thereto. Unless, therefore, the claim of such a person, who is lawfully entitled to a share in the compensation money, is already adjudicated upon under the provisions of the Land Acquisition Act or such person having had notice to such proceedings, appears therein and fails to assert and prosecute his claim to a share in accordance with the provisions of that Act, he would be entitled to file a suit to recover his share from the person who may have received the whole or any part of the compensation amount awarded under the Act. We must, therefore, reject Mr. Jagirdar's contention that the suit is not maintainable as plaintiffs did not get their claim adjudicated upon under the provisions of the Land Acquisition Act.” 14. Learned Single Judge of Punjab and Haryana High Court in Jog Raj and another v. Banarsi Dass and another, AIR 1978 Punjab and Haryana 189 has held that where there is a dispute regarding the apportionment of the amount of compensation and the Collector makes payment to one of the claimants, the other claimant can recover his share of the amount of compensation from the claimant who has been paid the amount by filing a civil suit. Learned Single Judge has held as under: “7. Mr. G. C. Mittal, in support of his contention, referred to Hemanta Kumar Banerjee v. Satish Chandra Banerjee, AIR 1941 Cal 635, wherein it was observed that last proviso to S. 31(2) contemplates civil suit. It does not create right to get refund but merely recognises right existing independently of the section. He also referred to Shri Deo Sansthan Chinchwad v. Chintaman Dharnidhar Deo. AIR 1962 Bom 214 , wherein similar observations were made. It does not create right to get refund but merely recognises right existing independently of the section. He also referred to Shri Deo Sansthan Chinchwad v. Chintaman Dharnidhar Deo. AIR 1962 Bom 214 , wherein similar observations were made. There cannot be any dispute that a suit is maintainable for recovery under proviso to S. 31(2). But it is not the only remedy. I am of the view that both the remedies for recovery of such amounts are open and it is for the party concerned to choose either of them. 13. On the merits, I have also examined the matter, I have already held above that two courses were open to the tenants--firstly they could file an application before the Additional District Judge for making payment to the landlord out of the enhanced amount after taking into consideration the amount already paid by the Collector and to pay the balance to them and secondly to file a suit for recovery of their share out of the amount paid by the Collector to the landlord. They adopted the first course to which they were entitled to. For the aforesaid reasons, I do not find any fault with the judgment of the Additional District Judge and confirm the same.” 15. The Division Bench of Punjab and Haryana High Court in Karnail Singh v. Jagir Singh, AIR 1984 Punjab and Haryana 294 has held that the suit for recovery for compensation amount is maintainable. The Division Bench has held as under: “7. SECTION 31 has been interpreted by the Supreme Court So Dr. G. H. Grant v. State of Bihar AIR 1966 SC 237 . J. C. Shah, J., speaking for the majority observed as follows (at p. 244):-- "In, determining, the, court, of,, amount of compensation: which may be offered, he has, it is true, to apportion the, amount-of compensation between the persons known or believed to. be interested in the land, of whom. or of whose claims, he has information. whether or not they have appeared before him,. But the scheme, of. apportionment by the Collector. does trot finally. determine the rights of the Persons interested in. the. amount of compensation: the. award. is only conclusive. between the Collector and the persons interested. and not among the persons interested. The Collector has no power. to finally adjudicate, upon the title to compensation:. that dispute,. has to he decided other in. apportionment by the Collector. does trot finally. determine the rights of the Persons interested in. the. amount of compensation: the. award. is only conclusive. between the Collector and the persons interested. and not among the persons interested. The Collector has no power. to finally adjudicate, upon the title to compensation:. that dispute,. has to he decided other in. a reference 1 under SC GB 18. or. under SECTION 30-or in a "separate suit. Payment at compensation. therefore. '"under SECTION. 31 to. the, person declared by the away' ' to be entitled thereto discharges the State of 1", liability. to pay compensation (subject to any modification by the Court leaving. it open-to the. claimant to compensation to under 29 state: his., right in g reference.. under. SECTION 30 or by a separate suit.,,." From the above observations, it. is clear that the award i final so far as the Collector. and the persons in interested. are concerned,. but it, is. not, so., among the persons. contested 1 the land. The Persons. 1 interested can get. their dispute solved together by asking the Collector to make i. referred Under SECTION. 18, pee, of this. Act or by-a separate.. suit. The same view had been expressed earlier in Hemanta Kumar Banerjee y Satish Chanda Banerjee,' AIR'. 1941 Cal 635. Hitkarini Sabha v., Jabalpftr Corporation, AIR 1958 Madh Pra 339, and Shri Deo Sansthan Chinchwad V. Chintaman Phamidhar 1 AIR 1962 BQM 214.)eo, Similar mat r came Up before me were. while sitting. in single Bench. in Jog. Rai v. Benars Dass., (1978) 80 Pun LR @258., AIR 1978 Punj & Har 189). 1 also took same view and held, that a suit. is.for re maintainable covers of an amount under proviso to SECTION 31(2) of the Act.” 16. Learned Single Judge of Delhi High Court in Hira Singh (deceased by LRs v. Smt. Sahini and others, AIR 1987 Delhi 168 has held that suit seeking recovery of compensation from person who received it is maintainable. Learned Single Judge has held as under: “10. There is no dispute to the fact that Khasra No. 932 was acquired by the Government vide award No. 1691 dt. Mar. 23, 1964 announced on Mar. 31, 1964, Khasra No. 932 was placed in Block 'B’ and compensation thereof was assessed at Rs.1,500/- per bigha. Learned Single Judge has held as under: “10. There is no dispute to the fact that Khasra No. 932 was acquired by the Government vide award No. 1691 dt. Mar. 23, 1964 announced on Mar. 31, 1964, Khasra No. 932 was placed in Block 'B’ and compensation thereof was assessed at Rs.1,500/- per bigha. At the time of the announcement of the award, Shri Fateh Singh was the recorded owner/ person interested. No application has been made for apportionment of compensation by any person under S. 18 of the said Act. It is not the case of the appellant that Surat Singh had received any notice of apportionment of compensation. The consensus of judicial opinion is that where a claim of a person entitled to compensation is not adjudicated upon in the land acquisition proceedings, separate suit by such person to recover his share from person who had actually received compensation is competent. Reference may be made to the decision of the Privy Council in TB Ramchandra Rao v. ANS Ramchandra Rao. AIR 1922 PC 80 . It was held that Land Acquisition Act contemplated two separate and distinct forms of procedure, one for fixing the amount of compensation described in the award, and the other, for determining in case of dispute the relative rights of persons entitled to receive compensation money. Any dispute as to the relative rights of persons entitled to receive compensation money may be settled by litigation in the ordinary way. This is the effect of the third proviso to S. 31 (2) of the Act. The claim of Surat Singh has not been determined or adjudicated upon under the provisions of the Land Acquisition Act. He is entitled to file a suit to recover his share from the person who has actually received the amount of compensation awarded under the Act. I, therefore, find no merit in the second submission of the counsel for the appellant.” 17. Learned Single Judge of Orissa High Court in Shantibala alias Shantilata Dei vs. Krushna Chandra Samantaray and others, AIR 2004 Orissa 9 has held that decree for recovery can be passed against person wrongfully receiving compensation and against State jointly and severally. Learned Single Judge has held as under: 13. Learned Single Judge of Orissa High Court in Shantibala alias Shantilata Dei vs. Krushna Chandra Samantaray and others, AIR 2004 Orissa 9 has held that decree for recovery can be passed against person wrongfully receiving compensation and against State jointly and severally. Learned Single Judge has held as under: 13. The third proviso from the above quoted provision of law provides that a person if receives compensation amount though legally not entitled to the same, then he is liable to pay the same to the person who is lawfully entitled to the same. The said provision ipso facto does not disentitles the looser of the land or forbids him to claim the relief of recovery of compensation amount jointly and severally from the State as well as the person who has received it wrongly. On the other hand, while adjudicating a dispute of the present nature Court should take into consideration all relevant facts and evidence and circumstances leading to payment by the Land Acquisition Officer to a wrong person and to decide if the circumstance available on record are sufficient to exonerate the State or to pass a decree for recovery jointly and severally. 14. In the above context, this Court finds no relevancy of the ratio in the case of Secretary of State for India, AIR 1924 Mad 521 (Supra) and Shri Deo Sansthan, Chinchwad, AIR 1962 Bom 214 (supra). In the case of State v. Smt. Sugandhi, AIR 1980 Madh Pra 19 (supra), learned Judges of the Division Bench of Madhya Pradesh High Court have judiciously consider such a contention and have stated that (Para 25 of AIR) :-- "As to the fourth point, normally the State is not a necessary or a proper party to a suit for recovery of compensation alleged to have been paid to a wrong person. Having paid the amount after the award was made, to a person who came forward to claim it, the State should normally stand absolved from the liability. The person who ought to have received the compensation for reason of his better title has his remedy against the person to whom the money has been wrongly paid. Third proviso to Section 31(2) of the Land Acquisition Act saves such a right to the person lawfully entitled to compensation, to claim the same from the person to whom the amount has been wrongly paid. Third proviso to Section 31(2) of the Land Acquisition Act saves such a right to the person lawfully entitled to compensation, to claim the same from the person to whom the amount has been wrongly paid. There are, however, authorities for the proposition that where the Collector has shown negligence in paying to a wrong person (such negligence as would be actionable), the Collector should be asked to pay again. It is not right, the authorities say, that the Government should throw on a party whose property it has compulsorily acquired, the risk and burden of recovering the compensation from someone to whom the Government has wrongly paid it. (See K.N.K.R.M.K. Chattyat Firm v. Secy. of State, AIR 1933 Rang 176, Deputy Collector, Cocanada v. Maharaja of Pittapur, (1926) ILR 49 Mad 519 : AIR 1926 Mad 492 (1)." However, in that reported case learned Judge did not find want of bona fide in the conduct of the Land Acquisition Officer and therefore declined to pass a decree jointly and severally. 15. From the foregoing discussions this Court finds that law does not prohibits grant of a decree jointly and severally. Evidence on record i.e. Ext. 4 and oral evidence adduced from the side of the plaintiff goes to show that the Land Acquisition Collector did not act bona fide while hastily made payment of half of the compensation amount to defendant No. 1 notwithstanding a protest raised from plaintiff's side disputing to such rights of defendant No. 1. Defendant No. 4 has not been able to prove on record that such payment was made to defendant No. 1 after due enquiry or in the absence of any protest or resistance from any quarter. Thus the evidence on record does not protect the defendant No. 4 against a decree. 16. The trial Court has also committed another mistake by granting a decree of the claimed amount in favour of the plaintiff. Fact remains that plaintiff is entitled to the proportionate compensation to the extent she lost from the purchased lands and if that comes within the half share of her vender. It is also stated at the Bar that plaintiff has also received compensation for acquisition of remaining portion from the disputed plot. There is no clear and cogent evidence available on record in that respect. It is also stated at the Bar that plaintiff has also received compensation for acquisition of remaining portion from the disputed plot. There is no clear and cogent evidence available on record in that respect. Therefore, while passing a decree for recovery of the compensation amount by the plaintiff jointly and severally from the defendant to Nos. 1 and 4, it is ordered that plaintiff is entitled to recover such amount proportionate to the extent of land lost by her from out of that Ac. 0.210 decimals. If the loss of the land sustained by the plaintiff is for more than 50% of the land acquired under that Notification then also her claim shall remain confined only to 50% of the compensation amount determined under the concerned acquisition proceeding inasmuch as she has not claimed for any further compensation for loss of such land. If the loss of the land by her is for any lessor area then decree shall be passed proportionately for a lesser amount. While modifying the judgment and decree of the trial Court accordingly the trial Court is directed to determine that aspect to pass a decree for a certain amount. 17. It appears from Ext. 4 i.e., the Award passed in Land Acquisition Case No. 51 of 1969 that the Land Acquisition Collector had been directed to determine the above aspect for payment of proportionate compensation to the plaintiff. There is nothing on record to indicate that the Land Acquisition Collector undertook any follow up action to comply with such direction in that Award. There has been a gap of about three decades and as yet plaintiff is to get the compensation amount which is her legitimate due. Statutory interest in such a case is inadequate relief against the financial loss and damage due to non-availability of such money at her disposal. Therefore, it will be appropriate for the defendant No. 4 to get the proportionate compensation determined, if not already done, expeditiously and if possible to make payment of the same as per that Award (Ext. 4). Unless the defendant No. 4 shall attend to that job sincerely, then the trial Court while determining the amount of compensation which the plaintiff is entitle to recover shall also allow appropriate amount towards damage as against the defendants jointly and severally. 4). Unless the defendant No. 4 shall attend to that job sincerely, then the trial Court while determining the amount of compensation which the plaintiff is entitle to recover shall also allow appropriate amount towards damage as against the defendants jointly and severally. In the result, the appeal is allowed and the decree of the Court below stands modified in the following manner :-- (a) Plaintiff is entitle to a money decree jointly and severally against defendant Nos. 1 and 4 for the compensation amount which shall be proportionate to the land lost by her under the concerned Notification but in any case such amount shall not exceed the amount of compensation claimed in the suit. (b) It will be appropriate and desirable for the defendant No. 4 to verify and determine the amount of such compensation which plaintiff should get and if possible to pay the same expeditiously and in the interest of equity and justice. (c) Notwithstanding the proceeding direction to defendant No. 4 the trial Court shall take further evidence, if any, adduced by the parties or any of them to determine the amount for which the decree shall be passed and at that stage looking to the conduct of the defendant No. 4 trial Court shall determine if any amount shall be awarded towards damage and if so, the quantum thereof. For that limited purpose the case be regarded as remanded. (d) Hearing-fee is assessed at contested scale and the defendants/respondents 1 and 4 jointly and severally bear the cost all throughout. 18. Learned Single Judge of Karnataka in Kempoji Rao v. Special Land Acquisition and Estate Officer, AIR 2008 Karnataka 54 has held that if payment is made to a person other than actual owner, owner is required to proceed and claim reimbursement from recipient. Learned Single Judge has held as under: “11. That apart, payment under section 31 of the Act even as indicated in the provision is not conclusive if a person entitled for payment has not received compensation but some other person has claimed it as original petition and the entitlement of the proper person to receive or claim reimbursement from the recipient is kept open under the very provision and that cannot be achieved in a proceeding of this nature but has to be independently.” 19. In the instant also, the plaintiff has an independent right to recover the amount from the defendants by seeking amendment of the plaint. The award has been made after the filing of the suit. It would avoid multiplicity of litigation. The relief sought for by the plaintiff could not be decided under section 31 of the Act. It is required to be independently determined in a properly instituted suit. The basic structure of the suit has not been changed. No prejudice has caused to the defendants. The trial court was bound to take into consideration subsequent developments, i.e. award made by the Land Acquisition Officer, in order to shorten the litigation. 20. Their Lordships of the Hon'ble Supreme Court in Sampath Kumar vs. Ayyakannu and another, (2002) 7 SCC 559 have held that only such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties should be permitted to be made. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the latter case the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. Their Lordships have held as under: “9. Order 6 rule 17 of the CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” 21. Their Lordships of the Hon'ble Supreme Court in Rajesh Kumar Aggarwal and others vs. K.K. Modi and others, (2006) 4 SCC 385 have held that the object of order 6 rule 17 of the Code of Civil Procedure is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The court always should amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The court should also take notice of subsequent events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice. Their Lordships have held as under: “15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 17. 16. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. 20. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. 20. We shall now consider the proposed amendment and to see whether it introduces a totally different, new and inconsistent case as observed by the Hon'ble Judges of the Division Bench and as to whether the application does not appear to have been made in good faith. We have already noticed the prayer in the plaint and the application for amendment. In our view, the amendment sought was necessary for the purpose of determining the real controversy between the parties as the beneficiaries of the Trust. It was alleged that respondent No.1 is not only in exclusive possession of 57,942 shares of GPI and the dividend received on the said shares but has also been and is still exercising voting rights with regard to these shares and that he has used the Trust to strengthen his control over GPI. Therefore, the proposed amendment was sought in the interest of the beneficiaries and to sell the shares and proceeds invested in Government bonds and or securities. A reading of the entire plaint and the prayer made thereunder and the proposed amendment would go to show that there was no question of any inconsistency with the case originally made out in the plaint. The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting malafide. There are a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The amendments sought for by the appellants has become necessary in view of the facts that the appellants being the beneficiaries of the Trust are not deriving any benefit from the creation of the Trust since 1991-92 and that if the shares are sold and then invested in Government bonds/securities the investment would yield a minimum return of 10-12%. The amendments sought for by the appellants has become necessary in view of the facts that the appellants being the beneficiaries of the Trust are not deriving any benefit from the creation of the Trust since 1991-92 and that if the shares are sold and then invested in Government bonds/securities the investment would yield a minimum return of 10-12%. It was alleged by the appellants that respondent No.1 is opposing the sale in view of the fact that if the said shares are sold after the suit is decreed in favour of the appellants, he will be the loser and, therefore, it is solely on account of the attitude on the part of respondent No.1 that the appellants have constrained to seek relief against the same.” 22. In the instant case also the cause of action has arisen during the pendency of the suit and the proposed amendment has rightly been allowed by the trial court. 23. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.