Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 375 (HP)

Gian Chand v. Mohinder Singh

2015-04-20

RAJIV SHARMA

body2015
JUDGMENT : Justice Rajiv Sharma, J. This petition is instituted against the order dated 13.3.2015 rendered by the learned Civil Judge (Senior Division), Shimla. 2. “Key facts” necessary for the adjudication of this petition are that respondent-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) has filed a suit for declaration that he is owner of building constructed over property comprised in Khewat Khatauni No. 141/230, Khasra No.1823/1594/432 measuring 3 biswas situated at Mohal Rohru, Tehsil Rohru, District Shimla and also for declaration that the defendant Gian Chand has deviated from agreement dated 6.10.2003 and has tempered with affidavit dated 30.12.2002 and also for declaration that rent agreements executed by defendant Gian Chand with defendants No.2 to 12 from 2003 onwards are illegal, wrong and without consent of plaintiff and suit for declaration that status of defendants No.1 to 12 in the suit property/building is unauthorized. The suit was also filed for recovery of Rs. 5,35,000/- as rent from Gian Chand and use and occupation charges from defendants No.2 to 12 in proportion from October, 2003 till 30.9.2012 and thereafter from 1.10.2012 a sum of Rs. 2,00,000/-, i.e. Rs. 50,000/- per month as use and occupation charges from defendants No.1 to 12. The suit was also filed for recovery of Rs. 3,00,000/- on account of damages suffered by plaintiff and his property due to arbitrary, illegal acts, conducts of defendants No.1 to 12 and suit for possession directing defendants No.1 to 12 to handover possession of suit property to the plaintiff. Suit was also filed for permanent injunction directing defendants No.1 to 12 not to further sub-let the suit property to any other person and not to create any kind of encumbrance over the suit property. 3. Plaintiff also filed an application under order 6 rule 17 read with section 151 of the Code of Civil Procedure seeking amendment in para 10, head note and prayer clause (e). The application was contested by defendants except defendants No.2 to 12 by filing replies. According to the averments made in the application, plaintiff would get more than Rs. One lakh as monthly rent of the premises and for this reason, plaintiff intended to claim damages to the tune of Rs. 13,00,000/- instead of 3,00,000/-. Contesting defendants have stated that the plaintiff was not owner of the building in question. According to the averments made in the application, plaintiff would get more than Rs. One lakh as monthly rent of the premises and for this reason, plaintiff intended to claim damages to the tune of Rs. 13,00,000/- instead of 3,00,000/-. Contesting defendants have stated that the plaintiff was not owner of the building in question. Issues have not been framed in the Civil Suit and the suit is at the initial stage. Learned trial court has rightly allowed the application on 13.3.2015 within the principles governing amendment of plaint. The amendment was necessary for determining the real controversy between the parties. No prejudice has been caused to the defendants. 4. Their Lordships of the Hon’ble Supreme Court in Mount Mary Enterprises vs. Jivratna Medi Treat Private Limited, (2015) 4 SCC 182 have held that amendment application should normally be granted unless by virtue of amendment nature of suit is changed or some prejudice is caused to defendant. In this case, suit was for specific performance and initially the property was valued at Rs. 13,50,000/- but the market value of the property was actually Rs. 1,20,00,000/-. Their Lordships have held as under: “[7] In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs.13,50,000/- but as the market value of the property was actually Rs.1,20,00,000/-, the appellant-plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint. [8] It is also pertinent to note that the defendant had made an averment in para 30 of the written statement filed in Suit No.1955 of 2010 that the plaintiff had undervalued the subject matter of the suit. It had been further submitted in the written statement that the market value of the suit property was much higher than Rs. 14 lacs. The defendant had paid Rs.13.5 lacs for the said premises in the year 2002 when the said premises had been occupied by a tenant bank. It had been further submitted in the written statement that the market value of the suit property was much higher than Rs. 14 lacs. The defendant had paid Rs.13.5 lacs for the said premises in the year 2002 when the said premises had been occupied by a tenant bank. Even according to the defendant value of the suit property had been undervalued by the plaintiff in the plaint. If in pursuance of the averment made in the written statement the plaintiff wanted to amend the plaint so as to incorporate correct market value of the suit property, the defendant could not have objected to the amendment application whereby the plaintiff wanted to incorporate correct value of the suit property in the plaint by way of an amendment. The other contention that the valuation had already been settled cannot also be appreciated since the High Court has held that the said issue was yet to be decided by the trial Court. [9] The main reason assigned by the trial court for rejection of the amendment application was that upon enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected. 10. With regard to amendment of plaint, the following observation has been made by this Court in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by LRs, 2008 8 SCC 511 : "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others, 1957 SCR 595 which still holds the filed, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others, 1957 SCR 595 which still holds the filed, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs." [11] In our opinion, on the basis of the aforestated legal position, the amendment application made by the plaintiff should have been granted, especially in view of the fact that it was admitted by the plaintiff that the suit property was initially undervalued in the plaint and by virtue of the amendment application, the plaintiff wanted to correct the error and wanted to place correct market value of the suit property in the plaint. [12] For the aforestated reasons, we are of the view that the amendment application should not have been rejected by the trial court and the High Court should not have confirmed the order of rejection. We, therefore, set aside the impugned judgment delivered by the High Court and the order dated 22nd November, 2013 of the trial court, whereby the amendment application had been rejected. [13] We allow the appeal and direct the trial court to permit the appellant-plaintiff to amend the plaint as prayed for in the amendment application so as to change valuation of the suit property. There is no order as to costs.” 4. In the instant case, the petitioner has also only claimed damages amounting to Rs. 13,00,000/- instead of Rs. 3,00,000/- and it would neither change the nature of the suit nor cause any prejudice to the defendants. There is neither any perversity nor any illegality in the order dated 13.3.2015 passed by the trial court. 5. Consequently, there is no merit in the present petition and the same is dismissed. Pending application(s), if any, is also disposed of. No costs.