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2016 DIGILAW 85 (UTT)

SURESH CHAND @ RAM DEV v. RADHEY SHYAM

2016-02-29

U.C.DHYANI

body2016
JUDGMENT U. C. Dhyani, J. (Oral) 1. By means of present writ petition, the petitioner seeks following relief, among others: “Issue a writ, order or direction in the nature of certiorari quashing the order dated 15.02.2016 passed by IVth Additional District Judge, Dehradun and order dated 30.05.2015 passed by IIIrd Addl. Civil Judge (S.D.) Dehradun on amendment application / impeadment application paper no.136A filed by the plaintiff/petitioner in Original Suit No.170/05, Suresh Chand vs. Nagar Nigam & others, pending in the court of Civil Judge (S.D.), Dehradun and the amendment application filed by the petitioner, paper No.136A may be allowed in toto.” 2. A suit for permanent prohibitory injunction was filed by the plaintiff-petitioner against the respondent nos.2 & 3 initially, to which, respondent no.1 was added subsequently on his impleadment application. Learned counsel for the parties pointed out that issues have been framed, but, the same were not framed when the plaintiff sought the proposed amendments. The proposed amendments sought to be incorporated by the plaintiff have been mentioned in Annexure-4 to the writ petition. Since the proposed amendments are lengthy, hence, this Court need not reproduce the entire amendments for the sake of convenience and brevity. However, the substance of the proposed amendments shall be discussed in the subsequent paragraphs of this judgment. 3. Having said that the respondent no.1 was impleaded subsequently, the plaintiff averred, in the amendment application, that on 26.11.2011, when he was sitting in his office, defendant nos.4 to 7 came to the spot, threatened him with dire consequences and also threatened him to vacate the property in question. According to the plaintiff, defendants no.4 to 7 also threatened him to sell off the property of plaintiff and defendant no.3. Plaintiff, therefore, sought to incorporate, by way of amendment, that the entries made in favour of respondent nos.4 to 7 are forged, for which, the State Government is responsible. The remaining part of the amendment application deals with the valuation of the suit. The next one is as regards the relief that defendant nos.4 to 7 be directed not to interfere in the joint passage of plaintiff and defendant no.3. It also prays that the entries made in favour of the proposed defendant nos.4 to 7 be deleted and a direction be given to the State Government in this behalf. 4. The sweep and ambit of Order 6 Rule 17 C.P.C. is very wide. It also prays that the entries made in favour of the proposed defendant nos.4 to 7 be deleted and a direction be given to the State Government in this behalf. 4. The sweep and ambit of Order 6 Rule 17 C.P.C. is very wide. The exceptions, broadly speaking, are – if the Court finds that the petitioners have not come to the Court with clean hands; the character of the suit is changed; the amendment application is unusually belated; there is malafide on the part of the applicant; there is withdrawal of earlier admitted facts and the matter is covered by proviso to Order 6 Rule 17 CPC. In the instant case, admittedly, the trial was not commenced when the amendment application was filed and, therefore, there is no need for this Court to go into the question that in ‘inspite of due diligence, the party could not have raised the matter before commencement of trial.’ Order 6 Rule 17 C.P.C. says that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The same is subject to proviso, which is as follows: “17. Amendment of pleadings. – ………...............………………… …………………………………………………………………………........……… Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.” 5. There is no doubt that the amendments sought to be incorporated relate to the same property. When amendment application is allowed or rejected, the trial court will not enter into the correctness or otherwise of the contents of amendment application. The Court has to see that the amendment sought to be incorporated does not change the nature of the suit. Present amendment was necessitated to avoid the multiplicity of suits between the parties. Respondent no.1 was impleaded in the suit at his behest and, subsequent thereto, certain averments have been made against other respondents, as also respondent no.1, which, in the considered opinion of the Court do not change the nature of the suit. 6. Present amendment was necessitated to avoid the multiplicity of suits between the parties. Respondent no.1 was impleaded in the suit at his behest and, subsequent thereto, certain averments have been made against other respondents, as also respondent no.1, which, in the considered opinion of the Court do not change the nature of the suit. 6. Learned counsel for the respondent no.1 placed reliance upon a decision of Hon’ble Allahabad High Court in Radha Saran Dubey vs. Ram Niwas, (2000) 3 AWC 2282 to argue that there cannot be a suit in respect of a cause of action which alleges to have arisen after the suit is filed. In Radha Saran Dubey’s case (supra), the cause of action which alleged to have arisen subsequently related to a stranger who was not party to the suit at all. The facts of the instant case are entirely different from Radha Saran Dubey’s case (supra), inasmuch as respondent no.1 got himself impleaded as defendant before the trial court and a part of amendment sought for by the plaintiff is against other defendants. Learned counsel for the respondent no.1 also placed reliance upon a decision of Hon’ble Supreme Court in Gayathri Women Welfare Association vs. Gowramma, (2011) 1 UAD 416 , in which, it was held that: “30. In the case of Revajeetu Builders & Developers vs. Narayana Swamy & Sons, (2009) 10 SCC 84 , this Court reiterated the very wide discretion the Courts have in the matter of amendment of pleadings. These observations were in the context of an application filed by the appellant, seeking amendment of the original plaint including the prayer clause being rejected by the High Court upon coming to a definite conclusion that the appellant while seeking permission to amend the plaint is trying to introduce a new case, which was not his case in the original plaint and the proposed amendment, if allowed, would certainly affect the rights of the respondents adversely. It was also held that any such amendment, which changes the entire character of the plaint, can not be permitted and that too, after a lapse of four years and after the institution of the suit. It was also held that any such amendment, which changes the entire character of the plaint, can not be permitted and that too, after a lapse of four years and after the institution of the suit. This Court, upon a detailed consideration of the historical background of Order VI Rule 17 and upon a comprehensive survey of the case law, concluded that the amendment can be permitted, if it was necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment can not be allowed. It was also observed as follows:- “22. ....The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court.” 7. In the instant case, the plaintiff did not try to introduce a new case, although, certain facts are new, which do not change the entire character of plaint. The suit was instituted initially for seeking a relief of permanent prohibitory injunction, which the plaintiff seeks to extend against other defendants. The same is not belated, inasmuch as the issues were framed after the rejection of amendment application by the courts below. The amendments sought to be incorporated are necessary for the determination of real question of controversy and to avoid the multiplicity of proceedings. 8. For the reasons enumerated hereinabove, the writ petition should be allowed and the impugned order should be set aside. The writ petition is, accordingly, allowed and the impugned orders are set aside. As a consequence thereof, amendment application of the plaintiff stands allowed. 9. Since the original suit pertains to the year 2005 and only issues have been settled till now, this Court directs that an endeavour shall be made by the trial court to decide the original suit at an early date without granting unnecessary adjournments to the plaintiff.