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2017 DIGILAW 320 (ALL)

SAHBALI v. NAKHADU

2017-01-24

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the petitioner. 2. The petitioner happens to be plaintiff in Original Suit No. 1100 of 1995 which was instituted by him for permanent prohibitory injunction in respect of property shown by letters ‘Ta’, ‘Tha’, ‘Da’ and ‘Dha’ in the plaint. 3. The plaint case was that the suit property was land appurtenant to the plaintiff’s house and was used as a Sahan and as such it came to be vested under Section 9 of U.P.Z.A. & L.R. Act on abolition of Zamindari. 4. The defendant contested the claim of the plaintiff and, in paragraph 14 of the written statement, it was specifically stated that the suit land was earlier in possession of Tanku and, thereafter, it came in possession of the defendant. The trial Court dismissed the suit by judgment and decree dated 6.10.2012. Against the judgment and decree of the trial Court, Civil Appeal No. 227 of 2012 was filed by the plaintiff-petitioner which remains pending till date. During pendency of the appeal, an application was moved for amendment in the plaint which came to be dismissed for non-prosecution and, thereafter, again, an application was moved for amendment which came to be rejected by the impugned order dated 21.11.2016 passed by the appellate Court before which the appeal was pending. By the amendment application, paragraph 4 A was sought to be added in the plaint to take a plea that Tanku did not have any issue and that he used to reside with the plaintiff and that during his life time, Tanku had transferred possession as well as title of the suit property to the plaintiff and, therefore, the plaintiff became the owner in possession of the suit property. 5. The appellate Court rejected the amendment on two grounds. The first ground was that earlier also application for amendment was moved which was rejected and, therefore, the second application was not maintainable. The second ground was that if the amendment was allowed, the nature and basis of the claim of the plaintiff would change and, therefore, the amendment would cause prejudice to the other side. 6. The first ground was that earlier also application for amendment was moved which was rejected and, therefore, the second application was not maintainable. The second ground was that if the amendment was allowed, the nature and basis of the claim of the plaintiff would change and, therefore, the amendment would cause prejudice to the other side. 6. The submission of the learned counsel for the petitioner is that in so far as the first ground for rejecting the amendment application is concerned, the same is not legally sustainable because the rejection of the earlier amendment application was not on merits but was got dismissed as not pressed inasmuch as there were few technical errors and, accordingly, a fresh application was not barred by principle of res judicata. The second submission of the learned counsel for the petitioner is that since the trial Court itself had come to the conclusion that the land belongs to Tanku no prejudice would be caused to the other side if the plaintiff accepts the title of Tanku and amends the plaint accordingly and, in any case, since the land does not belong to the defendant, therefore, no prejudice would be caused on allowing of the amendment. 7. Before proceeding to deal with the submissions of the learned counsel for the petitioner it would be apposite to notice few noticeable features governing the law relating to amendments. 8. In J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300 , the Apex Court, vide para 18 of the report, observed that “the primary aim of the Court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the Court so that the Court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties.” 9. The Court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties.” 9. In Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559 , the Apex Court, in paragraph 9 of the report, observed as follows: “Order 6 Rule 17 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 the 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 straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” 10. From the decisions noticed above, it is thus clear that pre-trial amendments which are to address the real controversy between the parties in the suit are not to be disallowed ordinarily unless it seriously prejudices the interest of the other side. But, in a case, where trial has commenced and parties have led their evidence, at the time of allowing the amendment, the Court, with reference to the facts and circumstances of each case, has to consider the question of prejudice caused to the other side in the event of amendment being allowed. Where such prejudice cannot be compensated by cost, the Courts must be loath to exercise their discretion in favour of amendment. 11. Where such prejudice cannot be compensated by cost, the Courts must be loath to exercise their discretion in favour of amendment. 11. Now coming to the submissions made by the learned counsel for the petitioner, in so far as the first submission of the learned counsel for the petitioner is concerned that may have some substance because if the earlier application for amendment was dismissed as not pressed, then it may not be a bar to filing a fresh application. But in so far as the second submission is concerned, same cannot be accepted because the plaintiff had instituted the suit by claiming right over the land as Sehan, which came to be vested, under Section 9 of the U.P.Z.A. & L.R. Act, whereas, by amendment, the petitioner has taken a complete change in his stand by claiming that the land was of Tanku who had transferred possession and title of the same during his lifetime to the plaintiff. The said plea cannot be permitted, at this stage, particularly, when the defendant had taken a stand in the written statement that earlier the land was in the possession of Tanku and, thereafter, it came in possession of the defendant. Such an amendment, after the defendant had already led his evidence and finding has been returned by the trial Court, would certainly change the basis of the suit and would cause serious prejudice to the defendant because the defendant has already opened his cards. The plaintiff now seeks to take advantage of the defence case for his own gain at the appellate stage, which cannot be permitted. 12. The contention that since it was the own case of the defendant that the land belongs to Tanku therefore the defendant would not suffer prejudice by the amendment is unacceptable because it is well-settled in law that a defendant, to defend an action brought against him, need not prove his own right, it would be sufficient if he demolishes the plaint case. Accordingly, if the plaintiff is permitted to alter basis of his claim, at such a belated stage, just to take advantage of the defence, it would cause serious prejudice to the defendant. More so, when there is no logical explanation for the delay in moving the amendment application at such a belated stage. 13. Accordingly, if the plaintiff is permitted to alter basis of his claim, at such a belated stage, just to take advantage of the defence, it would cause serious prejudice to the defendant. More so, when there is no logical explanation for the delay in moving the amendment application at such a belated stage. 13. I, therefore, do not find any good reason to interfere with the order passed by the Court below. 14. The petition is dismissed.