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2017 DIGILAW 692 (ORI)

Rajeev Prasad Yadav v. Anita Sharma

2017-07-10

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. This petition challenges the order dated 4.7.2016 passed by the learned Civil Judge (Sr. Divn.), Champua in C.S. No.29 of 2015, whereby and whereunder learned trial court allowed the application for amendment of plaint. 2. Opposite party no.1 as plaintiff instituted the suit for declaration that the registered mutual agreement dated 1.11.2013 is binding on the plaintiff and defendants and permanent injunction impleading the petitioner as well as opposite party no.2 as defendants. The case of the plaintiff is that she is the owner of the land appertaining to Khata no.126/243, Plot no.247/1098 area of Ac.0.065 dec. and the defendant no.2 is the owner of the land appertaining to Khata No.126/244, Plot No.247/1099 area Ac.0.065 dec. of village Sading. The land of defendant no.2 situated between the land of plaintiff and defendant no.1. There is no connecting road to the main road. Plaintiff and defendant no.1 had requested defendant no.2 to provide road. He agreed. A mutual registered agreement was executed on 1.11.2013 between plaintiff, defendant no.1 and defendant no.2. As per the agreement, defendant no.2 left an area of 12’ width, from (east to west), length 59’4 from north to south appertaining to Khata no.126/244, Plot no.247/1099. For the purpose of road, plaintiff and defendant no.1 agreed that they shall provide their individual share. The plaintiff paid an amount of Rs.30,000/-to the defendant no.2. When the defendant no.2 dug foundation for construction of boundary over the suit land, the plaintiff filed the suit seeking the reliefs mentioned supra. 3. Pursuant to issuance of summons, the defendant no.2 entered contest and filed a written statement denying the assertions made in the plaint. While the matter stood thus, the plaintiff filed an application under Order 6 Rule 17 C.P.C. to incorporate the fact that the suit land was originally recorded in the name of one Kanhei Barik. After his death, his son Anirudha Barik became the owner. To press his legal necessity, he alienated some of the properties out of Khata No.11 to different persons. The plaintiff had purchased area Ac.0.065 dec. appertaining to Khata No.11, Plot No.247 for a valid consideration from the recorded tenant by means of a registered sale deed. Defendant no.2 had purchased an area Ac.0.065 dec. by means of a registered sale deed of the year 2010. The defendant no.1 had also purchased an area Ac.0.050 dec. The plaintiff had purchased area Ac.0.065 dec. appertaining to Khata No.11, Plot No.247 for a valid consideration from the recorded tenant by means of a registered sale deed. Defendant no.2 had purchased an area Ac.0.065 dec. by means of a registered sale deed of the year 2010. The defendant no.1 had also purchased an area Ac.0.050 dec. from the recorded tenant by means of a registered sale deed of the year 2011. The vendees had taken possession of their respective plots. The vendor had provided a passage of 12’ width in between plot no.247 which does not touch the land of the plaintiff and defendant no.1 from any side. The land of the plaintiff and defendant no.1 is bounded by private plots from all sides except the suit land for which the parties have entered into with the agreement for use of the suit land. The defendant no.1 has not come forward to perform his part of contract as per the mutual agreement. The defendant no.2 obstructed the passage left out by him for passage of the plaintiff and defendant no.1 for which the plaintiff took shelter before the local police and municipal authority. She sought to amend the prayer by directing the defendant no.1 to execute the sale deed in favour of defendant no.2. Defendant nos.1 and 2 filed their respective objections to the said application. Learned trial court came to hold that the proposed amendment with regard to the amendment nos.1 to 4, the foundational fact already exists. With regard to the proposed amendment no.5, it held that there was a mutual agreement between the parties for use of common passage. The plaint is silent with regard to the performance of contract of defendant no.1. The defendant no.1 is a party to the contract. Unless the same is allowed, it will lead to multiplicity of proceeding. With regard to the proposed amendment no.6, it held that the same is clarification of facts. It further held that the proposed amendment no.7 relates to subsequent development of the case. With regard to proposed amendment no.8, it held that the proposed amendment no.8 relates to addition of documents relied upon by the plaintiff. The same was allowed. It further held that the proposed amendment nos.10 and 11 will not change the nature and character of the suit. Held so, it allowed the application. 4. Mr. With regard to proposed amendment no.8, it held that the proposed amendment no.8 relates to addition of documents relied upon by the plaintiff. The same was allowed. It further held that the proposed amendment nos.10 and 11 will not change the nature and character of the suit. Held so, it allowed the application. 4. Mr. Sidhartha Mishra-I, learned counsel for the petitioner submitted that the proposed amendment is mala fide. The same is not necessary for deciding the dispute between the parties. Further the proposed amendment will change the nature and character of the suit. 5. Per contra, Mr. S.P. Misrha, learned Senior Advocate for the opposite parties submitted that the proposed amendment is formal in nature and the same will not change the nature and character of the suit. The proposed amendment is necessary for determining the real controversy between the parties. He relied upon the decision of the apex Court in the case of Rajesh Kumar Aggarwal and others vs. K.K. Modi and others, AIR 2006 SC 1647 . 6. In Revajeetu Builders and Developers v. Narayanaswamy and sons and others, (2009) 10 SCC 84 , on a survey of earlier decisions, the apex Court has succinctly stated that the factors to be taken into consideration while dealing with the application for amendment. The apex Court in paragraph-63 of the report held as follows: “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case ; (2) whether the application for amendment is bona fide or mala fide ; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 7. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 7. In Rajesh Kumar Aggarwal and others (supra), the apex Court held thus: “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. 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. 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. 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. 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.” 8. The instant case may be examined on the anvil of the decisions cited supra. On a cursory perusal of the plaint, it is evident that the foundational fact already exists. The proposed amendment is clarificatory in nature. It will not change the fundamental character of the suit. The amendment is necessary for determining the real controversy between the parties. 9. The impugned order cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution of India. But then, learned trial court is not justified in awarding cost. The proposed amendment is allowed subject to payment of cost of Rs.2,500/-(rupees two thousand five hundred) to the learned counsel for the defendants within a period of four weeks from today, failing which, the order dated 4.7.2016 passed by the learned Civil Judge (Sr. Divn.), Champua in C.S. No.29 of 2015 will be automatically recalled. Learned trial court shall conclude the hearing of the suit by end of January, 2018. The petition is disposed of.