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2018 DIGILAW 398 (UTT)

RAGHUBAR DATT MAULEKHI v. STATE OF UTTARAKHAND

2018-07-20

MANOJ K.TIWARI

body2018
JUDGMENT Hon'ble Manoj K. Tiwari, J. (Oral) This is plaintiff's petition under Article 227 of the Constitution of India against rejection of their application seeking leave to amend the plaint, at the appellate stage. 2. Petitioners as well as respondent Nos. 3 to 5 are claiming certain rights over the suit property situated at Painth Paraw, Ramnagar. The suit property consists of Nazul land and structure standing thereupon. State Government has formulated a policy for grant of freehold rights over Nazul land in favour of different category of persons including the lessee, his transferee/nominee and also a person, who is in unauthorized occupation of such land. 3. Petitioners filed a declaratory suit in which relief of injunction was also sought, and the same was registered as O.S. No.91 of 2001 in the Court of Civil Judge (Sr. Div.), Nainital. After hearing both parties, the said suit was dismissed by learned Trial Court vide judgment and order dated 24.12.2013. 4. Petitioners being dissatisfied by learned Trial Court's judgment, filed an appeal under Section 96 of Code of Civil Procedure, which was registered as Civil Appeal No. 06 of 2014 and is still pending before learned Additional District Judge, Ramnagar (Nainital). 5. Petitioners, who are plaintiffs in the suit, filed an application under Order 6, Rule 17 of C.P.C. seeking leave to amend the plaint at the appellate stage. By the said amendment, petitioners sought liberty to add the plea based on revised freehold policy of the State Government dated 04.08.2005, according to which, even a person in unauthorized occupation of nazul land is entitled to get his leasehold rights converted into freehold rights, however, if a person is not in possession over nazul land, then, he is not entitled to get his rights converted into freehold. 6. The said application having been rejected by learned Appellate Court vide order dated 04.07.2015, plaintiffs have filed this writ petition. 7. The amendment application of the petitioners has been rejected on the ground that application was not filed with due diligence, therefore, the bar of proviso to Order 6, Rule 17 of C.P.C. is attracted. Another ground on which the application was rejected, is that the facts sought to be added through amendment, are already part of pleading. 8. Mr. 7. The amendment application of the petitioners has been rejected on the ground that application was not filed with due diligence, therefore, the bar of proviso to Order 6, Rule 17 of C.P.C. is attracted. Another ground on which the application was rejected, is that the facts sought to be added through amendment, are already part of pleading. 8. Mr. Sudhir Kumar, learned counsel for respondent Nos.3 to 5 submits that revised freehold policy issued vide G.O. dated 04.08.2005 is not applicable in the present case, as his client had applied for freehold rights under the old policy of 1997. Since, this contention raised by Mr. Sudhir Kumar touches merits of the case, which can be considered by the Appellate Court at the time of final hearing, therefore, in my opinion, the said contention has no force. 9. It is well settled by catena of judgments that Courts should be liberal in granting amendment of pleadings. Amendment of pleadings can be made even at the appellate stage, as appeal is continuation of suit. Paragraph No.21 of judgment rendered by Hon'ble Supreme Court in the case of State of A.P. and Others Vs. Pioneer Builders, A.P. reported in (2006) 12 SCC 119 is extracted below:- 21. Principles governing amendment of pleadings are well settled. Order 6 Rule 17 CPC deals with the amendment of pleadings and provides that the court may at any stage of the proceedings allow either party to alter or amend pleadings in such a 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. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is equally well settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the court should adopt liberal approach and not a hyper technical approach, particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings. (See L.J. Leach & Co. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings. (See L.J. Leach & Co. Ltd. v. Jardine Skinner & Co.7, Ganga Bai v. Vijay Kumar8 and B.K. Narayana Pillai v. Parameswaran Pillai9.) Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung10 succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings: (IA pp. 216-17) “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit." 10. Similar view has been expressed by Hon'ble Supreme Court in the case of Mahila Ramkali Devi and Others Vs. Nandram (Dead) through Legal Representatives and Others reported in (2015) 13 SCC 132 : 2015 (2) UAD 518 . Paragraph Nos.20 and 23 of the said judgment are extracted below:- “20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost. 23. In Ishwardas vs. State of Madhya Pradesh, this Court observed :- 4. We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the Court. There is no legal basis for this assumption. 5. We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the Court. There is no legal basis for this assumption. 5. There is no impediment or bar against an appellate Court permitting amendment of the pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well-known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court." 11. In view of the aforesaid legal position, the impugned order passed by learned Appellate Court on 04.07.2015 cannot be sustained in the eyes of law, therefore, the same is liable to be set aside and is hereby set aside. Application No. 31(c) filed by the petitioners seeking leave to amend the plaint is hereby allowed, subject to payment of cost of Rs. 10,000/-, out of which 50% would be deposited in Advocate's Welfare Fund maintained by Uttarakhand High Court Bar Association and the remaining shall be paid to respondent Nos.3 to 5. 12. Mr. Piyush Garg, learned counsel for the petitioners with a view to expedite hearing of the appeal, voluntarily gives an undertaking on behalf of his clients that they will not seek unnecessary adjournment before learned Court below and further that they will not move any application seeking (i) leave to amend and (ii) permission to lead additional evidence. Having regard to the earnestness shown by the petitioners, and in view of the fact that parties are litigating since 2001, the Appellate Court is directed to hear and decide the appeal as early as possible, preferably within a period of two months. Having regard to the earnestness shown by the petitioners, and in view of the fact that parties are litigating since 2001, the Appellate Court is directed to hear and decide the appeal as early as possible, preferably within a period of two months. Ten days' time is granted to the respondents to file additional written statement, if any, to the amended plaint. 13. With above observations and directions, the writ petition stands disposed of. 14. Pending application, if any, also stands disposed of accordingly. 15. Let a certified copy of this order be supplied to learned counsel for the parties by Tuesday i.e. on or before 24.07.2018, on payment of usual charges.