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2019 DIGILAW 885 (RAJ)

Krishan Kumar v. Ram Bharosi Bansal

2019-03-25

SANJEEV PRAKASH SHARMA

body2019
JUDGMENT Sanjeev Prakash Sharma, J. - By way of this writ petition, the petitioners assail the order dated 01/04/2016 whereby the application filed by the petitioners under Order 6 Rule 17 CPC at the appellate stage has been rejected by the learned lower appellate court. 2. Case of the petitioners is that the petitioners had filed a suit for permanent injunction and alleged that the respondents were raising construction on the land which was marked by the boundaries in the plaint. The petitioners submit that they were obstructed in use and occupation of the land in question and during the period between decision of the suit and filing of the appeal i.e. 21/12/2012 to 31/12/2012, the respondents had constructed a wall and stopped way of the petitioners. It is further submitted that during pendency of the appeal, the respondents had constructed three halls by making permanent construction and by using the land for commercial purposes and had changed nature of the property and therefore, prayed that they may be allowed amendment in the plaint and the trial court be directed to hear the suit again afresh. 3. The learned lower appellate court vide order impugned dated 01/04/2016 has rejected the application. 4. Learned counsel for the petitioners submits that there was a continuous act and on the ground of limitation, the application ought not have been rejected as the respondents had been making constructions throughout. The nature of the suit and prayer made in the main suit did not change and therefore the amendment ought to have been allowed. 5. Per-contra, learned senior counsel appearing for the respondents submits that the application was moved on01/02/2016 while the alleged hall constructed by the respondents was between 21/12/2012 to 31/12/2012 and thus the amendment sought was after a period of three years and was thus hit by provisions of the Limitation Act. The learned lower appellate court has therefore rightly rejected the application moved by the petitioners. With regard to the further amendments sought for, it is submitted that the original suit itself seeks to challenge the construction of hall and any further constructions made over and above would therefore be taken into consideration at the time of deciding of the suit finally and therefore, the amendment was not required to be made. He relies on the law laid down by the Apex Court in Muni Lai Vs. He relies on the law laid down by the Apex Court in Muni Lai Vs. The Oriental Fire and General Insurance Company Ltd. and another: AIR 1996 (SC) 642 to submit that the amendment in the plaint was barred by limitation and such amendment cannot be allowed. 6. After hearing learned counsel for the parties, this Court finds that the application under Order 6 Rule 17 CPC can always be moved for seeking amendment if it does not change the nature of the suit. In Muni Lai Vs. The Oriental Fire and General Insurance Company Ltd. and another (supra), the Apex Court while relying upon the earlier law laid down in Vineet Kumar Vs. Mangal Sain Wadhera: (1984) 3 SCC 352 held that it is well recognized that where the amendment does not constitute the addition of a new cause of action, the amendment would be allowed even after the statutory period of limitation. 7. Thus, each case has to be examined on its own facts and it would have to be seen as to what is the amendment sought for. In the present case, as noticed above, the petitioners sought to make amendment with the purpose to bring on record the new added constructions made by the respondents. Admittedly, the suit has been filed for permanent injunction and the application was moved seeking amendment in the suit. In view of this Court, such an amendment would not affect nature of the suit. In Kedar Nath Agrawal (Dead) and another Vs. Dhanraji Devi (Dead) and another: (2004) 8 SCC 76 , the Apex Court while relying upon the earlier law laid down by the Apex Court, held as underlie. 16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the, suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances: (i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) It is necessary to take notice of subsequent events in order to shorten litigation; or (iii) It is necessary to do so in order to do complete justice between the parties. [Re: Shikharchand Jain v. Digamber Jain Praband Karini Sabha and Ors., SCC p. 681, para 10]. 8. The Apex Court, in the aforesaid case of Kedar Nath Agrawal (Dead) and another Vs. Dhanraji Devi (Dead) and another, after considering the law laid down in Pasupuleti Venkateshwarlu Vs. Motor & General Traders: (1975) 1 SCC 770 and Hasmat Rai Vs. Raghunath Prasad: (1981) 3 SCC 103 , has held as under:- 31. In view of the settled legal position as also the decisions in Pasupuleti Venkateswarlu and Hasmat Rai, in our opinion, the High Court was in error in not considering the subsequent event of death of both the applicants. In our view, it was power as well as the duty of the High Court to consider the feet of death of the applicants during the pendency of the writ petition. Since it was the case of the tenant that all the three daughters got married and were staying with their in-laws, obviously, the said fact was relevant and material. The ratio laid down by this Court in Rameshwar, would not apply to the facts of this case as it related to agrarian reforms. Likewise, Gaya Prasad, does not carry the matter further. There during the pendency of proceedings the son for whom requirement was sought had joined Government Service. In the instant case, the requirement was for the applicants, who died during the pendency of writ petition. Gaya Prasad is thus clearly distinguishable. 9. Thus, in the opinion of this Court, the order passed by the learned lower appellate court rejecting the application under Order 6 Rule 17 CPC at this stage is unjustified and erroneous and the same is accordingly set aside. The amendments sought for by the petitioners in the application are allowed to be made in the suit. 9. Thus, in the opinion of this Court, the order passed by the learned lower appellate court rejecting the application under Order 6 Rule 17 CPC at this stage is unjustified and erroneous and the same is accordingly set aside. The amendments sought for by the petitioners in the application are allowed to be made in the suit. The learned lower appellate court to proceed further accordingly. 10. The writ petition is accordingly allowed.