Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 194 (HP)

Ritesh Sharma v. Pardeep Kumar Samantaroy

2021-03-31

SANDEEP SHARMA

body2021
JUDGMENT : SANDEEP SHARMA, J. 1. Instant petition filed under Art. 227 of the Constitution of India, is directed against order dated 18.12.2019 passed by learned Civil Judge, Dalhousie, District Chamba whereby an application having been filed by respondent-plaintiff (hereinafter, ‘plaintiff’) under Order VI rule 17 CPC, praying therein for amendment of plaint came to be allowed. 2. For having a bird’s eye view of the matter, certain undisputed facts emerge from the pleadings available on record are that plaintiff filed suit for permanent prohibitory and mandatory injunction restraining respondents/defendants (hereinafter, ‘defendants’) from interfering in any manner in the suit land comprised Khata Khatauni No.268/375, Khasra No. Kita 26, measuring 1-42-30 hectares situate at Mauja Bakrota, Tehsil Dalhousie, Chamba, Himachal Pradesh (hereinafter, ‘suit land’). Defendants in their written statement to the plaint specifically raised preliminary objection with regard to authorization and competence of the plaintiff to file the suit. Apart from above, defendants claimed in the written statement that the subject “Khyber House” is different property from St. John Church and the shops and the houses adjoining to it. Defendants claimed that St. John Church is property of Indian Church Trustees (ICT). After having noticed aforesaid objection raised by defendants with regard to competence of the plaintiff to institute the suit and details of the suit property, plaintiff preferred an application under Order VI, rule 17 CPC, before framing of issues, seeking therein permission to amend plaint on the ground that at the time of filing of suit, plaintiff despite due diligence, inadvertently mentioned the name of church as “Saint John Church” whereas, its real name was “Sadhu Sunder Singh Chapel”. Besides above, plaintiff also submitted that the words “and the shops” as mentioned in the description of suit property were also required to be deleted Plaintiff also claimed that while filing the suit, he was unable to mention with regard to photographs he intended to place on record to demonstrate his ownership and possession. By way of amendment, plaintiff also prayed to clarify his capacity to file the suit as Bishop of Diocese of Amritsar and to correct the title of suit, from Chairman of Church of England, Jnana Mission Property to Bishop of Diocese of Amritsar, Chairman Church of England, Jnana Mission, which owns and possesses Church of England, Jnana Mission Property. By way of amendment, plaintiff also prayed to clarify his capacity to file the suit as Bishop of Diocese of Amritsar and to correct the title of suit, from Chairman of Church of England, Jnana Mission Property to Bishop of Diocese of Amritsar, Chairman Church of England, Jnana Mission, which owns and possesses Church of England, Jnana Mission Property. Plaintiff claimed that the amendments sought by way of application are necessary for proper adjudication of the case. 3. Defendants opposed the aforesaid prayer made on behalf of plaintiff on the ground that the amendment soughts, if allowed would amount to changing the nature of the suit. Defendants claimed before learned court below that by way of amendment, plaintiff is seeking amendment in the title of suit and thereby introducing a new plaintiff as the suit has been filed for and on behalf of Bishop Diocese of Amritsar, Chairman, Church of England, Jnana Mission, which is a new entity and in case, aforesaid amendment is allowed, it would change title of the suit. 4. Learned court below, having taken note of pleadings adduced in the application at hand, proceeded to allow the amendment as prayed for. In the aforesaid background defendants have approached this Court in the instant proceedings praying therein to quash the order allowing the amendment. 5. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned by learned court below, while passing impugned award this court finds no illegality or infirmity in the impugned order, as such, no interference is called for. 6. Mr. Vivek Singh Attri, learned counsel for the defendants vehemently argued that bare perusal of averments contained in the application seeking amendment to suit, itself suggests that the plaintiff has sought to change entire complexion of suit by way of amendment, which is not permissible under law. 7. Per contra, Mr. Aman Sood, learned counsel for the defendants, while supporting impugned award, submitted before this Court that proposed amendment if allowed, would in no manner change complexion of suit, rather would enable the learned court below to adjudicate controversy inter se parties in a most effective manner. 8. 7. Per contra, Mr. Aman Sood, learned counsel for the defendants, while supporting impugned award, submitted before this Court that proposed amendment if allowed, would in no manner change complexion of suit, rather would enable the learned court below to adjudicate controversy inter se parties in a most effective manner. 8. By now it is well settled that power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice, provided that party seeking amendment is able to show that pleading sought to be incorporated by way of amendment could not be pleaded at first instance at the time of filing suit/written statement, despite due diligence. (See: Gurbhaksh Singh and othersr vs. Buta Singh and another , 2018 AIR (SC) 2635). 9. Similarly, Hon’ble Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017)5 SCC 212 , has culled out certain principles while allowing or rejecting the application for amendment, which are as under:- “13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers vs. Narayanaswamy & Sons, (2009)10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p.102) “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.” 10. 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.” 10. It is quite apparent from the aforesaid exposition of law, that court, while considering application under Order VI, rule 17 CPC for amendment of plaint is required to see whether proposed amendment, if denied, would, in fact, lead to injustice or lead to multiplicity of litigation. Similarly, it is also required to be seen by the court, while considering application under Order VI, rule 17 CPC, that whether application for amendment is bona fide or mala fide and amendment, if allowed, would fundamentally change the nature and character of the suit. 11. This Court in Rajeev Kumar Singhal vs. Mukul Garh and others, 2019 (2) Him. L.R. (HC) 899, has held that courts should be extremely liberal in granting prayer for amendment unless irreparable loss is caused to the other side. 12. In the case at hand it is not in dispute that the application seeking amendment of plaint came to be filed immediately after filing of written statement by the defendants, wherein defendants specifically took objection with regard to authorization and capacity of the plaintiff to file the suit. As has been observed above, court while exercising power under Order VI rule 17 CPC can proceed to allow amendments which are necessary for deciding the controversy inter se parties. 13. In the case at hand, plaintiff filed suit for permanent prohibitory and mandatory injunction qua Khata Khatauni No. 268/375 Khasra Nos. Kita 26, measuring 01-42-30 Hectare situate at Mauza Bakrota, Tehsil Dalhousie, District Chamba, Himachal Pradesh. By way of amendment, plaintiff seeks to amend description of the suit property and also wants to clarify his capacity to file the suit. Since the plaintiff has specifically filed suit qua Khasra numbers as detailed herein above, amendment as sought for, if allowed, would in no manner amount to changing the nature of suit. Perusal of original plaint itself suggests that plaintiff has filed suit for permanent prohibitory injunction restraining the defendants from interfering in the suit property which stands entered in the record of rights, in the name of Church of England, Khyber House, which contains St. John Church and the shops and the houses adjoining it. Perusal of original plaint itself suggests that plaintiff has filed suit for permanent prohibitory injunction restraining the defendants from interfering in the suit property which stands entered in the record of rights, in the name of Church of England, Khyber House, which contains St. John Church and the shops and the houses adjoining it. If the amendment to the name and description of the suit property, is allowed, suit property remains same in Khata Khatauni No. 268/375. Plaintiff has claimed in the application that the description of property has been inadvertently mentioned as St. John Church and the shops and the houses adjoining to it. Since the defendants resisted the plaint on the ground that the suit has been filed by an incompetent and unauthorized person claiming himself to be the Chairman, Church of English, Jnana Mission Property, plaintiff with a view to clarify aforesaid aspect of the matter, sought permission to amend the plaint. As per plaintiff is he is Bishop Diocese of Amritsar, Chairman of Church of England, Janana Mission Property at Khyber House, Upper Bakrota, Tehsil Dalhousie, District Chamba. Though, in the case at hand, suit stands filed in the name of Bishop Diocese of Amritsar, Chairman of Church of England, Janana Mission Property at Khyber House, whereas it ought to be Chairman of Amritsar Diocesan Trust Association, which owns and possesses Church of England, Jnana Mission Property. By way of amendment (supra) plaintiff wants to clarify his capacity to institute the suit and the amendment, if permitted, in no manner would change the nature of the suit. Plaintiff has averred in application that he was unable to mention the photographs, which he wants to place on record to show his ownership of the suit property. Since plaintiff has filed suit for permanent prohibitory and mandatory injunction, photographs intended to be placed on record, may be necessary to demonstrate possession of the plaintiff over the suit property. In the case at hand, plaintiff by way of amendment wants to amend description of suit property and his authorization to file the suit. Since Khasra Numbers of the suit property would remain the same, despite there being amendment allowed qua description of the suit property and authorization of plaintiff, no serious prejudice can be said to be caused to the defendants, in case amendment is allowed. 14. Since Khasra Numbers of the suit property would remain the same, despite there being amendment allowed qua description of the suit property and authorization of plaintiff, no serious prejudice can be said to be caused to the defendants, in case amendment is allowed. 14. In the case at hand, amendment has been sought before settlement of issues and nature of amendment if permitted is not such, that it would change the nature and characteristic of the suit, rather, amendment, if allowed, would enable learned court below to decide the controversy inter se parties in a most effective manner. 15. Having perused the amendment proposed by the plaintiff, in its entirety, this court is in full agreement with learned court below that proposed amendment if allowed would not cause any prejudice to the defendants and in no manner, change complexion of the suit. 16. Consequently, in view of the detailed discussion supra, the impugned order is upheld, as a result whereof, present petition is dismissed. Pending applications, if any, are disposed of. Interim direction, if any, is vacated.