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2021 DIGILAW 2126 (RAJ)

Chosar Bai v. Mahila Mandal Udaipur

2021-11-15

PUSHPENDRA SINGH BHATI

body2021
JUDGMENT 1. In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. This writ petition has been preferred claiming the following reliefs: "(i) by an appropriate writ, order or direction in the nature of or certiorari, impugned order dated 13.10.2014 (Annex.6) passed by the learned Additional District Judge No.3, Udaipur in Civil Appeal Case No.64/2008 may be quashed and set aside and application filed plaintiff-petitioner under Order 6 Rule 17 C.P.C. may kindly be allowed." 3. Learned counsel for the plaintiff/petitioner submits that the plaintiff had filed a suit for permanent injunction against the respondent-defendant for easementary rights, which is being violated, as the respondent had erected a wall and a water tank, which is causing nuisance to the plaintiff/petitioner. 4. Learned counsel for the plaintiff/petitioner further submits that the petitioner's suit was decided by the learned trial court on 04.08.2008, and aggrieved thereby, the plaintiff preferred an appeal, wherein she moved an application under Order 6 Rule 17 read with Section 151 CPC for bringing subsequent developments on record, which prayer has been declined by the learned court below vide the impugned order 13.10.2014. 5. Learned counsel for the plaintiff/petitioner relied upon the precedent law laid down by the Hon'ble Supreme Court in Mahila Ramkali Devi & Ors. v. Nandram (Dead) Through Legal Representatives & Ors., reported in (2015) 13 SCC 132 , relevant portion of which reads as under: "18. While rejecting the amendment petition, the High Court observed as under: "16. During the course of hearing an application is filed by the respondents under Order 6 Rule 17 CPC for amendment to the effect that the respondents Dinesh, Satish, Sanjay and Rajendra fails under Class XVII of the Madhya Pradesh Land Revenue Code. This amendment, at this stage, in fact cannot be allowed because the same is going to totally change the nature of the suit. The suit is filed in the year 1964 the suit was filed on the premises that Ramkali Devi has inherited the property from Ajudhibai on the basis of will. By the amendment in the pleadings Dinesh, Satish, Sanjay and Rajendra have joined as party. That amendment was incorporated on 18.7.1994 and their names were added as plaintiffs in the suit. In the cause title also the word 'plaintiff' is substituted by the word 'plaintiff'. By the amendment in the pleadings Dinesh, Satish, Sanjay and Rajendra have joined as party. That amendment was incorporated on 18.7.1994 and their names were added as plaintiffs in the suit. In the cause title also the word 'plaintiff' is substituted by the word 'plaintiff'. However, there is no amendment in the averments made in the rest of the pleadings in the plaint. In such circumstances, now, it will not be in the interest of justice to allow the application for amendment which totally goes to change the premises of the suit after a lapse of more than 40 years. In the present case the plaintiffs have based their title solely on the basis of a will executed by Ajudhibai and, therefore, allowing an application for amendment making claim on the basis of inheritance that too through Hardayal cannot be permitted at this stage. Hence, the amendment application is rejected." 19. It appears thus while disposing of the appeal, the High Court has not gone into the amended plaint. By amendment, the plaintiff-appellant not only sought to add the names of Dinesh, Satish, Sanjay and Rajendra sons of Baijnath Prasad Saxena in the category of plaintiffs, but also sought to make necessary amendment in paragraph 3 of the plaint. The averment sought to be incorporated in paragraph 3 of the plaint by amendment is reproduced hereunder: "Vikalp me yadi vasiyatnama vaidya na mana jave to be Ajudhibai ke karibtar varies vadini ke ladke Rajendra, Dinesh, Satish aur Sanjay hi hai jo abhi nabalig hai aur yeha dava unke hito ko represent karte huai unki maliki ke adhar par bhi prastut hai. Vadini ke dekh-rekh me ladke rahte hai. Garj yahe hai ki har halat me prativadigan ki koi swatva v mukable vadini avam uske ladke nahi hai. Aur vadini vivadagrast aaraji ka kabja apne tatha ladkon ko aur se pane ki patra hai." As translated in English "In alternative, if the will is not held valid, yet the plaintiff's sons Rajendra, Dinesh, Satish, Sanjay, who at present are minors are near relations of Ajudhibai and this suit is submitted to represent their interests on basis of their ownership. The sons live in care of plaintiff meaning thereby in every condition there is no right of defendants competing plaintiff. And the plaintiff herself and on behalf of her sons is entitled to get possession of the suit land." 20. The sons live in care of plaintiff meaning thereby in every condition there is no right of defendants competing plaintiff. And the plaintiff herself and on behalf of her sons is entitled to get possession of the suit land." 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. 21. In our view, since the appellant sought amendment in paragraph 3 of the original plaint, the High Court ought not to have rejected the application. 22. In the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 , this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations. 23. In Pandit Ishwardas v. State of Madhya Pradesh and Ors., AIR 1979 SC 551 , 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. 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. 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." 24. In the light of the discussion made hereinabove and also having regard to the fact that the amendment sought for by the plaintiff-appellant ought to have been allowed by the High Court, in our considered opinion substantial issue no.2, as formulated by the High Court, needs to be decided by the High Court afresh. 25. We, therefore, allow the appeal in part, affirm the finding recorded by the High Court on substantial question no. 1 and 3. However, the finding recorded by the High Court in the impugned judgment on substantial question no.2 is set aside and the matter is remitted back to the High Court to decide the aforementioned substantial question no.2 afresh, taking into consideration the relief sought for by the plaintiff-appellant by amending the plaint. 6. Learned counsel for the plaintiff/petitioner also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Krishan Kumar & Anr. v. Ram Bharosi Bansal through legal representatives & Anr. (S.B. Civil Writ Petition No.5522/2016, decided on 25.03.2019), relevant portion of which reads as under: "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 Lal v. 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 v. 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. 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 v. 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 under: 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. 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 v. Dhanraji Devi (Dead) and another, after considering the law laid down in Pasupuleti Venkateshwarlu v. Motor & General Traders: (1975) 1 SCC 770 and Hasmat Rai v. Raghunath Prasad: (1981) 3 SCC 103 , has held as under:- 31. 8. The Apex Court, in the aforesaid case of Kedar Nath Agrawal (Dead) and another v. Dhanraji Devi (Dead) and another, after considering the law laid down in Pasupuleti Venkateshwarlu v. Motor & General Traders: (1975) 1 SCC 770 and Hasmat Rai v. 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. The learned lower appellate court to proceed further accordingly." 7. On the other hand, learned counsel for the respondent-defendant submits that it is not a question of permissibility of the amendments, but it was a factual matrix that the respondent is running a girls hostel, and for the sake of privacy, the respondent was to raise a wall, which it has raised while leaving a strip of three feet land, and thus, the petitioner cannot be allowed to agitate his appeal by taking the subsequent development of the respondent leaving three feet of land and constructing a wall, because the same is not relevant to her suit. 8. 8. This Court, looking into the peculiar factual matrix of the case as well as the impugned order, finds that in the given circumstances, it is not required that the learned appellate court accepts the application of the petitioner preferred under Order 6 Rule 17 CPC, as the respondent had constructed the wall after leaving three feet land, and thus, the easementary rights can be easily determined by the learned appellate court, without taking subsequent events on record. 9. In view of the above, no case for interference is made out. 10. Consequently, the present petition is dismissed. All pending applications stand disposed of.