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2025 DIGILAW 483 (HP)

Pradeep Singh v. Shurveer Singh

2025-03-25

SATYEN VAIDYA

body2025
JUDGMENT : (Satyen Vaidya, J.) Heard. 2. Petitioners are defendants and respondent is plaintiff in Civil Suit No. 47/1 of 2020 pending on the files of learned Senior Civil Judge Paonta Sahib, District Sirmaur (hereinafter referred to as the trial court). 3. Defendants are before this Court against the order dated 5.8.2020, passed by the learned trial Court in an application under Order 6 Rule 17 of the Code of Civil Procedure, filed by the plaintiff. 4. Learned trial Court vide impugned order has allowed the prayer of the plaintiff for amendment of plaint. 5. The facts necessary for adjudication of the petition are that on 18.6.2020, the plaintiff filed a suit before learned trial Court with the averments that he along with other co-sharers was owner in possession of land comprised in Khata/ Khatauni Nos. 52/211, Kitas 24, total measuring 28-4 bighas, situated in Mohal Kando-Cheog, Tehsil Paonta Sahib, District Sirmour, H.P (for short the ‘suit land’). Defendants were strangers to the suit land. The defendants had their old house on the lower side of the suit land which was under reconstruction. In such process, defendants had indulged in acts prejudicial to the rights of the plaintiff over suit land. 6. In this background, a prayer for decree of permanent prohibitory injunction and in alternative mandatory injunction was made. 7. Learned trial Court issued notice to the defendants. On the first date, when the defendants appeared before the learned trial Court, an application for amendment of plaint came to be filed by the plaintiff. He sought an amendment to the effect that the suit land had been wrongly described in the original plaint and in fact suit land was comprised in Khata-Khatauni No. 204/604, Khasra No. 1714, measuring 0-7 bighas situated in Mohal Kando-Cheog, Tehsil Paonta Sahib, District Sirmour, H.P. 8. Thus, plaintiff proposed amendment to the plaint as under:- “a. Proposes to substitute “Khata Khautani No. 204/604 Khasra No. 1714 measuring 0-7 bighas” in place of “Khata Khautani No. 52/211 Kita 24 measuring 48-4 bighas” in the title, para No.1 of the plaint and prayer clause of suit and the application u/o 39 rule 1 and 2 CPC and also wherever it appears otherwise in the suit and application as description of the suit land”. 9. 9. Though, a prayer for amendment was opposed by the defendants, however, the learned trial Court vide impugned order found merit in the application and allowed the amendment. 10. Mr. G.D. Verma, learned Senior Advocate appearing for the defendants has contended that the amendment as ordered by the learned trial Court amounts to change the entire subject matter of the suit. He submitted that the suit initially was for some other land and now the plaintiff by moving the amendment has sought to incorporate the cause of action with respect to some other land, which is not permissible and will amount to change in cause of action. He made reference to the contents of original plaint, wherein the plaintiff has specifically made a reference to interference being caused by the defendants over the land comprised in Khata- Khatauni No. 52/211, Kitas 24 total measuring 48-4 bighas. He also referred to the averments in the plaint, whereby the plaintiff has admitted the existence of construction of defendant’s house even prior to filing of the suit. On such premise, it has been submitted that when the plaintiff already was admitting some construction having been raised by the defendants on suit land, the suit for injunction could not have been maintained. 11. Learned Senior Counsel for the defendants has made submission that the conduct of the plaintiff has not been bonafide. He approached the learned trial Court with wrong facts with intention to claim an interim order, which eventually was granted in his favour and is operative even till date. 12. Another submission raised by the learned Senior Counsel for the defendants is that though, the plaintiff has sought amendment on the ground that he came to know about the correct description of the land after getting it demarcated but he has not placed on record any demarcation report. 13. It has also been contended that the plaintiff had not been diligent in pursuing his matter. 14. 13. It has also been contended that the plaintiff had not been diligent in pursuing his matter. 14. Learned Senior Counsel for the defendants has placed reliance on para-36 of the judgment passed by the Hon’ble Supreme Court in Asian Hotels (North)Ltd. vs. Alok Kumar Lodha & others, (2022) 8 SCC 145 which reads as under:- “The High Court while allowing the amendment application in exercise of powers under Order 6 Rule 17 of the Code of Civil Procedure has not properly appreciated the fact and/or considered the fact that as such, by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges/mortgages void abinitio, the nature of the suits will be changed. As per the settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action”. 15. Similarly, reliance has also been placed on paragraphs No. 18 and 19 of the judgment passed by the Hon’ble Supreme Court in Usha Balashaheb Swami & others vs. Kiran Appaso Swami & others, (2007) 5 SCC 602 which read as under:- “18. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung [ AIR 1922 P.C. 249 ] may be taken note of. The Privy Council observed: "All rules of courts 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." 19. (Underlining is ours) It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable”. 16. Per contra, Sh. Karan Singh Kanwar, learned counsel for the plaintiff has submitted that the amendment allowed in favour of the plaintiff will not change the nature of the suit or the cause of action because what is sought to be changed is the description of the land as per revenue records and not the identity or location thereof. 17. Having considered the rival contentions of the learned counsel for the parties, I am of the considered view that the impugned order needs no interference for the reasons detailed hereafter. 18. The original plaint was instituted by the plaintiff on 18.6.2020. As per contents of the instant petition the plaintiff had filed the application for amendment of the plaint on 18.7.2020 for which date the defendants were served and had put in their first appearance. Thus, no delay can be attributed to the plaintiff in filing the application for amendment, which was filed by him at the first available opportunity. 19. The plaintiff has averred in the application for amendment that he had to file the initial suit in a hurry, as he was apprehending immediate damage to the suit land by the acts of defendants. He could not get the land identify immediately, which he did after filing of the suit and while getting the demarcation from the revenue officer, it was found that the land of the plaintiff abutting the land of defendants was comprised in Khata-Khatauni No. 204/604, Khasra No. 1714, measuring 0-7 bighas in village Kando-Cheog, Tehsil Paonta Sahib, District Sirmaur. 20. He could not get the land identify immediately, which he did after filing of the suit and while getting the demarcation from the revenue officer, it was found that the land of the plaintiff abutting the land of defendants was comprised in Khata-Khatauni No. 204/604, Khasra No. 1714, measuring 0-7 bighas in village Kando-Cheog, Tehsil Paonta Sahib, District Sirmaur. 20. It is more than settled that at the time of considering the prayer for amendment of pleadings, truthfulness or falsity of the claim so made by the party seeking amendment is not required to be gone into. In my considered view, the plaintiff has rendered reasonable explanation for not incorporating the correct description of the suit land in the original plaint. 21. In the circumstances detailed above, there is no reason to suspect bonafide of plaintiff in seeking the amendment. Further, as the amendment has been sought at the very initial stage of the suit when the defendants have yet to enter their defence, the same is not going to cause any prejudice to the defendants. 22. Looking at the nature of amendment allowed in favour of the plaintiff, it cannot be said that it has changed the nature of the suit. The original cause of action pleaded by the plaintiff is that he is owner in possession of certain land and defendants are trying to interfere with the rights of the plaintiff over such land under garb reconstruction of their old house on adjoining land. The only difference in the original plaint and subsequent amendment is with respect to description of the land. It is not that the plaintiff has changed the identity or location of the suit land. According to plaintiff, the land remains the same but he had not been able to describe it properly and accurately. In this view of the matter, the judgments relied upon by the learned Senior Counsel for the defendants will not help the cause of defendants. 23. As regards the due diligence of plaintiff, it can be again seen that the reasonable explanation has been rendered by him. Even otherwise as the amendment has been sought before commencement of trial the bar created by the proviso to Order 6 Rule 17 CPC will not apply. 24. The amendment also cannot be said to be not necessary of adjudication of real matter in controversy. 25. Even otherwise as the amendment has been sought before commencement of trial the bar created by the proviso to Order 6 Rule 17 CPC will not apply. 24. The amendment also cannot be said to be not necessary of adjudication of real matter in controversy. 25. As regards the ex-parte interim injunction granted by the learned trial Court in favour of the plaintiff and its pendency for such a long period again the plaintiff cannot be faulted for the same. The defendants had due opportunity to contest the claim of plaintiff on merits but they instead chose to approach this Court against the impugned order and it is on their prayer that the proceedings in the suit before the learned trial Court came to be stayed vide order dated 27.8.2020. 26. In result, I find no merit in the petition and the same is accordingly dismissed. Pending application, if any, also stand disposed of.