CR No.5150 of 2004 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5150 of 2004
Date of Decision: 06 - 10 - 2009
Kailash and another ....Petitioner
v.
Yasina and others ....Respondents
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.Naresh Prabhakar, Advocate
for the petitioners.
Mr.Amit Kumar Jain, Advocate
for respondent Nos.1, 2 and 4.
***
KANWALJIT SINGH AHLUWALIA, J.
Kailash son of Kishan, his mother Smt. Savitri has preferred the
present revision petition. They are aggrieved against the order dated
7.9.2004 passed by Addl. Civil Judge (Sr. Division), Ferozepur Jhirka,
whereby their application for amendment of the plaint was rejected.
Petitioners herein had instituted a suit on 31.1.1996 for permanent
injunction. Ad-interim injunction restraining the defendants from interfering
in their peaceful possession over the suit land was granted and affirmed on
17.5.1996. On account of non appearance of the petitioner-plaintiffs and
their counsel, the suit was dismissed in default on 7.12.1996. An
application for restoration of the suit was filed by the petitioner-plaintiffs on
CR No.5150 of 2004 [2]
20.5.1996 and the case was restored at its original number on 14.8.1997.
The case of the petitioner-plaintiffs is that after dismissal of the
suit in default, defendant Nos.1,2 and 3 encroached upon the suit property
and raised some construction by building walls and rooms on the suit
property. The petitioner-plaintiffs projected that since construction had
been raised by the defendants after institution of the suit, they are entitled to
the relief of mandatory injunction and grant of prayer for demolition of
walls and rooms built by defendant Nos.1 to 3, therefore, a prayer had been
made that they be allowed to amend the plaint by adding para 3-A and
amend para 8 of the plaint as per the details given in para 4 of the
application for amendment. Respondent-defendants filed reply to the
application. In the application so filed, preliminary objection regarding
maintainability, mala fide, estoppel and misuse of process of law were
pleaded. On merits, it was denied that they had encroached upon any part of
the suit land. It was asserted that respondent-defendants are owners in
possession of their own land and the petitioner-plaintiffs are not entitled to
alleged relief of mandatory injunction, therefore, their application for
amendment of the plaint is liable to be rejected. It was urged that by
proposed amendment, petitioner-plaintiffs intend to change very nature of
the suit.
The Court below formulated an opinion that amendment of the
plaint is not warranted, as the applicant-plaintiffs had given no date on
which alleged encroachment over the property was made. The Court below
was of the view that the suit was dismissed in default on 7.12.1996, restored
on 14.8.1997, thus, technically no suit was pending even though application
for restoration of the suit was pending. It was held by the Court below that
CR No.5150 of 2004 [3]
the application for restoration was filed on 20.12.1996, whereas suit was
dismissed in default on 7.12.1996. The possibility that the construction was
raised in between cannot be ruled out. On this premise, the amendment of
the plaint was dis-allowed.
Mr.Naresh Prabhakar, learned counsel appearing for the
petitioner-plaintiffs has relied upon Ragu Thilak D. John v. S. Rayappan
and others, AIR 2001 SC 699 and has canvassed that for allowing
amendment, the Court should adopt liberal approach in order to minimise
the litigation. Paragraphs 5 and 6 in Ragu Thilak D. John’s case (supra)
relied upon by the learned counsel read as under:-
“5. After referring to the judgments in Charan Das v.
Amir Khan, AIR 1921 PC 50, L.J.Leach & Co. Ltd. v. Jardine
Skinner & Company, 1957 SCR 438: (AIR 1957 SC 357),
Smt.Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393: (AIR 1974
SC 1126), M/s. Ganesh Trading Co. v. Moji Ram, (1978)2 SCC
91: (AIR 1978 SC 84) and various other authorities, this Court
in B.K.N.Pillai v. P. Pillai, (1999)10 JT (SC) 61: (2000 AIR
SCW 43: AIR 2000 SC 614) held: (Para 3):
“The purpose and object of Order 6, Rule 17,
C.P.C. is to allow either party to alter or amend his
pleadings in such manner and on such terms as may be
just. The power to allow the amendment is wide and can
be exercised at any stage of the proceedings in the
interests of justice on the basis of guide-lines laid down
by various High Courts and this Court. It is true that the
amendment cannot be claimed as a matter of right and
CR No.5150 of 2004 [4]under all circumstances. But it is equally true that the
Courts while deciding such prayers should not adopt
hypertechnical approach. Liberal approach should be the
general rule particularly in cases where the other side can
be compensated with the costs. Technicalities of law
should not be permitted to hamper the Courts in the
administration of justice between the parties.
Amendments are allowed in the pleadings to avoid
uncalled for multiplicity of litigation.
6. If the aforesaid test is applied in the instant case,
the amendment sought could not be declined. The dominant
purpose of allowing the amendment is to minimise the
litigation. The plea that the relief sought by way of amendment
was barred by time is arguable in the circumstances of the case,
as is evident from the perusal of averments made in paras 8(a)
to 8(f) of the plaint which were sought to be incorporated by
way of amendment. We feel that in the circumstances of the
case the plea of limitation being disputed could be made a
subject matter of the issue after allowing the amendment prayed
for.”
Counsel for the petitioners has further relied upon Sampath Kumar v.
Ayyakannu and another, 2002(2) PLJ 445 wherein their Lordships of the
Hon’ble Apex Court had observed as under:-
“11. In the present case the amendment is being sought
for almost 11 years after the date of the institution of the suit.
The plaintiff is not debarred from instituting a new suit seeking
CR No.5150 of 2004 [5]relief of declaration of title and recovery of possession on the
same basic facts are are pleaded in the plaint seeking relief of
issuance of permanent prohibitory injunction and which is
pending. In order to avoid multiplicity of suits it would be a
sound exercise of discretion to permit the relief of declaration
of title and recovery of possession being sought for in the
pending suit. The plaintiff has alleged the cause of action for
the reliefs now sought to be added as having arisen to him
during the pendency of the suit. The merits of the averments
sought to be incorporated by way of amendment are not to be
judged at the stage of allowing prayer for amendment.
However, the defendant is right in submitting that if he has
already perfected his title by way of adverse possession then
the right so accrued should not be allowed to be defeated by
permitting an amendment and seeking a new relief which
would relate back to the date of the suit and thereby depriving
the defendant of the advantage accrued to him by lapse of time,
by excluding a period of about 11 years in calculating the
period of prescriptive title claimed to have been earned by the
defendant. The interest of the defendant can be protected by
directing that so far as the reliefs of declaration of title and
recovery of possession, now sought for, are concerned the
prayer in that regard shall be deemed to have been made on the
date on which the application for amendment has been filed.
12. On the averments made in the application, the
same ought to have been allowed. If the facts alleged by the
CR No.5150 of 2004 [6]plaintiff are not correct it is open for the defendant to take such
plea in the written statement and if the plaintiff fails in
substantiating the factual averments and/or the defendant
succeeds in substantiating the plea which he would obviously
be permitted to raise in his pleading by way of consequential
amendment then the suit shall be liable to be dismissed. The
defendant is not prejudiced, moreso when the amendment was
sought for before the commencement of the trial.”
Mr.Amit Kumar Jain, learned counsel appearing for respondent
Nos.1, 2 and 4 has urged that issues in the present case were framed on
17.5.1996 after completion of pleadings and the case was fixed for
plaintiffs’ evidence on 7.12.1996. On 7.12.1996 instead of leading any
evidence, plaintiffs remained absent from the Court and their case was
dismissed in default. Application for restoration of the case was filed on
20.12.1996 and thereafter the case was restored on 14.8.1997. It was urged
that application for amendment of the plaint was filed after a period of
seven months.
Counsel for the respondent-defendants has further submitted
that on 14.1.1997 suit land was demarcated by the revenue officials on the
application moved by Kailash petitioner-plaintiff and it was found on that
day that pucca construction of the suit land was already existing and no
fresh construction had been raised. According to counsel for the
respondent-defendants, petitioner-plaintiffs have not come to this Court
with clean hands. It was further submitted that after framing of issues, the
trial commenced and, therefore, amendment cannot be allowed.
The impugned order was passed on 7.9.2004. On 19.11.2004,
CR No.5150 of 2004 [7]this Court had stayed further proceedings before the trial Court. After
hearing counsel for the parties, this Court is of the view that prayer for
amendment must satisfy two conditions (i) that it is not causing injustice to
the other side; and (ii) the proposed amendment is necessary for the purpose
of determining the real questions in controversy between the parties. On
both the counts, petitioners are entitled to succeed and their prayer for
amendment of the plaint ought to be allowed. It will not only avoid
multiplicity of litigation but can also take notice of subsequent events.
However, the plea raised by counsel for the respondent-defendants that
there is delay on the part of the petitioner-plaintiffs to approach the Court, I
am of the view that for this lapse, the respondent-defendants can be
compensated by awarding costs. Thus, the present revision petition is
allowed. The petitioners are permitted to amend the plaint. However, for
the delay in approaching the trial Court, the respondent-defendants are
required to be compensated by fastening the petitioners with costs of
Rs.5,000/-. On deposit of costs, the application for amendment of the plaint
shall be allowed by the trial Court.
( KANWALJIT SINGH AHLUWALIA ) October 6, 2009 JUDGE RC