JUDGMENT
Syed Bashir-Ud-Din, J.
1. Respondent No. 1 has filed a suit against petitioners and other respondents for declaration and injunction in respect of property, business conducted by the business concerns/ firms, land and structures and hotel business of Hotel Pamposh Regal Chowk Srinagar ( referred in detail in paras 3 and 4 of plaint and in amended plaint in paras 3, 3A and 4) on grounds averred in the Plaint .The suit is hotly contested by the Revision Petitioners/ defendants to the Suit. Plaintiff and the two defendants are brothers. The suit is instituted in 1997.The suit was scheduled to be taken for hearing on three preliminary issues, the defendants first filed application for amendment of the written statement followed by two applications, one after another by plaintiff for amendment of the plaint. Under directions of the court, the proposed amended plaint was also filed.
2. The trial court of Addl. District Judge Srinagar after hearing the parties allowed the amendment on payment of costs of Rs.5000/-. This order dated 7.7.2003 is under challenge in this revision petition. The submissions of the Ld. counsel for petitioner is that by the proposed amendment, plaintiff is seeking interalia to sue for declaration that he be declared owner entitled to 50% share of M/S Dhar Brothers Corporation Chemicals, Saboon Kocha, Zanakadal Srinagar and M/S Dhar Brothers Corporation, Kashmir Art Palce, Dhar Complex Hari Singh High Street Srinagar, when in respect of these two concerns and property thereof and the shares claimed therein, the plaintiff has omitted to put forth his claim in the original plaint. The claim as also the relief put forth at this stage by prayed amendment is barred by Order 2, Rule 2 C.P.C. Additionally claim is also time barred, therefore, the amendment could not have been allowed by allowing the amendment jurisdictional error is committed by the trial court.
3. The Ld. counsel for plaintiff -respondent No. 1 in reply contends that the matter is not covered by Order 2, Rule 2 C.P.C, as plaintiff respondent has at no stage relinquished or omitted the claim or the relief prayed for. By the amendment the properties have been fully and in detail described and identified, so as to get decision on issue(s) central to the suit and complete and effective determination of the suit. It is to avoid multiplicity of the litigation that the two property are brought in to seek comprehensive decision from the court in respect of all the properties and claim put forth by the plaintiff against his brothers contesting defendadnts. Order 6, Rule 17 CPC, reads as under:-
Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
4. The pleadings can be amended at any stage of proceedings on such terms and in such manner as may be just. All these amendments are permitted to be made which are necessary for purpose of determining real questions between the parties. The court has to be liberal to grant amendment of pleadings subject to the limitation. It is to be refused in case of serious injustice or irreparable loss to other side. The suit and the claim put forth in the un amended plaint is in respect of properties referred to in paras 3 and 4. The para 3 refers to business concerns and firms described therein, besides the averred claim to immoveable property/ land situated at Nigeen Hazratbal, and Zainakadal, in addition to the plea regarding Hotel Pamposh Regal Chowk Srinagar.
5. In para 4, besides pleaded claim regarding above Firms and business concerns, land and house property, the claim is laid to 50% share in the firm M/S Dhar Brothers Corporation at Saboon kocha, Zainakadal Srinagar. Though, it is mentioned that the rights of the partners including rights of his two sons who are partners in the firm are to be taken up at the appropriate time. In para 5, it is stated that as at the time of filing of the suit, plaintiff is concerned with properties mentioned above as owner thereof.
6. By the proposed amendment, besides the reliefs claimed in the unamended plaint, plaintiff has sought a declaration as owner to the extent of 50% share in the firm known as Dhar Brothers Corporation at Sabeen Kocha Zainakadal Srinagar and Dhar Brothers Complex situated at Hari Singh High Street Srinagar. A further declaration is also prayed for declaring plaintiff entitled to share of the Flat situated at M-42 Chitranjan Park South Delhi to the extent of 50% as partner. The title is asserted and ownership and relief(s) prayed for as partner, having invested in the establishment of undertaking, firm and acquisition of other immoveable property. When the original plaint as also the amended application and the proposed amended plaint is read combinedly in between the lines, it is seen that except the flat situated at Delhi, other two properties are referred and mentioned in the original plaint and through the amendment plaintiff has forth-come clearly to seek declaration and other pleaded ownership rights and for the purpose has put forth, the claim and described the properties, specifically in detail and in a distinctly identifiable manner.
7. Viewed thus Order 2, Rule 2 CPC is not applicable to this case having regard to the amendment prayed for and allowed by the trial court, in the facts and circumstances of the case. The rule precluding suing in respect of a claim or relief omitted or relinquished as ennunciated by Order 2, Rule 2 of CPC, is not attracted to this case. The amendment of the Plaint by addition of the claim in question does not defeat the rule precluding suing in respect of alleged omitted or relinquished claim. After all the parties are to be given full range opportunity to put forth the entire case so that all controversy and contested issues interse the parties are disposed of in one go, if there has to be an end to multiplicity of proceedings and litigation. In the original Plaint foundation is laid for all most all the facts with regard to the claim and relief prayed for in the application and the proposed amendment allowed by trial court. A reading, of paras 3,4, and 5 injaxtaposition to other paras of the Plaint, fairly reveal that by the allowed amendment the properties claimed and relief prayed for in the un-amended plaint are fully described, comprehensively put forth and cogently prayed for. Besides the vagueness with regard to description of the subject of the suit and multiplicity of the litigation is avoided. By the allowed amendment the trial court has attempted promotion and effectual adjudication of the Suit interse the parties and at the same time addressed its concern to avoid multiplicity of the litigation. While imposing the costs, the trial court is also alive to the circumstance that though the suit is at pre evidence issue stage, yet some laxity is noticeable in seeking amendment in question.
8. The contention with regard to limitation allegedly not focused on by the trial court, being a legal issue it would not be proper at this stage to deal with the question if suit is barred by limitation more so when the suit is yet to go to trial on the issues raised and arising in the suit. It would suffice for purposes of this revision to observe that by the amendment in question, the question of limitation would not be deemed to be conclusively determined one way or the other when the question of limitation in this case is not primal and central to the question of allowed amendment.
9. The authority cited Shanti Kumar R. Chanji Vs. The House Insurance Co. of New York , AIR 1974 SC: 1719 though not applicable to the facts and circumstances of the case at hand yet following observation is noticed:-
Even with regard to discretionary orders the appellate Court can interfere where the order is insupportable in law or is unjust. The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is out weighed by the special circumstances of the case. ( See Charan Das V. Amir Khan 47 Ind App 255= (AIR 1921 PC 50). The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim.
10. Kewal Singh Vs. Mst. Lajwanti, ( AIR 1980 SC: 161) cited on the question of applicability of Order 2, Rule 2 CPC, is not at all applicable to this case. In this case the test to determine the applicability of Order 2, Rule 2 CPC, is pointed out but the case revolves round the suit claim on three distinct causes of action of a landlady against the tenant under the Delhi Rent Control Act 1958. The court in the facts of the case and on prime consideration that the claims sought to be put forth by amendment were based on distinct causes of action held that the amendment is not barred by the principles of Order 2, R 2 CPC.
11. The Counsel has also referred to Sidramappa vs. Rajashetty (AIR 1970 Supreme Court : 1059). It is seen that while dealing with applicability and requirement of Order 2 Rule 2 CPC, Supreme Court has observed:-
That every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action . `Cause of action’ means the `cause of action for which the suit was brought’.
12. The Court examined the requirement of Order 2, Rule 2 CPC, in the subsequent suit in the context of the earlier suit/ proceedings and found plea of applicability of O.2, R.2 as misconceived. The cause of action basis of previous suit if enables the party to ask for a larger and wider relief, then the cause of action and foundation of the subsequent suit falls beyond the principles of Order 2, Rule 2 CPC, provided the person does not limit his claim within the para- meters of earlier relief claimed.
13. In the above view of the matter, the impugned order is seen neither to suffer from any jurisdictional error nor is found legally infirm. The exercise of discretion within confines of jurisdiction is just and proper. Accordingly the revision petition is dismissed. Having said so, the trial court to take notice and follow the procedural law adumbrated in following terms in para 17 of the judgment of the Apex Court in Gurdial Singh and others Vs. Raj Kumar Aneja and others ( 2002 AIR SCW 718):-
17. Thus, once a prayer for amendment is allowed the original pleading should incorporate the changes in a different ink or an amended pleading may be filed wherein with the use of a highlighter or by underlining in red the changes made may be distinctly shown. The amendments will be incorporated in the pleading by the party with the leave of the Court and within the time limited for that purpose or else within fourteen days as provided by Order 6, Rule 18 of the CPC. The Court or an officer authorized by the Court in this behalf may compare the original and the amended pleading in the light of the contents of the amendment application and the order of the Court permitting the same and certify whether the amended pleading conforms to the order of the Court permitting the amendment. Such practice accords with the provisions of Code of Civil Procedure and also preserves the sanctity of record of the Court. It is also conductive to the ends of justice inasmuch as by a bare look at the amended pleading the Court would be able to appreciate the shift in stand, if any, between the original pleading and the amended pleading. These advantages are in addition to convenience and achieving maintenance of discipline by the parties before the Court. Amendments and consequential amendments, allowed by the Court and incorporated in the original pleadings, would enable only one set of pleadings being available on record and that would avoid confusion and delay at the trial.
14. Disposed of. Send back record.