This revision dealt with an application challenging the rejection of a prayer for amendment of a plaint alleging dispossession during suit pendency. The High Court held that amendment allowing subsequent events does not alter the suit's basic structure.
Order rejecting amendment prayer set aside; prayer for amendment allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010132232013
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 393/2013
1:MD. BADSHAH HUSSAIN S/O- MD. MUKHTAR HUSSAIN, R/O- MORAN TOWN, WARD NO. 1, P.S.MORANHAT, DIST.- SIVASAGAR, ASSAM.
VERSUS
1:BUDHIN CHUTIA @ BUDDHINDA CHUTIA S/O- LT. BINDESWAR CHUTIA, R/O- MORAN TOWN, WARD NO. 1, P.S.MORANHAT, DIST.- SIVASAGAR, ASSAM.
Advocate for the Petitioner : MR. GN SAHEWALLA, MR.J KOTOKY MD. ASLAM, MR. P. DEKA, MR. S. MURARKA, ADVS. Advocate for the Respondent : MR. J. AHMED, MS M. AHMED, MR. A HAQUE, ADVS.
BEFORE
HON BLE MR. JUSTICE KALYAN RAI SURANA
JUDGMENT
Date : 07-03-2018
The matter was heard-in-part on 22.02.2018 when this Court had heard Mr. S. Murarka, learned counsel for the petitioner, who had concluded his argument. Today, I have heard Mr.
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J. Ahmed, the learned counsel for the respondent.
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numbers of PVC pipes measuring 20 feet X 4 inch by digging the Schedule-A land and thereby forcibly dispossessed the petitioner from Schedule-A land by converting the same into a pacca path and his door was completely closed and the respondent had also put-up a bamboo door at the ingress of the Schedule-A land. So, the petitioner had filed a prayer for amendment under Order VI Rule 17 CPC, which was registered Misc. (J) Case No.11/2013 hand he prayed for insertion of paragraph-11 (A) and 11 (B) and for incorporating the prayer at paragraph-12 (III) and 12 (IV).
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said prayer on the ground that as the petitioner had filed an application under Order XXXIX Rule 2A CPC, the application under Section 151 CPC cannot be entertained and such provision can be invoked when there is no specific provision in the CPC. It is submitted that after such adverse orders, the petitioner had prayed for amendment of the plaint. It is submitted that as the petitioner had made an application under Order 39 Rule 2A CPC, alleging violation of the injunction order and if the respondent is found guilty of such violation, then only the court is to pass appropriate order. But, no prayer for amendment could be filed and therefore, the prayer for amendment was rightly rejected.
(iii) 2018 (1) GLR 605 (Sayeda Rubia Begum & another -Vs.- Dasarath Pradsad).
(i) (2008) 15 SCC 610 (Ashutosh Chaturvedi -Vs.- Prano Devi @ Parani Devi & Ors) ;
(ii) (2009) 3 SCC 46 (Alkapuri Co-operative Housing Society Ltd. -Vs.- Jayantibhai Naginbhai (deceased) through LRs.); and
(iii) (2011) 12 SCC 268 (State of M.P. -Vs.- Union of India and another).
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events projected in the suit. Consequently, a prayer was sought to be incorporated by way of amendment by praying for decree for khas possession of the Schedule-A land by breaking and dismantling the structure put up and for a decree of khas possession of Schedule-A by removing the earth filling. To the aforesaid facts, this court had examined the submissions made by the learned counsel for the respondent. It was submitted that after a series of petitions being two petitions under Order XXXIX Rule 2 A CPC and an application under Section 151 CPC were field by the petitioner, but no favourable order was ever passed, then only the petitioner had prayed for an amendment. It was also submitted that in order to suppress material facts, copy of the written statement was not submitted and if the respondent had actually violated any interim order, it was open for the learned trial court to pass appropriate order and grant remedy to the petitioner. The said submission does not convince this Court because of the fact that filing of case under Order XXXIX Rule 2A CPC and for pendency of such a case cannot be treated as a bar and/or an impediment for the petitioner to move an application for amendment of the plaint. In the opinion of this Court, an application against the disobedience of order of injunction is a supplementary proceeding within the meaning of Section 94 CPC. In the opinion of this Court, an order passed in supplementary proceeding may not influence the ultimate judgment that should be passed in the suit. Therefore, if the petitioner is aggrieved by the subsequent events which had occasioned after the suit had been filed, he had every right to pray for amendment of subsequent events on record. Naturally, as it has been alleged that the petitioner was dispossessed during the pendency of the suit and by seeking amendment, he would have alleged the existence of new cause of action. But there is no prohibition to incorporate subsequent events in the same suit. The nature of additional reliefs sought for are not found unjustified. Allegation of dispossession during the continuance of the suit cannot be said to be a cause of action which cannot be agitated in the same suit to avoid multiplicity of suit between the same parties.
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injunction, the plaintiff was dispossessed, in the opinion of this Court, the petitioner has a right to ventilate his grievances by filing a new suit and also by amendment of the plaint. Merely because an amendment is allowed would not mean that the learned trial court had decided those issues. By allowing such amendment, the learned trial court is only permitting the pleadings to be brought on record, which is subjected to be proved in course of trial. Therefore, this Court does not find any infirmity in filing of an application for amendment by the petitioner.
“18. There cannot be any doubt or dispute that an application for amendment of the plaint seeking to introduce a cause of action which had arisen during the pendency of
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the suit stands on a different footing than the one which had arisen prior to the date of institution of the suit. We have noticed hereinbefore that the plaintiff-respondents in their application for amendment of the plaint themselves accepted the fact that the appellant herein not only had filed a suit prior in point of time to the suit filed by the deceased respondent but had also obtained an injunction as a result whereof they did not obtain effective possession of the suit land. If that be so, in our opinion, the plaintiff-respondents in effect and substance are seeking to alter the basic structure of the suit which in the case of Sampath Kumar (supra) itself has been held to be impermissible.”
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of different character as it would cause injury and prejudice to the opposite party. In the opinion of this Court, when the petitioner had alleged that he was dispossessed during the pendency of the suit by way of violation of the order of injunction, the courts are not require to take a technical view that such amendment may change the nature of the original claim, because under such circumstances, the only remedy the plaintiff had upon being dispossessed from the suit land was to cause amendment of the plaint, for events which had happened subsequent to filing of the suit.
SD/-
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the trial court erred in rejecting the prayer for amendment of plaint alleging dispossession during suit pendency.
Whether subsequent events during suit pendency can be incorporated via amendment without changing basic structure of suit.
Whether application for amendment alleging violation of interim order constitutes new cause of action barred by law.
Colour shows how this judgement treated each authority
Rajesh Kumar Aggarwal & Ors - Vs. - K.K. Modi & OrsReferred¶27
(2006) 4 SCC 385 · Who else cites this
Rameshkumar Agarwal - Vs. - Rajmala Exports P. Ltd. & othersReferred¶28
(2009) 10 SCC 84 · Who else cites this
Sayeda Rubia Begum & another - Vs. - Dasarath PradsadReferred¶29
2018 (1) GLR 605
Ashutosh Chaturvedi - Vs. - Prano Devi @ Parani Devi & OrsDistinguished¶40
(2008) 15 SCC 610 · Who else cites this
Alkapuri Co-operative Housing Society Ltd. -Vs.- Jayantibhai Naginbhai (deceased) through LRs.Distinguished¶41
(2009) 3 SCC 46 · Who else cites this
State of M.P. -Vs.- Union of India and anotherDistinguished¶46
(2011) 12 SCC 268 · Who else cites this
4 provisions across 2 enactments
MD. BADSHAH HUSSAIN
BUDHIN CHUTIA
KALYAN RAI SURANA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
