Anil Kumar Vs Rajni

The present petition is directed against the order dated 12.6.2023, passed by learned Senior Civil Judge, Kullu, District Kullu, H.P., vide which the application for amendment filed by the respondent (plaintiff before the learned Trial Court) was allowed. (Parties shall hereinafter be referred to in the same

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manner as they were arrayed before the learned Trial Court for

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convenience).

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit seeking a permanent prohibitory injunction for restraining the defendant from dismantling/uprooting the old dilapidated house of the plaintiff existing over the land comprised in Khata/Khatauni No. 982/1275, bearing Khasra No. 738, measuring 02-07-00 bigha, situated in Mohal and Fati Dhalpur, Tehsil and District Kullu, H.P. (hereinafter referred to as the suit land). It was asserted that Ram Nath, father of the parties, was the absolute owner in possession of an old 2½ storeyed slate-roofed house along with Khal/Courtyard. He bequeathed the same to the plaintiff through a registered Will dated 2.2.1996. The plaintiff is in possession of the house. She is residing in her matrimonial home at Shangri Bag. The house became dilapidated. The defendant was residing separately from his father. He was given one house standing over the Abadi land measuring 11 ft. in length and 30 ft. in breadth along with the toilet, measuring 8 ft. in length and 9 ft. in breadth at Ghangheri, Upper Sultanpur, Fati Dhalpur, Kullu. The defendant started uprooting and dismantling the house existing over the suit land. He was

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requested not to do so but in vain. Hence, the suit was filed to seek the relief mentioned above.

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An application for seeking ad-interim injunction was also filed along with the plaint which was opposed by the defendant.

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The plaintiff filed an application seeking amendment in the application under Order 39 Rules 1 and 2 CPC asserting that the defendant uprooted the old house during the pendency of the suit and raised six RCC Pillars on the suit land. She had approached Patwari, Patwar Circle Dhalpur to ascertain the Khasra number and she was verbally informed that her house existed on Khasra No. 738. She subsequently came to know that her house exists on Khasra No. 746, comprised in Khata/Khatauni No. 1787 min/2278 min, measuring 00-07-00 bigha in Mohal and Fati Dhalpur instead of the suit land mentioned in the plaint. This fact came to the notice of the plaintiff when the Local Commissioner visited the spot with Kanungo and Patwari and demarcated the land. Hence, it has become necessary to incorporate the exact Khasra number and

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to seek the relief of demolition of the construction so raised by the defendant.

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The application was opposed by filing a reply taking preliminary objections regarding lack of maintainability and the proposed amendment would change the nature of the suit. It was asserted that the defendant had inherited two structures from his father as per the Will, located in Khasra No. 746. He had uprooted one of the structures and raised a concrete slab over the same. The defendant did not raise any construction over Khasra No. 738. Hence, it was prayed that the present application be dismissed.

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The learned Trial Court held that the suit was at an initial stage. A written statement was yet to be filed. The plea of the plaintiff regarding an inadvertent mistake while mentioning the Khasra number appeared to be acceptable. The necessity to seek the relief of mandatory injunction arose due to the construction raised by the defence. Hence, the application was allowed.

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Being aggrieved from the order passed by the learned trial court, the defendant filed the present petition asserting

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that the learned Trial Court erred in allowing the application. Order 7 Rule 1 and Order 7 Rule 3 provide that the plaintiff shall mention the description of the property with sufficient detail to identify it. The learned Trial Court permitted the plaintiff to amend the application under Order 39 Rules 1 and 2, which does not fall within the definition of the pleadings. The very basis of the application would be changed by changing the khasra number. Learned Trial Court failed to appreciate this fact. The plaintiff cannot substitute a cause of action. The suit was liable to be dismissed for non-identification of the case property and learned Trial Court failed to notice this fact. It permitted the plaintiff to fill up the lacuna left in the plaint. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

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I have heard Mr. Karan Singh Kanwar, learned counsel for the petitioner and Mr. Madan Gopal, learned counsel for the respondent/plaintiff.

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Mr. Karan Singh Kanwar, learned counsel for the petitioner submitted that the learned Trial Court erred in allowing the application for amendment of the application

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under Order 39 Rules 1 and 2 CPC. The provisions of Order 6 Rule 17 only applies to the pleadings, which mean the plaint and the written statement. Learned Trial Court erred in extending these provisions to the application under Order 39 Rules 1 and 2, therefore, he prayed that the present petition be allowed and the order passed by learned Trial Court be set aside.

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Mr Madan Gopal, learned counsel for the respondent/plaintiff supported the order passed by the learned Trial Court and submitted that no interference is required with the same.

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I have given considerable thought to the

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submissions at the bar and have gone through the record carefully.

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The present petition has been filed under Article 227 of the Constitution of India. It was laid down by the Hon’ble Supreme Court in Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181: (2022) 2 SCC (Civ) 424: 2022 SCC OnLine SC 29 that the power under Article 227 of the Constitution of India is correctional to set right grave dereliction of duty, flagrant abuse

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or violation of the fundamental principle of law or justice. It was observed:

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15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [ Prakash Chand Goel v. Garment Craft , 2019 SCC OnLine Del 11943 ] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, or reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [ Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217: (2010) 1 SCC (Civ) 69 ] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

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16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 ] has observed: (SCC pp. 101-102, para 6)

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“ 6 . The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power

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under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.”

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Mr. Karan Singh Kanwar, learned counsel for the

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defendant/petitioner submitted that as per Order 6 Rule 1 CPC, the pleadings mean plaint or written statement and do not include the application and reply. Learned Trial Court erred in allowing the amendment of the application under Order 6 Rule 17 of CPC. This submission is not acceptable. Section 141 of the CPC provides the procedure provided in the Code regarding the suit shall be followed as far it can be applicable to all proceedings in any Court of civil jurisdiction. This means that

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the provisions of CPC will apply to the application for an interim injunction. While applying the provisions of CPC, the words are to be modified suitably. So modified, the plaint shall be read as an application in the proceedings for interim injunction and the submission that the learned Trial Court erred in allowing the application cannot be accepted.

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The copy of the report of the Local Commissioner shows that Khasra No. 738 was identified by Settlement Patwari, Dhalpur. The suit land was demarcated with the help of Jareb and no construction was found in Khasra No. 738. The construction which was being raised by the defendant was over the land bearing Khasra No. 746 which was about 30 mtrs. away from the suit land.

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This report probabilizes the averment in the application that Patwari had identified the suit land as Khasra No. 738. He had also done so in the presence of the Local Commissioner. It was found only after demarcation that construction was being raised on Khasra No. 746 and not on Khasra no. 738 Hence, the plea of the plaintiff that she

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mentioned an incorrect Khasra number due to a bona fide error has to be accepted as correct.

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It was laid down by the Hon’ble Supreme Court in Shivshankara v. H.P. Vedavyasa Char, 2023 SCC OnLine SC 358=AIR

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2023 SC 1780 that all amendments are to be allowed which are necessary for determining the real question in controversy between the parties and which do not cause any loss to another side that cannot be compensated in terms of money. It was observed:-

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20. In the contextual situation, it is relevant to refer to the decision of this Court in Gayathri Women's Welfare Association v. Gowramma (2011) 2 SCC 330² wherein the observation in the decision of this Court in Pandit Ishwardas v. State of Madhya Pradesh(1979) 4 SCC 163 3 at paragraph 34 which was quoted with agreement, as under:—

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“34. In Ishwardas , it has been observed as follows (SCC P. 166, Para 5):

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5. There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate court should observe the wellknown 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

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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.”

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21. After quoting the same it was observed in the Gayathri Women's Welfare Association's case (supra) thus:—

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“These observations clearly indicate that 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 sage, the reason why it was not sought in the trial court.”

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This position was reiterated in Ganesh Prasad v. Rajeshwar Prasad, 2023 SCC OnLine SC 256 wherein it was observed:

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33. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511 , the law has been laid down by this Court in the following terms : (SCC p. 517, para 16)

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“ 16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was

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held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar [(1990) 1 SCC 166] .)”

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35. In B.K. Narayana Pillai v. Parameswaran Pillai reported in (2000) 1 SCC 712 , this Court referred to the following passage from A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in AIR 1967 SC 96 wherein, it was held as follows:—

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“ 4. This Court in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn. [AIR 1967 SC 96 : (1966) 1 SCR 796] held:

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“The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on a new case or cause of action is barred: Weldon v. Neal [[L.R.] 19 Q.B. 394: 56 LJ QB 621]. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan [AIR 1921 PC 50: ILR 48 Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357: 1957 SCR 438]

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The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their

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mistakes (Cropper v. Smith [[L.R.] 26 Ch. 700: 53 LJ Ch 891: 51 LT 729]) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644: 11 Bom LR 1042] approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363: 1957 SCR 595]).

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The expression cause of action in the present context does not mean ‘every fact which it is material to be proved to entitle the plaintiff to succeed’ as was said in Cooke v. Gill [[L.R.] 8 C.P. 107: 42 LJCP 98: 28 LT 32] in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd. [[1962] 2 All ER 24 (CA)] and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words ‘new case’ have been understood to mean ‘new set of ideas ’: Dornan v. J.W. Ellis and Co. Ltd. [[1962] 1 All ER 303 (CA)] This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.”

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Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court held : (SCC p. 399, para 22)

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“The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought

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to be the care and circumspection on the part of the court.”

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In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it was held : (SCC p. 93, para 4)

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“4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.”……”

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36. In one of the recent pronouncements of this Court, in the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited , Civil Appeal No. 5909 of 2022 dated 01.09.2022, the position of law has been explained as under:

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“70. ….. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.

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(iii) The prayer for amendment is to be allowed

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(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

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(ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side ,

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(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

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(c) the amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations).

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(iv) A prayer for amendment is generally required to be allowed unless

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(i) by the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration ,

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(ii) the amendment changes the nature of the suit , (iii) the prayer for amendment is malafide, or

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(iv) by the amendment, the other side loses a valid defence.

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(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

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(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

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(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after the expiry of limitation.

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(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

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(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

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(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

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(xi) Where the amendment is sought before the commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in the amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)”

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37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for the determination of the real

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controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.

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38. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.

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It was held by the Madhya Pradesh High Court in

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Ameena Bee v. Abdul Jabbar, 2023 SCC OnLine MP 3511 that the amendment in the description of the suit property does not amount to the change in the cause of action or the nature of the suit. It was observed:

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10. Perusal of the copy of the plaint and the agreement to sell which are on record, reveals that initially in the plaint, the name of the defendant/petitioner and boundaries of the suit property were mentioned on the basis of the agreement to sell, but perusal of amendment application filed by the respondent/plaintiff reveals that in the said application, amendment is sought on the ground that the boundaries as mentioned initially in the plaint and agreement to sell are not correct and are different from that on the spot. A perusal of the plaint filed by the respondent/plaintiff reveals that the plaintiff has filed the present suit on the ground that he is the owner of the suit property and was in possession of the suit property and he rented the same to the petitioner/defendant. Therefore, the question for determination before the trial Court is;

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“a. Whether the respondent/plaintiff is the owner of the suit property and was in possession of the suit property and rented the same to the petitioner/defendant @ Rs. 8000/- per month?

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b. Whether the respondent/plaintiff is entitled to recover the possession of the suit property from the petitioner/defendant etc.?”

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11. Further, it is apparent that the present suit is at an initial stage, the written statement has been filed by the petitioner/defendant and the trial has not commenced. The petitioner/defendant has opportunity to file application for consequential amendment and no injustice or irreparable loss is caused to the petitioner/defendant on account of the proposed amendment. In the considered opinion of this Court, the proposed amendment is also necessary for complete and effective adjudication of the dispute between the parties and to avoid multiplicity of proceedings. It cannot be said that the proposed amendment changes the nature of the suit. It only clarifies/changes the description of the property and not the property itself.

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In the present case also, the plaintiff is substituting

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Khasra number which was wrongly mentioned by her as per advice of the Patwari. It is necessary to mention the correct khasra number to effectively adjudicate the dispute between the parties. The suit is at the initial stage. The defendant has not even filed the written statement and he will not suffer any loss which can not be compensated in terms of money.

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The need to incorporate the plea of mandatory injunction arose because the construction was raised during the pendency of the suit. Hence, this amendment could not have been sought earlier.

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It was submitted that the averments in the application are false because no construction has been raised during the pendency of the suit. This submission cannot be accepted at this stage. It was laid down by the Hon’ble Supreme Court in Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 : 2006 SCC OnLine SC 320 that truthfulness or otherwise of the pleadings is not to be seen while deciding the application for amendment. It was observed:

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19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.

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Hence no advantage can be derived from the plea that

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the averments in the application are false.

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Thus, the learned Trial Court had rightly exercised its discretion for amendment of the plaint. It was laid down by the Hon’ble Supreme Court in Puran Ram v. Bhaguram, (2008) 4 SCC 102: 2008 SCC OnLine SC 407 that the High Court should not interfere with the discretion exercised by the learned Trial Court

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while deciding the application for amendment unless the order is without jurisdiction, perverse or arbitrary. It was observed:

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18. We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which, in the discretion of the trial court, was allowed. We are of the view that the High Court ought not to have interfered with the order of the trial court when the order of the trial court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial court was either without jurisdiction or perverse or arbitrary.

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In view of the above, there is no infirmity in the order

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passed by the learned Trial Court. Hence, the present petition fails and the same is dismissed.

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The observation made here-in-above shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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Interim order granted by the Court, vide order dated 11.3.2024, stands vacated.

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A copy of this order be sent to the learned Trial Court. Parties through respective counsel are directed to appear before learned Trial Court on 10.07.2024.

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( Rakesh Kainthla) Judge

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15^th June, 2024 (Chander)

Anil Kumar v. Rajni

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