Dismissed

Mohammad Abdullah Mir and Ors. v. Mohammad Akbar Ganie

J&K HC13 Oct 2020CM(M)/89/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order allowing amendment of a plaint to include a claim for possession. The court held that amendment was permissible under settled law even after issue framing, the suit nature remained unchanged, and fact-finding is for trial, not amendment hearing.

What did the court decide?

Writ petition under Article 227 dismissed. No amendment of the impugned order.

Mohammad Abdullah Mir and Ors. Vs Mohammad Akbar Ganie — Property and Title | J&K HC (2020)

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S. No. 107

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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

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(Through Video Conference)

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Reserved on 07.10.2020 Pronounced on 13.10.2020

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CM(M) No. 89/2020

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Mohammad Abdullah Mir and others

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...Petitioners(s)

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Through :- Mr. Asif A. Bhat, Advocate (on video call)

V/s

Mohammad Akbar Ganie

.....Respondent (s)

Through :- None.

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE (through Video Conference from residence in Jammu)

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JUDGMENT

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Petitioners have assailed the order dated 29.02.2020 passed by the learned Munsiff, Pulwama in suit titled, “Mohammad Akbar Ganie vs Mohd. Abdullah Mir and others”, by virtue of which, the learned trial court has permitted the respondent/plaintiff to incorporate in the plaint his claim with regard to his dispossession from the part of the suit property during the pendency of the suit and also the amendment in relief part claiming the relief of possession of the land of which the respondent was dispossessed.

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The petitioners have assailed the order impugned inter alia on the grounds that the trial court has permitted the amendment after the commencement of the trial as the court had already framed the issues and had even heard the

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arguments on preliminary issues, wrong facts were allowed to be incorporated in the plaint as the respondent was not dispossessed by the petitioners from the portion of land because he was never in possession of the suit property and lastly, by way of amendment, the trial court has allowed the change in the nature of the suit

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Learned counsel for the petitioners has vehemently argued that as per the mandate of Order-6 Rule 17 of the Civil Procedure Code, the plaint cannot be amended after the trial has commenced and in the instant case the trial had commenced with the framing of issues. He further has vehemently argued that by claiming the relief of possession, the nature of the suit has been allowed to be changed by the learned trial court as the suit initially filed by the respondent was for declaration as well as for permanent injunction and lastly submitted that the court has permitted the respondent to plead the false facts of his dispossession by allowing the amendment of the plaint.

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Heard.

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The scope of interference under Article 227 of Constitution of India is limited. The Apex Court has laid down the parameters for exercising the powers under Article 227 in para-49 of the judgment in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329.

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“ 49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

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( a ) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

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( b ) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

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( c ) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

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( d ) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [AIR 1954 SC 215] and the principles in Waryam Singh [AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

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( e ) According to the ratio in Waryam Singh [AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”.

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( f ) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

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( g ) Apart from the situations pointed in ( e ) and ( f ), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

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( h ) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

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(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.

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( j ) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

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( k ) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

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( l ) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

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( m ) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of

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justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

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( n ) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

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( o ) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.

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Now the contentions raised by the petitioners shall be appreciated in light of law laid down in abovementioned judgment. The first contention of the petitioners that after the framing of issues, the court had got no jurisdiction to allow the amendment is misconceived. No doubt the issues have been framed but it is positive case of the respondent that during the pendency of the suit he has been dispossessed. It is settled law that the plaint can be amended to introduce a cause of action that arose during the pendency of the suit. ( See Sampath Kumar versus Ayyakannu reported in 2002(7)SCC559) . Thus, this contention deserves to be rejected.

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The second contention raised by the petitioners is that the court has allowed the change in nature of the suit. This is a fact that the suit filed by the respondent was for declaration as well as for permanent injunction with regard to the land measuring 2 kanals falling under khasra No. 189/min corresponding to new Survey No. 1120 and 1116 at Village, Chack a Badrinath, Pulwama but

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merely allowing the respondent to incorporate the relief of possession and that too after he was dispossessed during the pendency of the suit, is not going to change the nature of the suit as the possession of the suit property had always been the issue between the parties. More so, it would avoid the multiplicity of the litigation. It would be profitable to reproduce the para 17 of the judgment of Apex Court rendered in case titled Rajesh Kumar Aggarwal v. K. K. Modi, reported in (2006) 4 SCC 385.

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“ 17 . In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit .”

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The suit in the instant case will remain between the same parties with regard to the same subject matter and only relief of possession has been allowed to be incorporated by way of amendment, so this contention also deserves to be rejected.

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The last contention raised by the petitioners that the false facts have been allowed to be incorporated in the plaint by allowing the application of the respondent for amendment of the plaint is also misconceived. It is also settled law that the truthfulness as well as falsity of the facts sought to be incorporated cannot be adjudicated upon while deciding the application for amendment of plaint and the same are to be adjudicated upon during the trial. The para-19 of the judgment (supra) is also relevant and the same is reproduced as under:

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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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