Bibijaan Vs Mohammed Hussain

RESPONDENTS NO.1 TO 6 ARE R/AT M.A.S WOOD SAW MILL, NEAR VIDYA NAGAR, MEDEHALLI GRAMA LIMITES, ADJACENT TO N.H.4,SERVICE ROAD, CHITRADURGA CITY 577501.

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…RESPONDENTS

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(BY SRI. N SRINIVAS.,ADVOCATE FOR R1, R2, R5 & R6; R3 & R4 ARE SERVED)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TOQUASH THE ORDER PASSED BY THE LEARNED 2ND ADDL. CIVIL JUDGE AND JMFC CHITRADURGA IN O.S.NO.226/2018 DTD.28.9.2021 ON IA NO.4 PRODUCED AS ANNEXURE-G TO THE W.P ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL ORDER

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The present petition has been filed seeking to challenge an order dated 25.10.2021 in O.S.No.226/2018 passed by the learnedII Additional Civil Judge & JMFC, Chitradurga (hereinafter referred to as the “Impugned Order”). By the Impugned Order, I.A.No.4 filed by the petitioners/plaintiffs under Order VI Rule 17 read with Section 151 of CPC, 1908 has been dismissed.

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It is the case of the petitioners/plaintiffs that they

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have filed a suit for declaration and permanent injunction in respect of the suit scheduled property. The petitioners/plaintiffs submit that they have right in the suit schedule property. However, it is contended that the defendants are interfering with their peaceful possession and are also claiming rights on the suit schedule property. The suit was filed with the following prayers:-

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"a) To declare that the plaintiffs were all absolute lawful owners with possession and enjoyment over suit schedule property under the rule of Inheritance and succession of Mohammadan Law over suit schedule property by granting decree of declaration.

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(b) To grant decree of permanent injunction restraining the defendants, their relatives, supporters etc., from committing illegal trespass, obstruction, interference activities, illegally by any way in any manner over suit schedule property.

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(c) To declare that the alleged Gift deed dated: 17-03-2009 as allegedly executed by Ahamed Sharief late in favour of Ismail Sharief ie., defendant No.5 is not acted nor binding upon plaintiffs suit schedule property in any manner by any way.

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(d) To grant such other reliefs in favour of plaintiffs by moulding the same with court costs and under the circumstances of the case in the ends of justice."

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The defendants have filed their written statement,

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in which they have raised a challenge to the title of

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the petitioners/plaintiffs. It is contented by the

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respondents/defendants that the suit schedule property was transferred pursuant to a Relinquishment Deed executed in favour of one Ahamed Sharief, who is the husband of the plaintiff No.1 and father of the plaintiff No.2.Subsequently,a registered Will was executed by the said Ahamed Sharief dated 03.05.1996, which has been acted upon during his lifetime. It is thus contented by the respondents/defendants that except for defendant No. 5, no other party has any right, title, or interest in the suit schedule property.

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After filing of the written statement and prior to the commencement of the trial, the petitioners/plaintiffs filed an application under Order VI Rule 17 read with Section 151 of CPC seeking an amendment in the plaint. It was stated in the said application that the amendments have been necessitated in view of the written statement and that the amendments are necessary since a challenge to the title of the plaintiffs has been raised. It was further

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contended that such an amendment is necessary for the ends of justice. The application thus sought an additional prayer to declare that the Hakku Khulase Patra dated 18.12.1987, registered Will dated 03.05.1996 and partition deed dated 10.05.2012, are concocted, fabricated and not binding on the petitioners/plaintiffs.

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The learned Trial Court after examining the application gave a finding that the amendment sought is nothing but to fill up lacuna in the garb of seeking amendment and if the amendment would be allowed, it would introduce new facts and weaken the defence of the respondents/defendants.

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It is no longer res integra that ordinarily the Courts have to be liberal while granting amendments to the plaint especially if the amendment is necessary to meet the ends of justice.

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The Hon'ble Supreme Court in the case of Dinesh Goyal alias Pappu vs. Suman Agarwal (Bindal) and

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others¹ has while discussing amendments to pleadings, consolidated the law passed and has held that it is the settled law that ordinarily Court should adopt liberal approach in granting leave to amend pleadings. However, provided that the amendments would satisfy the conditions of not working injustice on the other side and being necessary for the purpose of determining the real question and issue. The relevant extract is set out below:

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"11. At this juncture, before proceeding to the merits of the case, let us consider the law relating to the amendments of pleadings.

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11.1. The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das²^. it was held as under:

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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 a real so well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the

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1 2024 SCC Online SC 2615

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2 (2008) 8 SCC 511

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proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR1957SC363] which still holds the field, it was 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 himan injury which could not be compensate din costs. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166.]”

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11 . 2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. Recently, this Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr. ,³ after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:-

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(i) 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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(ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective

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and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other

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side.

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(iii) Amendments, while generally should be allowed, the same should be disallowed if –

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(a) 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.

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(b) The amendment does not raise a timebarred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations)

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(c) The amendment completely changes thenature of the suit;

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(d) The prayer for amendment is malafide,

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(e) By the amendment, the other side should not lose a valid defence.

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(iv) Some general principles to be kept in mind are–

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(I) The court should avoid a hyper-technical approach; ordinarily be liberal, especially when the opposite party can be compensated by costs. (II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach.

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(III) The amendment should not change the cause of action, so as to setup an entirely new

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case, foreign to the case set up in the plaint.”

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[Emphasis supplied]

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A perusal of the record shows that the application I.A.No.4 was filed seeking to add two prayers. It was stated in the affidavit annexed along with the application that the reason for the filing of the application was that the defendants have filed written statement setting out that the documents have been created in order to usurp

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the share of the plaintiffs. The relevant extract of the affidavit is set out below:-

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“ I submits that the above case is posted to-day for my side evidence. The defendants have filed the written statement about the alleged forged documents hence it is necessary to amend the plaint same is not intentional and same is bonafide one.

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The proposed amendment is not created any new case and not introduce the new facts and not change the nature and character and cause of action to the petition.

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If the application is allowed no hardship or injusticeand loss caused to defendant otherwise much hardship and great injustice and irreparable loss caused to me.”

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Concededly, the trial in the matter has not yet commenced. However, it is not disputed by the

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petitioners/plaintiffs that the petitioners/plaintiffs were not

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aware of these documents prior to filing of the plaint and written statement. It is thus submitted that in order to effectively determine the rights of the plaintiffs, the amendment ought to be allowed.

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In view of the settled law, and since a challenge to the title of the petitioners/plaintiffs has been raised, it would be expedient to allow the amendment sought for.

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The Impugned Order is accordingly set aside.

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I.A.No.4 is allowed. The petitioners/plaintiffs will file an amended plaint within 3 weeks from today. The respondents shall be at liberty to file the amended written statement within three weeks thereafter.

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In view of the pendency of this matter, before this Court, both counsels submit that they will not take any unnecessary adjournments before the learned Trial Court.

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The parties are bound by the statement made by their counsel.

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