Dismissed

Dinesh Parmar and Ors. v. Smt. Usha Sharma and Anr.

Rajasthan HC5 Feb 2022CW/623/2017

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a writ petition challenging orders allowing amendment of pleadings to include a prayer for possession and impleadment of a new plaintiff. The Court held the amendment did not alter the suit's basic nature.

What did the court decide?

Writ petition dismissed; impugned orders dated 06.02.2015 and 19.09.2016 allowed; pending applications disposed of.

Dinesh Parmar and Ors. Vs Smt. Usha Sharma and Anr. — Property and Title | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Writ Petition No. 623/2017

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Dinesh Parmar S/o Mulchand, B-45, Shastri Nagar, Jodhpur.

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Lalit Parmar S/o Mulchand, R/o 45, Shastri Nagar, Jodhpur. Both Are Through Power Of Attorney Holder Ayub Khan S/o Ahmed Khan.

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Ayub Khan S/o Ahmed Khan, Plot No. 383, 3-C, Road, Sardarpura, Jodhpur.

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----Petitioners/Defendants

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Versus

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Smt. Usha Sharma W/o Late Shri Taresh Sharma, R/o Plot No. 383, 3Rd C Road, Sardarpura, Jodhpur.

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Rajkumar Vyas S/o Shri Gordhan Vyas, R/o A-345, Shastri Nagar, Tehsil And District Jodhpur.

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----Respondents/Plaintiffs

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For Petitioner(s)	: Mr. Narendra Thanvi on VC.
For Respondent(s)	: Mr. O.P. Boob on VC.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved on 02/02/2022 Pronounced on 05/02/2022

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In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, lawyers have been advised to refrain from coming to Courts.

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This writ petition has been preferred claiming the following reliefs:

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“1. This writ petition may kindly be allowed and the impugned order dated 19.09.2016 (Annexure-7) may kindly be quashed and set aside and the application

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(2 of 15)

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[CW-623/2017]

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filed under Order 6 Rule 17 of CPC may kindly be dismissed.

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2. That the order dated 06.02.2015 (Annexure-4) may kindly be quashed and set aside and the application filed under Order 22 Rule 10 of CPC may kindly be dismissed.”

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As the pleaded facts and the record of the case would reveal, the bone of contention in the present case is a shop, which is a part of Plot No.383 (admeasuring 100.61 square metres), 3^rd C Road, Sardarpura, Jodhpur, in regard whereto, original plaintiff/respondent No.1-Smt. Usha Sharma w/o Late Shri Taresh Sharma has instituted a suit under Order 7 Rule 1 of the Code of Civil Procedure (for short, ‘CPC’) before the learned court below, seeking declaration, mandatory and permanent injunction as well as recovery of mesne profits.

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3.1 The learned court below found that the possession of the shop premises in question were transferred to the present petitioners/defendants through an agreement to sale executed by Late Shri Taresh Sharma, but at the time of execution of such agreement, the said shop premises were owned by the original plaintiff/respondent No. 1, wife of Late Shri Taresh Sharma. However, the stipulations as to the payment of consideration in the agreement were not fulfilled by the petitioners/defendants, and hence, the original plaintiff/respondent No. 1, after repeated demands for payment of rent and the default in making such payment on the part of the petitioners/defendants, sought to evict the petitioners/defendants from the shop premises in question.

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(3 of 15) [CW-623/2017]

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Learned counsel for the petitioners submits that an application was filed by the respondent No.2-Rajkumar Vyas, under Order 22 Rule 10 CPC seeking to implead him as plaintiff in place of the original plaintiff-Smt. Usha Sharma, on count of the fact that he is the person in whom the interest of the shop premises in question has devolved; the said application was allowed by the learned court below, vide order dated 06.02.2015, to the extent as indicated therein, while holding that Shri Vyas, had acquired an interest in the shop premises in question through a registered sale deed.

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4.1 Learned counsel for the petitioners further submits that the learned Court below, vide order dated 19.09.2016, accepted the application filed by the original plaintiff/respondent No. 1 under Order 6 Rule 17 CPC, with the finding that an amendment to the pleadings would not cause prejudice to the present petitioners/defendants.

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Learned counsel for the petitioners/defendants however, vehemently submitted that the nature of the suit pending before the learned court below would change, from a suit filed for declaration and recovery of mesne profits, to a suit for possession of the shop premises in question, if the impugned orders passed on the aforementioned applications, are not quashed by this Court.

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In support of the submissions, learned counsel for the petitioners/defendants relied upon the following case laws:

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(i) 2009 (4) Civil Court Cases 768 (P&H) Laksmi

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& Ors. Vs. Karam Singh at Paras. 12 and 13, which reads as follows:

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(4 of 15)

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[CW-623/2017]

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“ 12. The contention of the learned counsel for the petitioners is, that by way of amendment, the plaintiff/respondent could not fill in lacuna, as the suit filed by him was dismissed by the learned trial Court. It is also contended by the learned counsel for the petitioners, that a suit for injunction could not be converted into one for possession. In support of this contention, the learned counsel for the petitioners has placed reliance on the judgment of this Court in Prem

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Chand v. Chetan Dass, 2006(2) Civil Court Cases 41 (P&H) : (2006) (1) RCR (Civil) 164 , wherein this Court was pleased to lay down as under: -

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“7. Few of the principles established by various judicial decisions in respect of amendment of pleadings are:

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a) The parties should not be allowed to substitute one cause of action or the nature of the claim for another as claimed originally or should also not be allowed to change the subject-matter or the controversy in the suit;

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b) The parties should not be allowed to introduce by amendment an inconsistent on contrary plea to negate the facts originally admitted though a party may be allowed inconsistent plea on admitted facts by way of amendment;

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c) The amendment should not cause prejudice to the other side which cannot be compensated by way of costs;

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d) The parties should not be allowed amendment of a claim of relief which is barred by law of limitation when amendment is ought to be made as it defeats a legal ...................of a party. However, this may be allowed only in very exceptional circumstances when the facts of the case so warrant.

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8. Each case relating to the amendment has be decided on its own facts by applying the judicial

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(5 of 15)

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[CW-623/2017]

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precedents which govern amendment of pleadings. The principles are fixed but the application of the same varies according to facts of each case. The power is to be exercised by the Courts for the ends of justice and to prevent the abuse of process of the Court.

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9. In the facts of the present case, it can be safely inferred that the Trial Court has clearly fallen in error in allowing the amendment of the plaint to the plaintiff – respondent. The plaintiff was well aware of the facts which are now sought to be incorporated in the plaint and further the amendment completely changes the nature of the suit from mandatory injunction to that of possession in the present case.

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The amendment causes prejudice to the rights of the defendant – petitioner and had been filed at this belated stage without any justified explanation.”

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13. There is force in contention of the learned counsel for the petitioners. The suit for injunction could not be changed into one for possession, in absence of any allegation, than it was during the pendency of the suit that the plaintiff/respondent was dispossessed”

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(ii) 2012 (4) Civil Court Cases 048 (Allahabad)

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Ramwanti Devi Vs. Shekh Irshad & Ors. at Paras. 2 to 4, wherein the Hon’ble Allahabad High Court observed:

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“ 2. The plaintiff-petitioner is utterly

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misusing the order dated 10.05.2011 passed in Civil Miscellaneous Writ Petition No. 31870 of 2006 copy of which is annexed as Annexure-6 to the writ petition. Through the said order it was directed that the suit (Original Suit No.104 of 2004) must be decided within eight months and for a period of eight months or until decision of he suit whichever was earlier status quo order shall remain operative. The petitioner is delaying the proceeding by adopting the most patent device of

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(6 of 15)

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[CW-623/2017]

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filing amendment application. The amendment application was rejected by the Trial court/ Civil Judge (Senior Division), Chandauli through order dated 12.10.2011 against which Civil Revision No. 37 of 2011 was filed which has been rejected on 17.04.2012 by District Judge, Chandauli. These orders have been challenged through this writ petition. There was absolutely no explanation as to why plea which was sought to be added through amendment could not be taken in the original plaint. The argument of learned counsel for the petitioner is that this restriction has been added in 2002 and it applies only to the amendments sought after the trial of the suit has commenced. The argument is misconceived. Even prior to the amendment of 2002 in the CPC it was essential to show that the amendment which is being sought could not be taken in the original plaint. The only difference is that firstly what was earlier implied has now been expressly provided and secondly the rigour has become more severe after 2002 amendment in the CPC. The new provision cannot be interpreted to mean that before the trial commences any amendment in the pleading may be permitted just for asking.

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3. I do not find least error in the impugned order.

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4. Writ petition is dismissed. It is further clarified that status quo order granted by this court has already exhausted on 10.02.2012.

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(iii) 2011 (3) Civil Court Cases 700 MV X -press Annaourana & Anr. etc. Vs. Gitanjali Woolens Pvt. Ltd. & Ors.

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Learned counsel for the petitioners/defendants also submits that the suit itself is barred by the prescribed period of limitation,

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(7 of 15)

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[CW-623/2017]

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which is of three years; the alleged cause of action, in this case, arose in the year 2007 itself, and the prescribed limitation period to file a suit thus came to an end in the year 2010, whereas the suit in question was instituted only in the year 2011.

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On the other hand, learned counsel for the plaintiffs/respondents submits that no doubt the suit was originally filed as a suit for declaration, but once the written statement was filed by the petitioners/defendants, a necessity arose to amend the prayer accordingly, and therefore, the principle of constructive res judicata will not apply in the present case. 9. Learned counsel for the plaintiffs/respondents, in support of his submissions, placed reliance on the following judgments:

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(i) 2012 (1) W.L.C. (S.C.) Civil 769 Ramesh Kumar Agarwal vs. Rajmala Exports Pvt. Ltd. & Ors. wherein the Hon’ble Apex Court at Paras. 11 and 12 observed the following:

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“ 11. ... Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

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12. In view of the fact that the amendment application came to be filed immediately after filing of the suit (suit came to be filed in 2007 and the amendment application was in 2008) i.e. before commencement of the trial and taking note of the fact that he learned single Judge confined the relief only to a certain extent and also that in the proposed amendment the plaintiff wants to explain how the money was paid, though necessary averments in the

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(8 of 15)

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[CW-623/2017]

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form of foundation have already been laid in the original plaint, we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice defendants.”

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(ii) 2012 (2) W.L.C. (S.C.) Civil 700 Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors. wherein the Hon’ble Apex Court observed:

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“ 6. Before considering the factual details and the materials placed by the Appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:

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17. 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: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 7. It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

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14. In Pankaja and Anr. v. Yellapa (Dead) By L.Rs. and Ors. MANU/SC/0590/2004 : AIR 2004

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(9 of 15)

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[CW-623/2017]

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SC 4102 : (2004) 6 SCC 415 , this Court held that if the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title.

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15. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties”

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(iii) (2002) 7 SCC 559 Sampath Kumar Vs. Ayyakannu

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and Anr. wherein the Hon’ble Apex Court, observed the following:

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“ 7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was open to the plaintiff to file a fresh suit and that is one of the reason which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.

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(10 of 15)

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[CW-623/2017]

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8. Mst. Rukhmabai v. Lala Laxminaraya and Ors., MANU/SC/0186/1959 : [1960]2SCR253 , this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.

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9. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pretrial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amendment.

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11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be

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(11 of 15)

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[CW-623/2017]

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added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. 13. ... The plaintiff is permitted to incorporate the plea sought to be raised by way of amendment in the original plaint foregoing the plea to the extent given up by him before the Trial Court ...”

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(iv) 2012 (5) WLC (Raj.) 132 M/s. Radiant Silk Mills (Pvt.) Ltd. & Anr. Vs. The Addl. Civil Judge (JD), No. 3, Jaipur City, Jaipur & Ors. wherein this Hon’ble Court at Jaipur Bench, at Para. 8 observed:

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“8. In the case of Sampath Kumar vs. Ayyakannu and Another reported in MANU/SC/0812/2002 : AIR 2002 SC 3369, the Hon'ble Apex Court observed that if there is no change in the nature of the suit and simply a change in the nature of relief sought for by the plaintiff and it was open for the plaintiff to file a fresh suit, the trial court should not refuse the prayer for amendment. The Hon'ble Apex Court observed that: We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present, allowing the amendment would curtail multiplicity of legal proceedings.”

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(v) 2012 WLC (Raj.) UC 514 Hanif Khan Vs. Amar

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Singh Rathore & Anr. at Para. 5, wherein this Hon’ble Court at Jaipur Bench observed:

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“ 5. Having reflected over the submissions made at the bar and carefully perused the relevant material on record, it is not revealed from the amendment allowed

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(12 of 15)

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[CW-623/2017]

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by the learned Trial Court that the same shall alter the nature of the suit. It is also not correct that the amendment sought in Paras 3 and 4 is contrary to the boundaries shown in Para-1 of the plaint. The impugned order does not cause any prejudice to the petitionerdefendant nor it results in manifesting injustice. I do not find any ground to interfere with the findings of facts in the instant petition, hence, the writ petition being devoid of any substance deserves to be dismissed.”

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Heard learned counsel for the parties as well as perused the record of the case, alongwith the precedent laws cited above. 11. This Court finds, as is recorded by the learned Court below in the impugned orders, the interest in the shop premises in question has in fact, devolved in respondent No.2-Raj Kumar Vyas, and thus, if he was not impleaded as a plaintiff in the suit pending before the learned court below, the same would have resulted in making the pleadings to suffer on count of non-joinder of the necessary party.

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This Court observes that the logic so employed by the learned court below, as stated in the impugned orders, is that the party in whom the interest of the shop premises in question has devolved, ought to be impleaded accordingly, and that the consequential amendment in the pleadings would be in the interest of justice as the person stepping into the shoes of the plaintiff becomes master of the suit subsequent to the original filing. The learned court below rightly gave the plaintiff/respondent, an opportunity to make an amendment in the prayer, while accepting the appropriate application, after the reply

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(13 of 15) [CW-623/2017]

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was filed by the present petitioners/defendants in the case pending before the learned court below, as the issues taken in the pleadings of the written statement were to be met with.

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This Court further observes that the argument so advanced

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by the learned counsel for the petitioners/defendants as to a change in the nature of the suit, does not hold good, as the learned court below is yet to look into the merits of the suit, and that the adjudication proceedings have yet to begin. This Court also observes that for the purpose of effective adjudication both the applications filed by the plaintiffs/respondents have been rightly allowed by the learned court below, vide the impugned orders.

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This Court also takes into consideration the judgments rendered by the Hon’ble Apex Court in Ramesh Kumar (supra) , Abdul Rehman (supra) and Sampath Kumar (supra) .

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14.1 In Ramesh Kumar (supra) , the Hon’ble Apex Court observed that although amendment cannot be claimed as a matter of right, but the Courts should not adopt a hyper–technical approach, and the necessary amendments may normally be allowed to avoid multiplicity of litigation.

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14.2 In Abdul Rehman (supra) , the Hon’ble Apex Court reiterated the aforementioned stand, while observing that the amendments may be allowed, if they do not alter the basic nature of the suit, and in the larger interest of justice, to avoid further litigation.

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14.3 In Sampath Kumar (supra), the Hon’ble Apex Court observed that despite the fact that an amendment was sought

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(14 of 15)

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[CW-623/2017]

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after a delay of 11 years from the date of filing of the suit, it may be allowed, if the nature of the suit is not altered.

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14.4 In the case of Radiant Silk Mills (supra) this Hon’ble Court, relying on the judgment rendered in Sampath Kumar (supra) by the Hon’ble Apex Court, allowed an amendment to be made while observing that the basic nature of the suit would not be altered, but the same would only change the nature of the relief sought by the plaintiff.

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14.5 In Hanif Khan (supra) , a this Hon’ble Court observed that the amendment so sought, would not alter the nature of the suit and the impugned orders so passed allowing the amendment did not cause any prejudice or injustice to the petitioner–defendant therein.

¶111

In the present facts and circumstances, the basic parameters of the suit are not being altered, as the rights of the parties regarding the property in question are to be determined, and the only change is that alongwith the declaration and recovery of mesne profits, the issue of possession has been added. The present factual matrix does not indicate anything wrong in adding the prayer regarding possession, as it would enable the learned trial court to comprehensively decide the issue without prejudicing either of the parties. The issues in the suit are yet to be framed, and thus, the effective contested adjudication is yet to take place and expanding the relief at the instance of the respondent is in the interest of justice, in the present circumstances.

¶112

Thus, in the aforesaid factual and precedential backdrop, this Court finds that the impugned orders dated 06.02.2015 and 19.09.2016 passed by the learned court below do not suffer from

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(15 of 15) [CW-623/2017]

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any legal infirmity, and do not cause any prejudice to the petitioners/defendants, nor the same alter the nature of the suit, but merely change the nature of the relief so sought by the plaintiff/respondent.

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In light of the aforesaid observations, no case for making any interference is made out.

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Consequently, the present petition is dismissed. All pending applications stand disposed of.

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(DR.PUSHPENDRA SINGH BHATI),J.

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8-SKant/-

Dinesh Parmar and Ors. v. Smt. Usha Sharma and Anr.

Case brief

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Dinesh Parmar and Ors. v. Smt. Usha Sharma and Anr.

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