Judgment:
ORDER
1. This revision petition under Section 115 of the CPC arises from the order dated 12th August, 1994 passed by the Prl. Munsiff, Hubli, in O.S. No. 448 of 1987 rejecting the I.A. No. 11 filed by the plaintiff under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure.
2. The plaintiff-revision petitioner had filed a suit for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit property. He has also prayed for a declaration that he is the exclusive owner of the properties in question, which was denied by the defendant. The defendant alleged that the plaintiff has not disclosed his source of title and as to how he acquired the suit properties. The plaintiff thereafter moved an application for amendment clarifying the sources of his title by the amendment application. He also sought for a decree of declaration, in addition to permanent injunction. The Trial Court held that the proposed amendment sought for by the plaintiff, if allowed, would introduce a new cause of action. The Trial Court also observed that after the lapse of more than three years the plaintiffs seeking the relief of declaration by way of amendment to the plaint is barred by limitation and accordingly rejected I.A. No. 11.
3. Feeling aggrieved by the said order, the plaintiff has come up in revision.
4. I have heard Sri Umesh R. Malimath, learned Counsel appearing for the revision petitioner and also Ms. Shantha W. Joshi, learned Counsel appearing for the respondent.
5. No doubt, the amendment application had been moved sometime in the year 1994, almost 7 years after the filing of the suit. It is well settled that all amendments that are necessary for the final determination of the issues between the parties are to be allowed subject to one condition that the amendment is not of a nature that may amount to be a new case and especially when it has become barred by limitation. The question as to what is the new case or cause of action has been considered by the Supreme Court in the case of A.K. Gupta and Sons Limited v Damodar Valley Corporation, wherein it has been laid down that in the matter of allowing amendment of pleading, the general rule is that a party is not to be allowed by amendment, to set up a new cause or a new case, particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action nor does it raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation. The expression 'cause of action' in this context does not mean every fact which is material on record to be proved to entitle the plaintiff to succeed. The expression 'only' means a new claim made on a new basis constituted by new facts. The words 'new case' means new set of ideas. No amendment will be allowed to introduce new set of ideas to the prejudice of any right acquired by any party by lapse of time. The general rule is that a party is not to be allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. It has also to be taken note that it has been laid by this Court as well as the Supreme Court that rules of procedure are made to subserve the cause of justice and not to obstruct the flow of justice to the parties on sheer technical grounds. Order 6, Rule 17 of the CPC provides that at any stage of the proceedings the Court may allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The idea behind this is of a final determination of the case according to law, the amendment may be permitted keeping these basic principles in view and consideration.
6. Here in this case the plaintiff has asserted his title to the property as owner. In the written statement the defendant has stated that the plaintiff had no right, title or interest in the property and apart from that the plaintiff has not shown his source of title to the suit property. The defendant was justified in taking the plea that the plaintiff did not disclose the source of his title and so the necessity to move application for amendment did arise to disclose his source or basis for claim of title. The plaintiff ought to have moved the application for amendment at the earliest point of time, disclosing his title with necessary facts in relation to the title claimed by him over the property in dispute in the body of the plaint. The suit was filed only for injunction. Through the amendment application, the plaintiff sought for the declaration that he is the absolute owner of the suit properties, that it is beyond doubt that plaintiff did assert his title to the land in suit, which the defendant has denied and as such the Court below had to determine the plaintiff's title andquestion of plaintiff's title and possession. So, declaration is always involved whether decree for declaration of title is sought for or not, in a suit based on title for possession and injunction and if that is so, i.e., when the title has been asserted, in original plaint, in my opinion, it cannot be said that when the amendment application has been made disclosing the source of title, it would be making out a new case. The amendment amounts to clarification of the fact which had been asserted by plaintiff in the plaint that he is the exclusive owner of the suit properties. So the amendment which has been sought for adding a para disclosing his title or source of title cannot be said to be amounting to making out a new case, but it is only an amplification of the facts already pleaded. The defendant has not admitted the title of the plaintiff. Defendant himself has asserted the plaintiff has not clearly disclosed the source of title and denied title of plaintiff. Therefore, in my opinion, the amendment sought for by the plaintiff cannot be said to be an amendment making out a new case. In this view of the matter, the amendment sought for by the plaintiff has to be allowed though it is belated. The Trial Court was not right in observing that if the amendment is allowed, it will change the character of the suit. When the plaintiff has amply disclosed the source of title, by amendment, the defendant would not be taken by surprise and such an amendment disclosing particulars and source of title, already asserted in plaint can be said to be needful and necessary for final determination of title. So, in my opinion the application for amendment seeking to bringing necessary facts on record, amplifying and disclosing the source of title cannot be said to be amounting out a new case or new cause. So far as the prayer for declaration is concerned, the declaratory relief sought for by the plaintiff is not necessary. Had the plaintiff not claimed any ownership, his original claim would have been based on possession simpliciter and then it could not have been said to be a new cause of action. But, here that is not so. The plaintiff has asserted in the plaint itself his claim of title to the property as an owner exclusively, which the defendant has denied. Therefore, it is really something flowing from the assertion of plaintiffs title made in the plaint and denied by defendant in a suit for injunction and Court will have to determine the issue relating thereto irrespective of the fact that no decree for declaration of title of plaintiff has been claimed, so if by amendment application decree for declaration of title is also sought to be claimed, it is wrong to say the plaintiffs amendment application has the effect of making out a new cause of action or new case.
7. Thus considered in my opinion, the Trial Court erred in law in rejecting the application for amendment on misconception of law and thus failed to exercise the jurisdiction vested under Order 6, Rule 17 of the CPC. The amendment as sought for, in my opinion, is necessary for the proper determination of the issue of title. In this view of the matter, in my considered view, the revision petition has to be allowed and consequently the application for amendment also should be allowed. While allowing the amendment application, interest of justice would requirethat the plaintiff should be saddled with costs for belated moving the amendment application.
8. In the result, this petition is allowed and the order passed by the Trial Court on LA. No. 11 in O.S. No. 448 of 1987, dated 12-8-1994, is set aside and the amendment application of the plaintiff is allowed, subject to the condition that the plaintiff shall pay a sum of Rs. 550/- (Rupees Five Hundred Fifty only) to the defendant. So far as the cost in this petition is concerned, the parties shall bear their own costs.
9. The Trial Court is directed to give sufficient opportunity to the defendant for filing additional written statement as well as for filing documentary or other evidence to both the parties.