Judgment:
Kanwaljit Singh Ahluwalia, J.
1. Kailash son of Kishan, his mother Smt. Savitri has preferred the present revision petition. They are aggrieved against the order dated 7.9.2004 passed by Addl. Civil Judge (Sr. Division), Ferozepur Jhirka, whereby their application for amendment of the plaint was rejected. Petitioners herein had instituted a suit on 31.1.1996 for permanent injunction. Ad-interim injunction restraining the defendants from interfering in their peaceful possession over the suit land was granted and affirmed on 17.5.1996. On account of non appearance of the petitioner-plaintiffs and their counsel, the suit was dismissed in default on 7.12.1996. An application for restoration of the suit was filed by the petitioner-plaintiffs on 20.5.1996 and the case was restored at its original number on 14.8.1997.
2. The case of the petitioner-plaintiffs is that after dismissal of the suit in default, defendant Nos. 1, 2 and 3 encroached upon the suit property and raised some construction by building walls and rooms on the suit property. The petitioner-plaintiffs projected that since construction had been raised by the defendants after institution of the suit, they are entitled to the relief of mandatory injunction and grant of prayer for demolition of walls and rooms built by defendant Nos. 1 to 3, therefore, a prayer had been made that they be allowed to amend the plaint by adding para 3-A and amend para 8 of the plaint as per the details given in para 4 of the application for amendment. Respondent-defendants filed reply to the application. In the application so filed, preliminary objection regarding maintainability, mala fide, estoppel and misuse of process of law were pleaded. On merits, it was denied that they had encroached upon any part of the suit land. It was asserted that respondent-defendants are owners in possession of their own land and the petitioner-plaintiffs are not entitled to alleged relief of mandatory injunction, therefore, their application for amendment of the plaint is liable to be rejected. It was urged that by proposed amendment, petitioner-plaintiffs intend to change very nature of the suit.
3. The Court below formulated an opinion that amendment of the plaint is not warranted, as the applicant-plaintiffs had given no date on which alleged encroachment over the property was made. The Court below was of the view that the suit was dismissed in default on 7.12.1996, restored on 14.8.1997, thus, technically no suit was pending even though application for restoration of the suit was pending. It was held by the Court below that the application for restoration was filed on 20.12.1996, whereas suit was dismissed in default on 7.12.1996. The possibility that the construction was raised in between cannot be ruled out. On this premise, the amendment of the plaint was dis-al-lowed.
4. Mr. Naresh Prabhakar, learned Counsel appearing for the petitioner-plaintiffs has relied upon Ragu Thilak D. John v. S. Rayappan and Ors. : A.I.R. 2001 S.C. 699 and has canvassed that for allowing amendment, the Court should adopt liberal approach in order to minimize the litigation. Paragraphs 5 and 6 in Ragu Thilak D. John's case (supra) relied upon by the learned Counsel read as under:
5. After referring to the judgments in Charan Das v. Amir Khan A.I.R. 1921 P.C. 50, L.J. Leach & Co. Ltd. v. Jardine Skinner & Company : 1957 S.C.R. 438 : A.I.R. 1957 S.C. 357, Smt. Ganga Bai v. Vijay Kumar : (1974)2 S.C.C. 393 : A.I.R. 1974 S.C. 1126, Ganesh Trading Co. v. Moji Ram : (1978)2 S.C.C. 91 : A.I.R. 1978 S.C. 84 and various other authorities, this Court in B.K.N. Pillai v. P. Pillai : (1999)10 J.T. (S.C.) 61 : 2000 A.I.R. S.C.W. 43 : A.I.R. 2000 S.C. 614 Held:
The purpose and object of Order 6, Rule 17, C.P.C. is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guide-lines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for.
Counsel for the petitioners has further relied upon Sampath Kumar v. Ayyakannu and Anr. : (2002)7 S.C.C. 559 : 2002(2) P.L.J. 445 (S.C.) wherein their Lordships of the Hon'ble Apex Court had observed as under:
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 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. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
12. On the averments made in the application, the same ought to have been allowed. If the facts alleged by the plaintiff are not correct it is open for the defendant to take such plea in the written statement and if the plaintiff fails in substantiating the factual averments and/or the defendant succeeds in substantiating the plea which he would obviously be permitted to raise in his pleading by way of consequential amendment then the suit shall be liable to be dismissed. The defendant is not prejudiced, moreso when the amendment was sought for before the commencement of the trial.
5. Mr. Amit Kumar Jain, learned Counsel appearing for respondent Nos. 1, 2 and 4 has urged that issues in the present case were framed on 17.5.1996 after completion of pleadings and the case was fixed for plaintiffs' evidence on 7.12.1996. On 7.12.1996 instead of leading any evidence, plaintiffs remained absent from the Court and their case was dismissed in default. Application for restoration of the case was filed on 20.12.1996 and thereafter the case was restored on 14.8.1997. It was urged that application for amendment of the plaint was filed after a period of seven months.
6. Counsel for the respondent-defendants has further submitted that on 14.1.1997 suit land was demarcated by the revenue officials on the application moved by Kailash petitioner-plaintiff and it was found on that day that pucca construction of the suit land was already existing and no fresh construction had been raised. According to counsel for the respondent-defendants, petitioner-plaintiffs have not come to this Court with clean hands. It was further submitted that after framing of issues, the trial commenced and, therefore, amendment cannot be allowed.
7. The impugned order was passed on 7.9.2004. On 19.11.2004, this Court had stayed further proceedings before the trial Court. After hearing counsel for the parties, this Court is of the view that prayer for amendment must satisfy two conditions (i) that it is not causing injustice to the other side; and (ii) the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties. On both the counts, petitioners are entitled to succeed and their prayer for amendment of the plaint ought to be allowed. It will not only avoid multiplicity of litigation but can also take notice of subsequent events. However, the plea raised by counsel for the respondent-defendants that there is delay on the part of the petitioner-plaintiffs to approach the Court, I am of the view that for this lapse, the respondent-defendants can be compensated by awarding costs. Thus, the present revision petition is allowed. The petitioners are permitted to amend the plaint. However, for the delay in approaching the trial Court, the respondent-defendants are required to be compensated by fastening the petitioners with costs of Rs. 5,000/-. On deposit of costs, the application for amendment of the plaint shall be allowed by the trial Court.