Natwar Lal and ors Vs. Prahlad Singh and ors - Court Judgment

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : ORDER

: S.B. CIVIL WRIT PETITION NO.3324/2005 Natwar Lal & Ors. Vs. Shri Prahlad Singh & Ors. Date of Order ::

18. 11.2014 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Arpit Bhoot, for the petitioner/s. Mr. S.P. Sharma, for the respondent/s. ---- BY THE COURT: This writ petition is directed against the order dated 8.10.2004 passed by the trial court whereby the application filed by the petitioners-plaintiffs seeking amendment in the plaint has been rejected. The facts in brief may be noticed thus : the petitioners filed a suit for possession, damages and permanent injunction against Prahlad Singh and Dalpat Singh regarding property known as 'Shahji Ka Bagicha' situated at Ward No.8, Kuchaman City. It was inter-alia claimed that the Western portion of the property was on rent with Nobal Senior Secondary School, about 1/2 Eastern portion is on rent with Commercial Taxes Department and Sheep & Wool Department and 1/2 Southern portion was vacant which was in possession of Gokul Chand. It was claimed that Venu Gopal, power of attorney holder of Gokul Chand 2 executed sale deeds in favour of the plaintiffs pertaining to the Eastern portion of the property and the possession was handed- over to the plaintiffs. The Commercial Taxes Department and Sheep & Wool Department were informed about the transfer and they attorned to the plaintiffs and started paying rent to the plaintiffs. It was alleged that the respondent No.2 got a agreement to sale executed with the connivance of defendant No.1 on 31.8.1989; trespassed on a part of the property and the said fact came to the notice of the plaintiffs when defendant Prahalad Singh filed a suit before the District Court, Merta based on the said fraudulent agreement to sale and got ex-parte incorrect site inspection report from the Court Commissioner. The right of the defendants to execute the agreement to sale and any right under the said agreement to sale was questioned. It was alleged that subsequent to the initial trespass further trespass has been committed by the defendant, ultimately, it was prayed that the possession of the suit property as indicated in Annexure-Ka alongwith damages be awarded. The suit was filed on 14.3.2001. A written statement thereto was filed by the defendant on 7.10.2013 and issues were framed by the trial court. Whereafter, on 3.8.2004, the application under Order VI, Rule 17 CPC came to be filed by the petitioners inter-alia claiming incorporation of subsequent events, the crux of the cause as indicated in the application reads as under:- “इस द व क पश करन क ब द पत व द पहल दससह व पत व द दलप ससह न न ज यज र क स बबन ककस अध क र क ज र जबरदस स इस व द म! ववव दद 3 भ%सम म! स क&छ दहसस पर और कबज कर सलय ह* । यह कबज पत व द गण न द.र न द व ककय ह* थ पत व द गण न न ज यज कबज करन क ब द भड ऊन ववभ ग व ल बबल34ग क म हनससह पत & समदरससह क ककर य पर द ददय ह*, इससलए इस द व म! म हनससह क भ पकक र बन य ज न जरर ह*, इससलए द व म! सश न करव य ज न ल जम ह गय ह* ।" The application was opposed by the defendants. After hearing the parties, the trial court came to the conclusion that the fresh cause of action has arisen to the plaintiffs on 19.5.2001, which is different from the earlier cause of action and if the amendment is permitted, the same would change the cause and consequently, dismissed the application filed by the plaintiffs. It is submitted by learned counsel for the petitioners that the trial court fell in grave error in dismissing the application filed by the petitioner. It was inter-alia claimed that the subject matter of the suit is the same, inasmuch as, the plaintiffs had filed the suit alleging trespass by the defendants on a part of the suit property and during the pendency of the suit, he had trespassed on some other part of the same property which necessitated the amendment of the plaint. The cause of action, so far as the plaintiff is concerned, is the acquisition by way of transfer of the suit property and wrongful trespass by the defendants and if the plaintiffs could file a fresh suit for the same cause, instead of multiplicity of the suit the amendment could reasonably be incorporated in the plaint and therefore, the trial court committed error in dismissing the application. Reliance was placed on Rajesh Kumar Aggarwal & Ors. v. 4 K.K. Modi & Ors. : (2006) 4 SCC385 wherein considering the provisions of Order VI, Rule 17 CPC, the following observations were made :-

“14. Order 6 Rule 17 CPC reads thus:

“17. Amendment of pleadings. - The court may at any stage of the proceedings allow their 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.”

. This rule declares that the court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should 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 for which amendment is sought before the commencement of the trial.

15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

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.

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the 5 parties. It it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court.

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.”

. Opposing the submissions made by learned counsel for the petitioners, learned counsel for the respondents submitted that the plaintiff has failed to make out any case for amendment of the plaint, inasmuch as, a totally different cause of action has been sought to be incorporated by the plaintiff by way of amendment and besides the existing defendants one more defendant Mohan Singh was sought to be added in the plaint, which clearly indicated a different cause of action and therefore, the trial court was justified in dismissing the application under Order VI, Rule 17 CPC. Reliance was placed on Rajendra Prasad v. Civil Judge (S.D.), Ratangarh & Anr. :

2008.

2) DNJ (Raj.) 1111; Bollepanda P. Poonacha & Anr. v. K.M. Madapa :

2008. DNJ (SC) 241; and Vidyabai & Ors. v. Padmalatha & Anr. : AIR2009SC1433 I have considered the submissions made by learned counsel for the parties. 6 A bare look at the plaint (Annex.2) filed by the plaintiff reveals that the suit was filed seeking possession and damages from two defendants Prahlad Singh and Dalpat Singh regarding a portion of the property said to be have been trespassed by defendant No.2 Dalpat Singh. Whereafter, the present application Annex.1 was filed seeking amendment in the plaint on basis as quoted above wherein it was claimed that after filing of the suit, the defendants have without any right have taken possession of some more portion and has let out the said portion to Mohan Singh and therefore, besides impleading Mohan Singh as party, the amendment in the suit was necessary. Besides the above, in the proposed amendment it was claimed that the Sheep & Wool Department, who were tenant in the portion, has shifted its office and handed-over possession to the plaintiffs wherein they have put locks, however, the defendant No.2 alongwith this accomplices has trespassed on the portion vacated by the Sheep & Wool Department and have whereafter has let it out to Mohan Singh. The valuation of the suit, the amount of damages / mesne profit were also sought to be amended. A bare reading of the plaint as well as the application seeking amendment clearly reveals that while the suit was filed by the plaintiffs on 14.3.2001 seeking possession of a part of the property said to have been trespassed by the defendants, the amendment was sought regarding alleged subsequent action on part of the defendant No.2 in extending his trespass by way of getting into the property said to have been vacated by Sheep & Wool Department and possession whereof was handed-over to the plaintiffs and whereafter inducting one Mohan Singh as a 7 tenant in the said portion. Merely because the subject matter of the amendment forms part of the property, a portion whereof was subject matter in the suit and the same has been allegedly trespassed by the same person i.e. defendant No.2 during the pendency of the suit, in the opinion of this Court cannot be made subject matter of a pending suit so as to enlarge the scope of enquiry of the pending suit which pertain to a totally independent event / transaction / activity by or between incidentally the same parties. The judgment cited by learned counsel for the petitioners in the case of Rajesh Kumar Agarwal (supra) has apparently no application to the facts of the present case, inasmuch as , while there cannot be any dispute regarding principles relating to amendment of pleadings laid down in the said judgment, the very fact that as noticed above, the event / transaction / activity being wholly independent of the pending suit, it cannot be said that the amendment sought is necessary for determining the real question in controversy. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. (ARUN BHANSALI), J.

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