Kamta Prasad Vs. Sugriv Prasad and ors. - Court Judgment

Excerpt:
civil - amendment in plaint - order vi rule 17 and order xxxix rule 1&2 of code of civil procedure, 1908(cpc) - plaintiff claimed to be sharer of suit property - filed suit for declaration and permanent injunction - during pendency of suit plaintiff filed application under order xxxix rule 1&2 of cpc for temporary injunction - application under order xxxix rule 1&2 went upto high court in revision - said application finally disposed of with observation that defendant no.1 would remain in possession without right of alienation - after decision of above application plaintiff fled application under order vi rule 17 for amendment of plaint seeking relief of possession - trial court dismissed application - hence, present petition by plaintiff - held, leave to amend pleading under order vi rule 17 of cpc can be granted if by amendment basic structure of suit does not change - in present case originally plaintiff prayed for declaration and permanent injunction - by amendment he sought relief of possession - thus change was sought only in nature of relief - basic structure of suit would not change - further trial court while rejecting application for amendment held that plaintiff could file fresh suit for possession - therefore by granting leave of amendment multiplicity of legal proceeding can be curtailed - hence, plaintiff entitled for amendment of plaint as per order vi rule 17 of cpc - petition allowed - - it is also well settled that the high court while acting under this article can not exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the fact of the record. 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 can not be permitted to be incorporated in the pending suit. 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.orderk.k. lahoti, j.1. this petition is directed against the order dated 13-3-2003 of the civil judge class-2, nagod, distt. satna, in civil suit no. 25-a/95 by which the court has rejected the application of the plaintiff/petitioner under order 6 rule 17 of the code of civil procedure, 1908.2. the petitioner is claiming half share in khasra nos. 139,140 and 147 total area 54 beegha and 18 vishwa of village hardokhar. bhagwat prasad was the bhumiswami of these lands. out of total land, 33 beegha and 6 vishwa of land, was got recorded in the name of his nephew sugriv prasad in the year 1956. he executed a will in respect of the remaining lands held by him in favour of plaintiff kampta prasad, who is nephew of sugriv prasad. sugriv prasad is claiming his exclusive possession over all the lands. the suit was filed for declaration and permanent injunction.3. during the pendency of the suit, petitioner prayed for temporary injunction. the matter travelled to the high court in civil revision no. 2076 of 1998 and by the order dated 29-1-2002, revision was finally decided and it was held that defendant no. 1 sugriv prasad will continue in possession of the lands bearing khasra nos. 139, 140 and 147 but he will not transfer or alienate these lands to anyone till the decision of the suit. in deciding the application under order 39 rules 1 and 2, cpc, the petitioner's possession was not found by the court. after the decision of the application under order 39 rules 1 and 2, cpc, the petitioner moved an application under order 6 rule 17, cpc for amendment in the plaint seeking relief of possession over the land. it is alleged that the plaintiff was dispossessed on 29-1-2002 from the suit lands. this application was contested seriously by the defendants. the trial court by impugned order dated 13-3-2003 rejected the application on the ground that the amendment will change the nature of the suit and the relief of possession can not be granted as this will jeopardise the rights of the defendants. aggrieved by which, this petition has been filed.4. the learned counsel appearing for petitioner submits that the suit is at a preliminary stage. after the decision by the high court in the civil revision on 29-1-2002, plaintiff was dispossessed, because the interim order issued by the court ceased to be effective. the defendants taking advantage of the situation have dispossessed the plaintiff. because of the change in the circumstances, the amendment has become necessary for the just decision of the case. apart from this, the suit is at preliminary stage and the plaintiff ought to have been permitted to amend the plaint as prayed in the application for complete adjudication of the dispute between the parties. he has placed his reliance to the apex court's judgments in estralla rubber v. dass estate (p) ltd., (2001) 8 scc 97 and sampath kumar v. ayyakannu and anr., (2002) 7 scc 559 and contended that the amendment may be allowed.5. the learned counsel appearing for respondent nos. 1 and 2 submits that the order by the court below rejecting the application on the ground of delay is proper. the suit was filed long back in the year 1995 and the amendment was sought in the year 2002, which was highly belated. the suit was only for declaration, partition and injunction has now been tried to be converted into a suit for possession. relief of possession has become time-barred, which can not be allowed by the amendment. the trial court considering all the facts has rightly rejected the prayer in which there is no jurisdictional error warranting interference from this court.6. from the perusal of the amendment application, it appears that the amendment was based on subsequent events. the contents of the application are that after vacation of temporary injunction in respect of the possession over the suit land, he has been dispossessed on 29-1-2002. as the circumstances have changed during the pendency of the suit because of the vacation of temporary injunction the amendment is necessary. the deed dated 3-7-1984 is also challenged as null and void to the rights of plaintiff. the sale deed dated 3rd sept., 1965 is also challenged as void to the rights of petitioner. as the plaintiff has been dispossessed during the pendency of the suit, the prayer for possession has been prayed along with mesne profits. though the aforesaid application has been contested by the respondents by filing reply and the plea of limitation has also been taken by the respondents, but it appears that the aforesaid amendment has been sought because of the changed circumstances during the pendency of the suit. the suit is at a preliminary stage and the trial has not commenced. the apex court in estralla rubber (supra), considering the scope of amendment of pleading held that where the proposed amendment is elaborating the plea/additional pleadings in support of the case the aforesaid amendment can not be denied merely on the ground of delay. if the amendment has been rejected by the trial court, the order passed by the court below may be interfered under article 227 of the constitution of india. the apex court held that :--'5. we have considered the submissions made on behalf of either side. the high court set aside the order passed by the learned district judge stating that the proposed amendment will have the effect of displacing the plaintiff from admission made by the defendant in its petition filed under sections 17(2) and 12(2-a) of the act and that such admission could not be permitted to be withdrawn. we have perused the relevant records including the original application and the proposed amendment. we are not able to see any admission made by the defendant as such, which was sought to be withdrawn. by the proposed amendment the defendant wanted to say that ala mohan dass was a permissive occupier instead of owner. the further amendment sought was based on the entries made in the revenue records. it is not shown how the proposed amendment prejudiced the case of the plaintiff. it is also not the case of the plaintiff that any accrued right to it was tried to be taken away by the proposed amendment. the proposed amendment is to elaborate the defence and to take additional plea in support of its case. assuming that there was some admission indirectly, it is open to the defendant to explain the same. looking to the proposed amendment, it is clear that it is required tor proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings. the high court also found fault with the defendant on the ground that there was delay of three years in seeking amendment to introduce new defence. from the records, it can not be said that any new defence was sought to be introduced. even otherwise, it was open for the defendant to take alternative or additional defence. merely because there was delay in making the amendment application, when no serious prejudice is shown to have been caused to plaintiff so as to take away any accrued right, the application could not be rejected. at any rate, it can not be said that allowing the amendment cause irretrievable prejudice to the plaintiff. further, the plaintiff can file his reply to the amended written statement and fight the case on merits. the impugned order passed by the high court exercising jurisdiction under article 227 of the constitution to set aside the order passed by the learned district judge in revision under section 115a, cpc allowing the amendment application filed by the defendant, is patently erroneous and unsustainable. in the impugned order the high court observed that the order of the learned district judge was apparently wrong but in our view it is otherwise. 6. the scope and ambit of exercise of power and jurisdiction by a high court under article 227 of the constitution of india is examined and explained in a number of decisions of this court. the exercise of power under this article involves a duty on the high court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. the high court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. exercise of this power and interfering with the orders of the court or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the high court does not interfere, a grave injustice remains uncorrect. it is also well settled that the high court while acting under this article can not exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the fact of the record. the high court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.'7. in sampath kumar (supra), the apex court considered the prayer for pre-trial amendment and change of the nature in the pleadings, while basic structure of the suit remained unchanged. the apex court also considered the effect of delay in amending the pleadings, held :--'6. it is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. according to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.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 reasons which has prevailed with the trial court and with the 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 can not 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.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 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.' 8. in estralla rubber and sampath kumar (supra), the apex court has considered the law at length and the amendment which has been sought because of the change of the circumstances during the pendency of the suit may be allowed. merely on the ground of delay, the application can not be rejected. from the perusal of the amendment application, it is apparent that the basic structure of the suit is not changed. the prayer has been sought because of the events happened during the pendency of the suit. this amendment will avoid multiplicity of the suit and it was necessary for the just decision of the case. the suit is between the family members and the basis of the claim remained unchanged. the plaintiff is claiming relief on the basis of the same pleadings which he has already brought on record at the time of filing of the suit. now the relief of possession has been sought by the plaintiff by filing this amendment application. it can not be dismissed merely on the ground of delay. the respondents will get right for consequential amendment and the plea of limitation will always remain opened to the respondents, for complete adjudication of the dispute between the parties, it is necessary that the plaintiff is permitted to amend the pleadings. it is settled law that even at the stage of judgment if the court finds, that the suit of plaintiff can not be decreed without seeking relief of possession, even at that stage, the court may permit the plaintiff to amend the pleadings seeking proper relief. in the ends of justice, court may permit the parties to amend the pleadings seeking aforesaid relief at the fag end of the trial. then in the present case, when the suit is at the stage of pretrial, the amendment can not be refused merely on the ground of delay seeking relief of possession on the basis of the pleadings which were already on record, the nature of the suit is not changed. in the circumstances, the trial court erred in rejecting the application filed by the petitioner seeking amendment in the plaint. consequently, this petition is allowed. impugned order dated 13-3-2003 by which the application of the plaintiff under order 6 rule 17, cpc was rejected is hereby quashed. the plaintiff is permitted to amend the pleadings as prayed in the application dated 23-7-2002. necessary amendment be carried out within a period of 15 days from the date of communication of this order to the trial court. the respondents will be entitled for amending the pleadings consequently, and will be free to take all the pleas available to them in accordance with law. no order as to costs.

Judgment:
ORDER

K.K. Lahoti, J.

1. This petition is directed against the order dated 13-3-2003 of the Civil Judge Class-2, Nagod, Distt. Satna, in Civil Suit No. 25-A/95 by which the Court has rejected the application of the plaintiff/petitioner under Order 6 Rule 17 of the Code of Civil Procedure, 1908.

2. The petitioner is claiming half share in Khasra Nos. 139,140 and 147 total area 54 Beegha and 18 Vishwa of Village Hardokhar. Bhagwat Prasad was the Bhumiswami of these lands. Out of total land, 33 beegha and 6 vishwa of land, was got recorded in the name of his nephew Sugriv Prasad in the year 1956. He executed a Will in respect of the remaining lands held by him in favour of plaintiff Kampta Prasad, who is nephew of Sugriv Prasad. Sugriv Prasad is claiming his exclusive possession over all the lands. The suit was filed for declaration and permanent injunction.

3. During the pendency of the suit, petitioner prayed for temporary injunction. The matter travelled to the High Court in Civil Revision No. 2076 of 1998 and by the order dated 29-1-2002, revision was finally decided and it was held that defendant No. 1 Sugriv Prasad will continue in possession of the lands bearing Khasra Nos. 139, 140 and 147 but he will not transfer or alienate these lands to anyone till the decision of the suit. In deciding the application under Order 39 Rules 1 and 2, CPC, the petitioner's possession was not found by the Court. After the decision of the application under Order 39 Rules 1 and 2, CPC, the petitioner moved an application under Order 6 Rule 17, CPC for amendment in the plaint seeking relief of possession over the land. It is alleged that the plaintiff was dispossessed on 29-1-2002 from the suit lands. This application was contested seriously by the defendants. The Trial Court by impugned order dated 13-3-2003 rejected the application on the ground that the amendment will change the nature of the suit and the relief of possession can not be granted as this will jeopardise the rights of the defendants. Aggrieved by which, this petition has been filed.

4. The learned Counsel appearing for petitioner submits that the suit is at a preliminary stage. After the decision by the High Court in the Civil Revision on 29-1-2002, plaintiff was dispossessed, because the interim order issued by the Court ceased to be effective. The defendants taking advantage of the situation have dispossessed the plaintiff. Because of the change in the circumstances, the amendment has become necessary for the just decision of the case. Apart from this, the suit is at preliminary stage and the plaintiff ought to have been permitted to amend the plaint as prayed in the application for complete adjudication of the dispute between the parties. He has placed his reliance to the Apex Court's judgments in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 and Sampath Kumar v. Ayyakannu and Anr., (2002) 7 SCC 559 and contended that the amendment may be allowed.

5. The learned Counsel appearing for respondent Nos. 1 and 2 submits that the order by the Court below rejecting the application on the ground of delay is proper. The suit was filed long back in the year 1995 and the amendment was sought in the year 2002, which was highly belated. The suit was only for declaration, partition and injunction has now been tried to be converted into a suit for possession. Relief of possession has become time-barred, which can not be allowed by the amendment. The Trial Court considering all the facts has rightly rejected the prayer in which there is no jurisdictional error warranting interference from this Court.

6. From the perusal of the amendment application, it appears that the amendment was based on subsequent events. The contents of the application are that after vacation of temporary injunction in respect of the possession over the suit land, he has been dispossessed on 29-1-2002. As the circumstances have changed during the pendency of the suit because of the vacation of temporary injunction the amendment is necessary. The deed dated 3-7-1984 is also challenged as null and void to the rights of plaintiff. The sale deed dated 3rd Sept., 1965 is also challenged as void to the rights of petitioner. As the plaintiff has been dispossessed during the pendency of the suit, the prayer for possession has been prayed along with mesne profits. Though the aforesaid application has been contested by the respondents by filing reply and the plea of limitation has also been taken by the respondents, but it appears that the aforesaid amendment has been sought because of the changed circumstances during the pendency of the suit. The suit is at a preliminary stage and the trial has not commenced. The Apex Court in Estralla Rubber (supra), considering the scope of amendment of pleading held that where the proposed amendment is elaborating the plea/additional pleadings in support of the case the aforesaid amendment can not be denied merely on the ground of delay. If the amendment has been rejected by the Trial Court, the order passed by the Court below may be interfered under Article 227 of the Constitution of India. The Apex Court held that :--

'5. We have considered the submissions made on behalf of either side. The High Court set aside the order passed by the learned District Judge stating that the proposed amendment will have the effect of displacing the plaintiff from admission made by the defendant in its petition filed under Sections 17(2) and 12(2-A) of the Act and that such admission could not be permitted to be withdrawn. We have perused the relevant records including the original application and the proposed amendment. We are not able to see any admission made by the defendant as such, which was sought to be withdrawn. By the proposed amendment the defendant wanted to say that Ala Mohan Dass was a permissive occupier instead of owner. The further amendment sought was based on the entries made in the revenue records. It is not shown how the proposed amendment prejudiced the case of the plaintiff. It is also not the case of the plaintiff that any accrued right to it was tried to be taken away by the proposed amendment. The proposed amendment is to elaborate the defence and to take additional plea in support of its case. Assuming that there was some admission indirectly, it is open to the defendant to explain the same. Looking to the proposed amendment, it is clear that it is required tor proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings. The High Court also found fault with the defendant on the ground that there was delay of three years in seeking amendment to introduce new defence. From the records, it can not be said that any new defence was sought to be introduced. Even otherwise, it was open for the defendant to take alternative or additional defence. Merely because there was delay in making the amendment application, when no serious prejudice is shown to have been caused to plaintiff so as to take away any accrued right, the application could not be rejected. At any rate, it can not be said that allowing the amendment cause irretrievable prejudice to the plaintiff. Further, the plaintiff can file his reply to the amended written statement and fight the case on merits. The impugned order passed by the High Court exercising jurisdiction under Article 227 of the Constitution to set aside the order passed by the learned District Judge in revision under Section 115A, CPC allowing the amendment application filed by the defendant, is patently erroneous and unsustainable. In the impugned order the High Court observed that the order of the learned District Judge was apparently wrong but in our view it is otherwise.

6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and Tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or Tribunals. Exercise of this power and interfering with the orders of the Court or Tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrect. It is also well settled that the High Court while acting under this article can not exercise its power as an Appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the fact of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or Tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or Tribunal has come to.'

7. In Sampath Kumar (supra), the Apex Court considered the prayer for pre-trial amendment and change of the nature in the pleadings, while basic structure of the suit remained unchanged. The Apex Court also considered the effect of delay in amending the pleadings, held :--

'6. It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.

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 reasons which has prevailed with the Trial Court and with the 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 can not 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.

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 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.'

8. In Estralla Rubber and Sampath Kumar (supra), the Apex Court has considered the law at length and the amendment which has been sought because of the change of the circumstances during the pendency of the suit may be allowed. Merely on the ground of delay, the application can not be rejected. From the perusal of the amendment application, it is apparent that the basic structure of the suit is not changed. The prayer has been sought because of the events happened during the pendency of the suit. This amendment will avoid multiplicity of the suit and it was necessary for the just decision of the case. The suit is between the family members and the basis of the claim remained unchanged. The plaintiff is claiming relief on the basis of the same pleadings which he has already brought on record at the time of filing of the suit. Now the relief of possession has been sought by the plaintiff by filing this amendment application. It can not be dismissed merely on the ground of delay. The respondents will get right for consequential amendment and the plea of limitation will always remain opened to the respondents, For complete adjudication of the dispute between the parties, it is necessary that the plaintiff is permitted to amend the pleadings. It is settled law that even at the stage of judgment if the Court finds, that the suit of plaintiff can not be decreed without seeking relief of possession, even at that stage, the Court may permit the plaintiff to amend the pleadings seeking proper relief. In the ends of justice, Court may permit the parties to amend the pleadings seeking aforesaid relief at the fag end of the trial. Then in the present case, when the suit is at the stage of pretrial, the amendment can not be refused merely on the ground of delay seeking relief of possession on the basis of the pleadings which were already on record, the nature of the suit is not changed. In the circumstances, the Trial Court erred in rejecting the application filed by the petitioner seeking amendment in the plaint. Consequently, this petition is allowed. Impugned order dated 13-3-2003 by which the application of the plaintiff under Order 6 Rule 17, CPC was rejected is hereby quashed. The plaintiff is permitted to amend the pleadings as prayed in the application dated 23-7-2002. Necessary amendment be carried out within a period of 15 days from the date of communication of this order to the Trial Court. The respondents will be entitled for amending the pleadings consequently, and will be free to take all the pleas available to them in accordance with law. No order as to costs.