Gujarat High Court
Ramanlal Ambalal Patel vs Hina Industries on 16 February, 1993
Equivalent citations: (1993)1GLR820
JUDGMENT K.G. Shah, J.
1. The opponent filed Civil Suit No. 3247 of 1991 against the revision petitioner before the trial Court for a decree directing the revision petitioner to perform specifically his part of the oral agreement said to have been entered into between the parties on May 10, 1988, for transferring the business of the petitioner as a going concern, together with the goodwill and the tenancy rights of the petitioner, in respect of the suit property being Shed No. 1, and putting the opponent in actual and peaceful possession of the suit property, on the opponent tendering and depositing the balance consideration, and the amount of rent as may be payable by the opponent. According to the opponent-plaintiff as averred by it in its plaint, the petitioner-defendant had, on May 10, 1988, entered into an oral agreement with the opponent to transfer the business of the petitioner as a going concern together with the goodwill and the tenancy rights of the petitioner in respect of the suit property. It was for the specific performance of that agreement that the opponent filed the suit wherein inter alia, the opponent prayed for a decree for possession of the suit property. In the plaint, the opponent, inter alia, averred that the petitioner had, on May 19, 1991, illegally dispossessed the opponent of the suit premises. The suit as aforesaid came to be filed on June 18, 1991.
2. In response to the summons, the petitioner filed the written statement traversing the averments made by the opponent. It appears that alongwith the suit, the opponent had taken out a Notice of Motion for certain interim injunctions. That Notice of Motion was finally decided by the trial Court on April 6, 1992, and the same was dismissed. Some nine days thereafter, on April 15, 1992, the opponent filed the Chamber Summons Exh. 80/ 81, with a prayer for permission to carry out certain amendments in the plaint. The opponent, by the proposed amendment, wanted to add in the plaint, a relief for possession of the suit property, based on Section 6 of the Specific Relief Act, 1963 (for short "the Act"). In the proposed amendment, the opponent inter alia purported to say that as the suit has been filed within six months of the dispossession, the opponent was entitled to recover the possession of the suit property by virtue of Section 6 of the Act, de hors the agreement sought to be specifically enforced.
3. The petitioner resisted the Chamber Summons. The learned trial Judge ultimately granted the Chamber Summons, and has permitted the opponent to carry out the amendment as proposed by the opponent. Hence the petitioner-defendant has come to this Court by way of this revision petition.
4. Mr. U. R. Bhatt the learned Advocate for the petitioner, submitted that the trial Court had no jurisdiction to grant the amendment of the present nature for the suit as originally filed is one under Section 5 of the Act read with the relevant provisions of the Code of Civil Procedure, while, by the proposed amendment, the plaintiff wants to seek the relief for possession of the suit property, under Section 6 of the Act. According to Mr. Bhatt, the two remedies are mutually exclusive and inconsistent, and the Court had, therefore, no jurisdiction to grant the amendment. Mr. Bhatt nextly submitted that on the date the amendment application was moved, the relief for possession based on Section 6 of the Act was grossly time barred. Therefore also, the trial Court had no jurisdiction to grant the amendment.
Mr. J. T. Trivedi, the learned Advocate for the opponent, on the other hand, while trying to support the order of the trial Court on merits, contended that in a revision petition under Section 115 of the Code of Civil Procedure, this Court should not interfere with the impugned order.
5. Having heard the learned Advocates, I think the revision petition should succeed. True, the jurisdiction under Section 115 C. P. Code is a restricted limited and narrow jurisdiction. Nonetheless, the jurisdiction and power envisaged by that Section is real in nature and is inter alia aimed at prevention of failure of justice. If a subordinate Court is shown to have exercised jurisdiction not vested in it by law, or to have failed to exercise jurisdiction so vested in it, or to have acted in exercise of jurisdiction illegally or with material irregularity, and the resultant effect of that would cause failure of justice, then, not only that the High Court has power to interfere under Section 115 of the Code of Civil Procedure, but it has also the duty to do so.
6. The case on hand is clearly covered by the Full Bench decision of the Allahabad High Court in Lachman v. Shambhu Narain ILR (Vol. XXXIII) Allahabad 174. In that case the plaintiff alleged that he was the owner of a grove, which he and his ancestors held rent-free, and that defendant No. 3 to 11 were his co-sharers; that the first two defendants who were the land holders of the village wrongfully dispossessed him in July, 1906, and let it to the 13th defendant, and that he, the plaintiff, as one of the owners of the grove, was entitled to be restored to possession. The suit was filed on 7-1-1907, that is to say, within six months from the date of the alleged dispossession. The suit was one for ejectment of defendants Nos. 1, 2 and 13 and for recovery of possession of the grove. The Court of the first instance found that the plaintiff was the tenant of defendants Nos. 1 and 2 in respect of the grove and not the owner of it and that he had been dispossessed within six months preceding the date of the institution of the suit. That Court therefore, made a decree in the plaintiff's favour for possession as tenant. On appeal by the defendants, the lower appellate Court held that the plaintiff had forfeited his right as tenant by denying his landlord's title; that the trees existing in the grove were of spontaneous growth and were not planted by the plaintiff or his predecessors in title, and that he was not entitled to recover possession. The lower appellate Court accordingly dismissed the plaintiff's suit. The matter was carried to the High Court. A reference was made to the Full Bench in view of the cleavage of opinion prevailing on the point. The question that fell for determination before the Full Bench was "Whether the plaintiff who sues for possession and for ejectment of the defendant on the basis of title and fails to prove his title is still entitled to a decree for possession under Section 9 of the Specific Relief Act, 1877, if he can prove possession within six months anterior to the date of his dispossession" (sic) (it should be 'date of his suit"),
7. It may be mentioned here that Section 5 of the Act corresponds to Section 8 of the Specific Relief Act, 1877 and Section 6 of the Act corresponds to Section 9 of the Specific Relief Act, 1877 (for short "the 1877 Act"). While analysing the scheme of Sections 8 and 9 of the 1877 Act, at page 180 of the report, the Full Bench of the Allahabad High Court said:
The two sections give alternative remedies and are in our opinion mutually exclusive. If a suit is brought under Section 9 for recovery of possession, no question of title can be raised or determined. The object of the section is clearly to discourage forcible dispossession and to enable the person dispossessed to recover possession by merely proving previous possession and wrongful dispossession without proving title, but that is not his only remedy. He may, if he so chooses, bring a suit for possession on the basis of his title. But we do not think that he can combine both remedies in the same suit and that he can get a decree for possession even if he fails to prove title. Such a combination would, to say the least of it, result in anomaly and inconvenience In a suit under Section 9 no question of title is to be determined, but that question may be tried in another suit instituted after the decree in that suit. If a claim for establishment of title can be combined with a claim under Section 9, the Court will have to grant a decree for possession on dispossession being proved, inspite of its finding that the plaintiff had no title and that title was in the defendant. It could not surely be the intention of the legislature that the question of title could be litigated in another suit which under the second paragraph of Section 9, the defendant would have the right to bring. In the case relied on, the claim for establishment of the plaintiffs title and for damages was dismissed, but he was granted a decree for possession. The defendant was entitled under Section 9 to bring a suit for establishment of his title, and in such suit the decision in the former suit as to title would be conclusive between the parties. So that the defendant in the first suit had merely to file his plaint in order to entitle him to a decree. This would only lead to anomaly and would promote litigation. In our judgment, when a plaintiff sues for possession on the basis of title and fails to establish title, he cannot be granted a decree for possession under the first paragraph of Section 9 of the Specific Relief Act.
8. Here in the case before me, the opponent-plaintiff in the plaint as originally filed, while seeking a decree for specific performance of the oral agreement also sought a decree for possession of the suit property against the petitioner. The relief for possession as prayed for in the original plaint was certainly based on the title to possess the property the title flowing from the agreement under which allegedly the petitioner had agreed to transfer his tenancy rights and to hand over the possession of the property to the opponent. Such a suit would certainly fail within Section 5 of the Act corresponding to Section 8 of the 1877 Act. By the amendment in question, the opponent-plaintiff inter alia wants to pray the relief for possession not on any title flowing from the agreement, or elsewhere but de hors the agreement, on the fact of possession alone. That is a relief that the opponent wants to incorporate in the plaint on the basis of Section 6 of the Act corresponding to Section 9 of the 1877 Act. As held by the Full Bench of the Allahabad High Court, the two Sections - Sections 8 and 9 of the 1877 Act give alternative remedies which are mutually exclusive, and the plaintiff cannot combine both the remedies in one and the same suit. The Allahabad High Court has pointed out as to what anomaly would creep in, if the plaintiff is permitted to combine both the remedies in one and the same suit I am in respectful agreement with that view.
9. It appears from the impugned order that before the trial Court, on behalf of the petitioner, the judgment of the Full Bench of the Allahabad High Court just now referred to by me, was relied upon. The learned- Judge has made a reference to that reliance towards the concluding portion of para 2 of his order. However, he has not even briefly referred to the proposition of law enunciated by the Full Bench of the Allahabad High Court in the judgment referred to by me hereinabove. The learned Judge has simply catalogued the authorities cited before him on behalf of the petitioner. He has not cared to discuss those authorities or to distinguish them. I do not mean to say that each and every authority relied upon by the parties should, in details, be dealt with by the Judge. But at least there should be some reference to the authority which clearly has application to the facts of the case on hand. As I see the Full Bench decision of the Allahabad High Court, that clearly covers the field in question. The learned Judge except noting the citation of that authority, has not gone any further. He has not cared to see as to what is the proposition of law laid down in that judgment. The learned Judge in such a case was required to peruse that authority and if, in his opinion, it had no application to the facts of the present case, it was his duty to have distinguished it or shown as to how it was not applicable to the facts of the present case. If on one and the same point several authorities are cited before a Judge, with a view to avoid repetition and achieve brevity, the Judge may do well by giving the list of the authorities relied upon before him by a party, and discussing the applicability of one or two authorities which may be most apposite to the facts of the case before him. But if in his judgment or order, he simply gives the list of the authorities relied upon before him by the party, without making even a passing reference to the point dealt with in those authorities, he would be doing injustice to the party, who has taken pains to find out those authorities and cited them before him. In the order impugned before me, the learned Judge has not even said as much that the authorities relied upon before him by the petitioner of which he has given the list in his judgment, are in no manner applicable to the facts of the case before him, and has thus done injustice to the petitioner.
10. Furthermore, in a suit under Section 6 of the Act, what the plaintiff has to prove is that within six months prior to the filing of the suit, he was in possession of the suit property, and that, without his consent, he has been dispossessed of the property by the defendant, otherwise than in due course of law. If the plaintiff proves only this, he is entitled to get the relief under Section 6 of the Act. In such a suit, he is not required to prove his title to possess the property, nor is the defendant in such a suit permitted to establish his title to the suit property. In such a suit, the plaintiff is not entitled to claim mesne profits or damages. In such a suit the only relief that the plaintiff can seek is for possession and nothing else. Such a suit is a summary remedy available to the plaintiff who once was in possession of the immovable property, and who, without his consent, has been dispossessed otherwise than in due course of law, provided he initiates his action within six months from the date of dispossession. In a suit contemplated by Section 5 of the Act, entirely different-consideration would govern. In a suit under Section 5 of the Act corresponding to Section 8 of the 1877 Act, the plaintiff, who seeks possession of the immovable property has to prove his title to get the possession of the property. In such a suit, the defendant would have entirely a different complexion of defences available to him. In a suit under Section 6 of the Act, the only probable defence of the defendant could be the denial of the allegation that the plaintiff was in possession of the suit property within six months preceding the filing of the suit. In a suit under Section 5 of the Act, which would obviously be based on some sort of title to possess the property, the defendant can conceivably raise a defence that the plaintiff has no title to be in possession of he property. Secondly, in a given case, the defendant can take up the plea of adverse possession or part performance, delay, laches, acquiescence, and so on and so forth. To put it differently, in a suit under Section 6 of the Act, the scope of the inquiry is very narrow. The facts required to be proved by the plaintiff would also lie in a narrow compass and the defence available to the defendant would also lie in a narrow compass. But that would not be the case in a suit contemplated by Section 5 of the Act. Therefore, if the suit based on Section 5 of the Act is permitted to be converted even alternatively into a suit under Section 6 of the Act, that would certainly prejudice the defence of the petitioner. This is one more aspect of the matter, which is required to be borne in mind.
11. As the facts show, as per the averments in the plaint as filed, the petitioner dispossessed the opponent on May 19, 1991. The suit was filed on June 18, 1991. The amendment application has been moved by the opponent on April 15, 1992, i. e., more than six months after the date of alleged dispossession. The relief for possession based on Section 6 of the Act is required to be prayed within six months from the date of dispossession. Here in the instant case, going by what the opponent would have it, it was dispossessed on May 19, 1991, and for the first time it came to the Court with a prayer for the relief for possession based on Section 6 of the Act on April 15, 1992. The opponent thus came to the Court with the prayer for the relief for possession based on Section 6 of the Act, more than six months after the date of the alleged dispossession. It was, therefore, not entitled to claim a decree for possession on the basis of Section 6 of the Act when it made such a prayer more than six months after the date of the alleged dispossession. As held by the Supreme Court in Ganesh Trading Company v. Moji Ram if the lapse of time has barred the remedy on a newly constituted cause of action, the Court should ordinarily refuse the prayer for amendment of the pleadings. Here, as indicated above, the remedy for possession based on Section 6 of the Act, which is sought to be inserted in the plaint by the proposed amendment was clearly time barred. Therefore also, the amendment in question was required to be rejected.
12. One more fact also be noticed. The opponent had, alongwith the plaint, filed a Notice of Motion for certain temporary injunctions. That Notice of Motion came to be dismissed on April 6, 1992, and it was thereafter that the opponent moved the Chamber Summons for the amendment of the plaint. This fact also is required to be borne in mind while judging the bona fides of the opponent.
13. To recapitulate, firstly, on the principle enunciated by the Full Bench of the Allahabad High Court, the opponent was not entitled to combine both the remedies - one under Section 5 of the Act, and the other under Section 6 of the Act - in one and the same suit, and therefore, the amendment as sought, was clearly liable to be rejected. Secondly, even on the score of limitation, the remedy for possession based on Section 6 of the Act was clearly time barred. Therefore also, the proposed amendment was liable to be rejected. In having allowed the amendment, I am sure, the learned Judge exercised jurisdiction not vested in him, and that, as pointed out by the Full Bench of the Allahabad High Court, would surely lead to anomaly, and would prejudice the petitioner in his defence to the suit, as indicated by me hereinabove.
14. For the purpose of allowing the amendment, the learned Judge has firstly said that the wording of Order VI Rule 17 of the Code of Civil Procedure are very clear. He has then referred to the wording of that Rule, and has proceeded to say that in view of that provision, if the amendment as prayed for is granted, then, in his view, it would help in resolving the real controversy between the parties. I fail to see how granting of such amendment would, in any manner, help in resolving the real controversy between the parties. On the contrary, by allowing the amendment, the matter would be more complicated inasmuch as two mutually exclusive remedies would be clubbed in one and the same suit, and that would prejudice the petitioner in defending the suit. The learned Judge has secondly made a rather startling proposition. He has said:
Assuming that the amendment is not allowed, then the same, in my view, would not preclude the plaintiff from filing separate suit against the defendant.
This is absolutely a fallacious proposition. If we read Sections 5 and 6 of the Act jointly, it would be abundantly clear that if the plaintiffs suit for possession based on Section 6 of the Act is decreed, then, by virtue of Sub-section (4) of Section 6, the defendant would have a remedy of suing the plaintiff to establish title to such property, and to recover possession thereof from the plaintiff, notwithstanding the fact that the plaintiff had succeeded under Section 6 of the Act in getting the decree. Conversely, if the plaintiffs suit for possession based on Section 6 of the Act is dismissed, then also, by virtue of Sub-section (4) of Section 6 of the Act, the plaintiff would have a remedy of suing the defendant to establish his title to the property, and to recover possession thereof from the defendant. Thus, both the plaintiff and the defendant of a suit under Section 6 of the Act are, by virtue of Sub-section (4) of Section 6 of the Act, left open with a remedy to file a suit to establish his title to such property, and to recover possession thereof, and such a suit as contemplated by Sub-section (4) of Section 6 of the Act would be regular suit based on title contemplated by Section 5 of the Act. But, if the plaintiff who allegedly has been dispossessed of the immovable property by the defendant chooses to file a suit for possession of the immovable property on the strength of his title to possess (the suit Contemplated by Section 5 of the Act), and fails to establish his title to possess the property, and consequently his suit is dismissed on that ground, certainly, then he cannot fall back upon Sub-section (1) of Section 6 of the Act, find pray for possession of the suit property from the defendant, merely on the ground of his previous possession within six months next before the institution of the suit, and dispossession without his consent by the defendant, otherwise than in due course of law. This is very obvious. As shown by the Full Bench of the Allahabad High Court, the object behind the remedy under Sub-section (1) of Section 6 of the Act, corresponding to the first paragraph of Section 9 of the 1877 Act, is clearly to discourage forcible and unlawful dispossession. Once the plaintiff having instituted a suit on title - a suit contemplated by Section 5 of the Act - fails to establish his title to possess the property, then, he certainly cannot be granted a decree for possession in a subsequent suit based on Sub-section (1) of Section 6 of the Act, This aspect of the matter has clearly been demonstrated by the Full Bench judgment of the Allahabad High Court. Therefore, the proposition made by the learned Judge which I have excerpted hereinabove, is absolutely a fallacious proposition, in the eye of law.
Secondly, as indicated hereinabove, the relief based on Section 6 of the Act was prayed at a time when the prayer for such a relief in a separate suit would clearly have been time barred.
15. The third reason that weighed with the learned Judge for allowing the amendment is that, allowing the amendment would avoid multiplicity of proceedings. There again, I am sure, learned Judge is clearly in error. Of course, there should be all legal efforts to avoid multiplicity of proceedings. But that would not mean that what could not be legally joined in one suit should be permitted to be joined in the name of avoiding multiplicity of proceedings. Here, as indicated above, with reference to the Full Bench decision of the Allahabad High Court, the two remedies - one under Section 5 and another under Section 6 of the Act - are mutually exclusive, and the remedy under Section 6 of the Act has a very limited scope, and the failure of the plaintiff in a suit under Section 5 of the Act would obviously preclude him from invoking the remedy under Section 6 of the Act. These features of the matter go to show that there was no scope for allowing the opponent to join the two remedies - one under Section 5 and another under Section 6 of the Act - in one and the same litigation. There was, therefore, no scope for permitting the amendment in the name of avoiding multiplicity of proceedings.
16. The principles governing the grant or refusal of amendment are to well-known to be supported by any authority. To put it generally, the approach in the matter of amendment of the pleadings should be liberal. All amendments which do not change the nature of the suit or which do not take the other side by surprise and prejudicially affect the case of the other party, or which do not put the other side to an irretrievable position, and which arise from the same cause of action should normally be permitted to be carried out or made in the pleadings. At the same time, it is now well settled that if, by the amendment, the entire nature of the suit is changed, or if entirely new cause of action is sought to be introduced or inconsistent plea is sought to be brought in, or a plea which cannot stand together with the one already existing in the pleadings is sought to be inserted or a plea which would prejudice the case of the other side or take away the vested right of the other side is sought to be put up for the first time by way of amendment, then such amendment should certainly be rejected.
17. Having considered the matter from all possible angles, I think the order of the trial Court granting the amendment, cannot be sustained, and it is required to be set aside in this Revision Application. That order is accordingly set aside, and the amendment application filed by the opponent is rejected. Rule issued in this Civil Revision Application is made absolute. However, there shall be no orders as to costs.