Gauhati High Court
Sri. Amar Singh Chetri vs Sri. Bijay Chandra Modak And Ors. on 2 July, 1992
Equivalent citations: AIR1993GAU50, AIR 1993 GAUHATI 50, (1992) 2 GAU LR 256 (1993) 1 CURCC 273, (1993) 1 CURCC 273
ORDER U.L. Bhat, J.
1. The revision petitioner is the plaintiff. He filed a suit for declaration of title and for permanent prohibitory injunction restraining the defendants from interfering with his peaceful possession. An order of injunction was passed in his favour and that was vacated after hearing the defendants. This was on 19-9-85. The plaintiff filed an application to withdraw the suit with permission to file a fresh suit since according to him the defendants after the injunction was vacated, trespassed into the property and reduced into his possession on 20-9-85. The Court dismissed the application. Thereafter the plaintiff filed an application to amend the plaint seeking to substitute the prayer for decree for permanent injunction by a prayer for recovery of possession. The lower Court dismissed the application on the ground that the plaintiff was out of possession on the date of the suit and should have sued for possession and not injunction in the original plaint, that the question of dispossession during the pendency does not arise and the amendment, if allowed, would convert it into a new suit. That would prejudice the defendants. This order is now challenged.
2. Rule 17 of Order 6, Civil Procedure Code empowers the Court, at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The Rule also indicates that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. This provision has received a liberal interpretation at the hands of the Supreme Court and the various High Courts of the country. Two such earlier decisions of the Supreme Court are in Pir-gonda Hongonda Patil v. Kalgonda Shid-gonda Patil, AIR 1957 SC 363, and L. J. Leach and Co., Ltd. v. Jardine Skinner and Co., AIR 1957 SC357 : (1957 AH LJ 794). Undoubtedly the power conferred under Order 6, Rule 17, Civil Procedure Code is a discretionary power of wide amplitude, it cannot be encased between the strait-jacket of an inflexible formula. The Supreme Court in the former case quoted with approval the following passage in Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644 at p. 655, when he said at pp. 649-650.
"All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties..... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same can the amendment be allowed without injustice to the other side, or can it not ?"
Even if the suit, as amended would be barred by limitation, the Supreme Court has cautioned in the latter case, that it is only a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice.
3. Ordinarily, in dealing with an application to amend the plaint, the court would ask questions like -- whether the application would alter the nature and character of the suit so fundamentally as to cause irreparable injury to the opposite party, whether the amendment is necessary for the purpose of determining the real questions in controversy between the parties and whether the proposal of the amendment is devoid of bona fides.
4. The lower Court did not address itself to these questions but went on tangentially to observe that plaintiff was out of possession on the date of the suit, a matter which yet remains to be decided in the suit. In the application for temporary injunction, the court was not satisfied prima facie about the plaintiff's possession on the date of suit; that would not conclude the matter in so far as the suit is concerned. The matter is still open till the decision of the suit, if a decision is necessary for the proper disposal of the suit.
In the proposed amendment plaintiff makes a categorical averment of trespass by the defendants into the suit land. The trial Court without allowing the amendment and without calling upon the defendants to file additional written statement and without deciding the point on evidence yet to be adduced could not have come to the conclusion that the plea of trespass pending suit is false. The lower Court was in serious error in relying solely on the order in the injunction application and on that basis rejecting the claim for amendment. The lower Court also missed the fact that when the plaintiff desired to withdraw the suit as constituted at present with permission to file a fresh suit obviously for declaration of title and recovery of possession, it was opposed by the defendants and rejected by the Court. The plaintiff had no option but to move for amendment of the plaint seeking relief of recovery of possession also. The controversy between the parties as to who is entitled to remain in possession could be decided only if the amendment is allowed and parties join issue on the matter and issue is decided. The amendment is therefore necessary in order to adjudicate the real controversy between the parties. The question of defendants suffering prejudice or irreparable injury also does not arise, since it is open to the defendants to file additional written statement raising appropriate contentions including one of denial of trespass and bar of limitation and the like. On the basis of the averments made in the amendment prima facie bar of limitation does not arise. Bar of limitation could very well be pleaded in regard to the relief of recovery of possession and also the relief of declaration of title. Those pleas if raised will have to be decided in the suit. The lower Court did not address itself to the question whether the proposed amendment would alter the nature and character of the suit. The amendment would not bring about such a change in the nature of the suit. The conclusion of the lower Court that the suit will become a new suit for ejectment is of course correct, but on the plea of the plaintiff that the defendants trespassed into the property during the pendency of the suit, it cannot be said that he should be disentitled from converting the suit into one from declaration and permanent injunction to one for declaration and recovery of possession. The lower Court has failed to exercise jurisdiction vested in it and the same requires interference.
5. In the result, I set aside the impugned order and allow the amendment application filed by the plaintif and the defendants will be at liberty to file additional written statement. The revision petition is allowed but without costs.