Himachal Pradesh High Court
Sh. Satish Malhotra vs Sh. Mool Raj Raizada And Another on 17 May, 2018
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.: 199 of 2017.
.
Decided on: 17.05.2018.
Sh. Satish Malhotra ....Petitioner.
Versus
Sh. Mool Raj Raizada and another ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Tara Singh Chauhan,
r Advocate.
For the respondents :Mr. N.K. Thakur, Sr. Advocate
with Mr. Nitish Negi, Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged order dated 06.04.2017, passed by the Court of learned Senior Civil Judge, Una, District Una, in CMA No. 361-VI-15 filed in Civil Suit No. 781 of 2013, vide which an application filed under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short) by the plaintiffs for amendment of the plaint stood allowed by the learned Court below subject to payment of cost of 5,00/-.
::: Downloaded on - 23/05/2018 22:51:07 :::HCHP2. Brief facts necessary for adjudication of the present petition are that respondents/plaintiffs (hereinafter .
referred to as 'plaintiffs') filed a suit for possession of land measuring 0-16-86 Hectares, comprised in Khewat No. 202 min, Khatauni No. 347 min, Khasra No. 2109, situated in Up-
Mohal Behdala, Tehsil and District Una, HP (hereinafter referred to as 'suit land') as per jamabandi for the year 2003- 04 and also for recovery of 36,000/- as recovery of arrears of rent alongwith interest and mesne profit. Averments made in paras 1 to 4 of the original plaint are reproduced herein below:-
"1. That the plaintiffs are owner of the land measuring 0- 16-86 Hectare bearing Khewat No. 202 min, Khatouni No. 347 min, Khasra No. 2109 as per the Jamabandi for the year 2003-04 situated in Up-Mohal Behdala Tehsil and Distt. Una.
2. That the defendant had taken the said land on lease which expired in the year 1999 but have not vacated the said land even after the expiry of the lease period.
3. That the defendant has also not paid the lease amount which was fixed as Rs. 12,000/- per year. The plaintiff No. 1 got issued legal notice dated 14.2.2002 to the defendant to vacate the said land and to pay the outstanding lease amount but the defendant failed to vacate the said land and requested for some more time as the brick kiln is installed on the suit land. The defendant was requested again and again to vacate the land but the ::: Downloaded on - 23/05/2018 22:51:07 :::HCHP defendant took one or the other excuse and till date has not vacated the said land.
4. That the lease granted in favour of the defendant stand .
already terminated and the defendant is in unauthorized possession of the land w.e.f. 1.4.2002."
3. The relief sought in the original plaint is reproduced herein below:-
"It is, therefore, prayed that a decree for vacant possession of land measuring 0-08-43 Hectare being ½ share out of 0-16-86 Hectare bearing Khewat No. 202 min, Khatouni No. 347 min, Khasra No. 2109 as per the Jamabandi for the year 2003-04 situated in Up-Mohal Behdala Tehsil and Distt. Una and for recovery of Rs. 36,000/- as arrear of rent with interest @ 9 % per annum, may kindly be passed in favour of the plaintiff and against the defendant. The decree for the recovery of mesne profit and for the use and occupation of the premises w.e.f. the date of institution of the suit till the vacation of the premises @ Rs. 1000/- per month may also be passed.
The court may grant any other relief also which may be found proper in the circumstances of the case and in the interest of justice."
4. In the written statement so filed to the suit, the stand of the defendant was that the suit land was on lease with the defendants which they had so taken from the plaintiffs for a period which subsisted till the year 2030. On these bases, the averments as pleaded in the plaint, were denied and it was also mentioned in the written statement ::: Downloaded on - 23/05/2018 22:51:07 :::HCHP that there was no question of vacation of the suit land and suit was thus, premature.
.
5. During the pendency of the civil suit, plaintiffs filed an application under Order 6, Rule 17 of the CPC praying for amendment of the suit. The amendment sought in the suit was that during the course of arguments, plaintiffs realized that by mistake, in the relief clause, decree was sought for vacant possession of half share of the suit land whereas plaintiffs were entitled for decree of possession of the entire suit land. According to the plaintiffs, there was no discrepancy in the description of the suit land in the plaint and it was clearly mentioned in the plaint that plaintiffs were owners of the entire suit land and thus the discrepancy in the relief clause was a mistake which was purely a clerical error.
Thus, by way of all the proposed amendments, the plaintiffs prayed for decree for vacant possession of the entire suit land alongwith other reliefs already earlier prayed.
6. The application was resisted by the defendants on the ground that the amendment, if allowed, would change the entire nature of the case and the proposed amendment was not within the ambit of provisions of Order 6, Rule 17 of the CPC.
::: Downloaded on - 23/05/2018 22:51:07 :::HCHP7. Learned trial Court while allowing the application so filed by the plaintiffs for amendment of the plaint held that .
though amendment was being sought at a belated stage, but as the same was necessary for effective adjudication of the case as in the head note of the plaint, the suit land has been described properly but it was only in the prayer clause that the same was incorrectly mentioned on account of a clerical mistake, therefore, application deserved to be allowed as no prejudice shall be caused to the defendant by making correction of a clerical mistake. Learned trial Court also held that question of termination of tenancy can otherwise be seen at the time of final arguments. Accordingly, it allowed the application in issue, subject to payment of cost of 500/-.
8. Feeling aggrieved, the petitioner/defendant has filed the present petition.
9. I have heard learned Counsel for the parties and gone through the impugned order as also the records of the case.
10. It is not in dispute that in the plaint so filed by the plaintiffs, they had claimed to be owners of the entire suit land. According to the plaintiffs, the lease of rent in favour of defendant had expired in the year 1989 and despite this, ::: Downloaded on - 23/05/2018 22:51:07 :::HCHP defendant had not vacated the suit land and was in unauthorized possession of the same. Now in the written .
statement so filed to the original plaint, the factum of the plaintiffs being owners of the suit land was not disputed by the defendant. The stand of the defendant was that the lease was continuing and was to expire in the year 2030, and therefore, the suit was premature.
11. When one peruses the application filed under Order 6, Rule 17 of the CPC filed for amendment of the plaint, it is apparent that the amendment sought for was a bonafide amendment as in fact a typographical error had crept in the prayer clause of the plaint wherein erroneously possession of only half of the suit property stood claimed by the plaintiffs.
The reason as to why this typographical error crept in, is not too far to be searched for. The records demonstrate that two notices i.e. one each on behalf of each of the plaintiffs was issued by learned Counsel to the defendants, in which each of the plaintiffs had claimed half of the suit property. Obviously, this was done because there were two owners and both of them were entitled to half share of the suit land. As has been explained by learned Senior Counsel appearing for the respondents/plaintiffs, inadvertently, due to a typographical ::: Downloaded on - 23/05/2018 22:51:07 :::HCHP error, in the prayer clause, rather than claiming the vacant possession of the entire suit land on behalf of both the .
plaintiffs, only vacant possession qua half of the suit land was prayed which apparently was a typographical error, as while drafting the plaint, prayer clause was got typed in a mechanical manner, taking into consideration the averments made in the notice so issued by the land owners/plaintiffs to the defendants.
12. In these circumstances, in my considered view, there is no perversity in the order passed by the learned trial Court whereby it allowed the plaintiffs to carry out the necessary amendment in the prayer clause of the plaint.
Incidentally, taking into consideration the fact that the defendant has not denied the ownership of the plaintiffs over the entire suit land, the amendment which has been allowed by the learned trial Court does not prejudices the case of the defendant at all, because according to the defendants, though the land is on lease with them but the said lease is continuing till the year 2030 and this is a point for determination before the learned trial Court. Therefore also there is no infirmity in the order so passed by the learned trial Court.
::: Downloaded on - 23/05/2018 22:51:07 :::HCHP13. Hon'ble Supreme Court in case titled as Abdul Rehman and another versus Mohd. Ruldu and others, .
(2012) 11 Supreme Court Cases 341, has reiterated that all amendments which are necessary for the purpose of determining the real question in controversy between the parties, should be allowed if it does not change the basic nature of the suit and a change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.
14. In view of above discussion, as also the law laid down by Hon'ble Supreme Court in case referred to supra, as there is no merit in the present petition, the same is accordingly dismissed.
15. At this stage, learned Counsel for the petitioner prays that the cost imposed by the learned trial Court while allowing the amendment is on the lower side. This Court concurs with the prayer so made by learned Counsel for the petitioner and orders that the amendment in the plaint shall be subject to further payment of cost of 3,000/- by the plaintiffs to the defendant, which shall be in addition to the ::: Downloaded on - 23/05/2018 22:51:07 :::HCHP cost already imposed by the learned trial Court. Parties through their learned Counsel are directed to appear before .
the learned trial Court on 28.05.2018. Registry is directed to forthwith send the records of the case to the learned trial Court so that the same may reach to the learned trial Court well in time.
Petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.
r (Ajay Mohan Goel)
Judge
May 17, 2018.
(narender)
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