Supreme Court - Daily Orders
Ashok Kumar Gupta vs Mithai Lal on 13 November, 2021
Bench: D.Y. Chandrachud, A.S. Bopanna
CA 6861/2021
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 6861 of 2021
(Arising out of SLP (Civil) No 1979 of 2020)
Ashok Kumar Gupta and Others Appellant(s)
Versus
Mithai Lal Respondent
ORDER
1 Leave granted.
2 This appeal arises from a judgment of a Single Judge of the High Court of Judicature at Allahabad dated 17 December 2019. The High Court allowed a petition instituted by the respondent under Article 227 of the Constitution 1 and set aside the judgment of the District Judge, Sonebhadra. The District judge had upheld an order of the Civil Judge (Junior Division) which allowed an application for amendment under Order 6 Rule 17 of the Code of Civil Procedure 1908.
3 A tenancy agreement was executed between the appellants and the respondent on 26 June 1997 in respect of a house constructed on plot No 1 Matters under Article 227 No 9553/2019 Signature Not Verified Digitally signed by Chetan Kumar Date: 2021.11.16 18:46:57 IST Reason: CA 6861/2021 2 174, Hindudhari, Post – Tendu, Pargana Badahar, Tehsil Robertsganj, District Sonebhadra. The respondent initially instituted a suit, being Original Suit No 181 of 1998, before the Civil Judge (Junior Division) for a permanent injunction restraining the appellants from interfering with his possession. The Amin submitted a report dated 3 August 1999. The appellants instituted a suit, Civil Suit No 112 of 2007 before the Civil Judge (Junior Division), against the respondent for eviction.
4 On 4 September 2018, the appellant filed an application for amendment of the plaint under Order 6 Rule 17 seeking to add the ground that the respondent had committed an act of encroachment by constructing toilets on the westward and the southern sides of the suit property. The respondent objected to the amendment. The amendment was allowed by the Civil Judge (Senior Division) by an order dated 4 December 2018, holding that no change in the nature of the suit was occasioned by the proposed amendment.
5 Against the order of the trial Judge, a revision was carried to the District Judge. The proceedings were remanded on 23 March 2019 for a fresh determination. On remand, the application for amendment was allowed by the trial Judge on 22 August 2019. The order of the trial Judge was upheld by the District Court on 1 November 2019. A writ petition was filed by the respondent under Article 227 of the Constitution to challenge the judgment of the District Court. The Single Judge of the High Court reversed CA 6861/2021 3 the judgment of the District Judge.
6 We have heard Ms Samridhi S Jain, learned counsel for the appellants. The respondent has not appeared despite being served. 7 The High Court has reversed concurrent findings of both the trial Judge and the District Court that the amendment did not change the nature of the cause of action. The case of the appellants is that an encroachment was committed by the respondent during the pendency of the proceedings which occasioned the application for amendment. The High Court relied upon the report of the Amin as indicating that the construction sought to be removed by means of the amendment stood on the property in question and held that this would necessarily entail considering the rights that may have accrued to the respondent by passage of time.
8 On the other hand, it has been urged on behalf of the appellants that the constructions which are reflected in the report of the Amin do not include the constructions which were sought to be incorporated for the purposes of the proposed amendment. Be that as it may, the issue as to whether the construction of the toilets took place after the institution of the proceedings or was already in existence on the date of the report of the Amin is a question of fact on which evidence would have to be adduced at the trial. There is merit in the submission of the appellant that the amendment did not change the nature of the suit or introduce a new cause of action. The CA 6861/2021 4 concern which the High Court has expressed in regard to delay can be taken care of by directing that the issue of limitation would be kept open. 9 In the above circumstances and having regard to the provisions of Order 6 Rule 17 of the Code of Civil Procedure 1908, we are of the view that the High Court was not justified in reversing the concurrent findings of the trial court and the District Court.
10 We accordingly allow the appeal and set aside the impugned judgment and order of the Single Judge of the High Court dated 17 December 2019. The application for amendment shall stand allowed in terms as directed by the trial Judge subject to the clarification that the issue of limitation, if any, is kept open to be decided during the course of the trial. 11 Pending applications, if any, stand disposed of.
......…...….......………………........J. [Dr Dhananjaya Y Chandrachud] ........…........……………….…........J. [A S Bopanna] New Delhi;
November 13, 2021
CKB
CA 6861/2021
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ITEM NO.6 Court 4 (Video Conferencing) SECTION III-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.6861/2021
ASHOK KUMAR GUPTA & ORS. Appellant(s)
VERSUS
MITHAI LAL Respondent(s)
(With appln.(s) for IA No.10916/2020 - EXEMPTION FROM FILING O.T. and IA No.10919/2020 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/ FACTS/ANNEXURES) Date : 13-11-2021 These matters were called on for hearing today. CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE A.S. BOPANNA For Appellant(s) Ms. Samridhi S. Jain, Adv.
Mr. Sangramsingh R. Bhonsle, Adv. Mr. Nrupal A. Dingankar, Adv. Ms. Pushkara A. Bhonsle, Adv. Mr. Sameer Abhyankar, AOR For Respondent(s) UPON hearing the counsel the Court made the following O R D E R 1 Leave granted.CA 6861/2021 6
2 The appeal is allowed in terms of the signed order.
3 Pending applications, if any, stand disposed of.
(CHETAN KUMAR) (SAROJ KUMARI GAUR)
A.R.-cum-P.S. Court Master
(Signed order is placed on the file)