Madhya Pradesh High Court
Smt. Uma Gupta vs Smt. Sushila And Anr. on 30 January, 1989
Equivalent citations: AIR1989MP169, AIR 1989 MADHYA PRADESH 169, (1989) 2 CURCC 72
ORDER S.K. Dubey, J.
1. This is a revision under Section 115 of the CP.C. against the order dt. 9th Dec., 1988 passed by the 2nd Additional Judge to the Court of District Judge, Indore, in Civil Original Suit No. 71 of 1988, whereby the plaintiff's application under Order 6, Rule 17, CP.C for amendment has been rejected.
2. The material facts leading to this revision are that the petitioner's husband and respondent No. 1's husband are real brothers. The petitioner's husband is a retired Superintending Engineer of the Public Works Department of the State. The plaintiff-petitioner filed a suit for declaration and injunction in relation to the plot of land situated in Saket Nagar Colony in Village Khajarana, Tehsil and District Indore. According to the plaintiff, this plot was purchased by the plaintiff by a registered deed of sale for Rs. 6,000/- out of her own savings, in the name of defendant No. 1 as the plaintiff and defendant No. 1 are related and defendant No. 1 had ho property in her name at Indore. This transaction was a benami transaction as the real owner was the plaintiff. As the deed was registered in the name of defendant No. 1, defendant No. 1 executed an irrevokable Power of Attorney in favour of the plaintiff but at the instance of defendant No. 2, defendant No. 1 issued a notice for cancellation of the said Power of Attorney. The plaintiff having come to know that defendant No. 1, in collusion with defendant No. 2, is trying to become the owner of the suit property, filed a suit for declaration and permanent injunction restraining defendant Nos. 1 and 2 from alienating or in any manner transferring the suit property. Defendant Nos. 1 and 2 filed their written statement and denied the allegations. Defendant No. 1 claimed that she is the owner of the property. The plaintiff-petitioner filed an application under Order 6, Rule 17, C.P.C. whereby she wanted to place on record the circumstances to show that the suit land came to the share of the plaintiff and her husband in the family arrangement between the husband of the plaintiff and his two brothers, who constituted a Hindu Undivided Family. By the proposed amendment, the plaintiff wanted to add her husband as plaintiff No. 2 in the cause title of the suit and wherever there was the word 'plaintiff written in the plaint, it be read as 'plaintiff No. 1'. Para. 15(a) related to the title of the plaintiff's husband and the plaintiff, which they got by a deed of family settlement. In the relief clause, the word 'sole' was prayed to be deleted by the plaintiff in para 28 of the plaint.
3. The defendants filed their reply and opposed the application for amendment on the ground that the plaintiff, under the garb of the amendment application, wants to substitute a distinct cause of action and wants to build up a new case entirely different from the original claim, which has no foundation at all. It was also contested that the plaintiff has moved this application so as to defeat the provisions of the Benami Transactions (Prohibition) Act, 1988. In view of the provisions of this Act, the suit is not maintainable. Hence, to keep it alive, the plaintiff has come up with the proposed amendment.
4. The learned trial Court, after perusal of the pleadings and after hearing the parties, by its impugned order dt. 9-12-88, rejected the application for amendment.
5. Shri S. C. Bagdiya, learned counsel for the petitioner-plaintiff, read before this Court the proposed amendment and contended that the subject-matter of the suit is the same but the plaintiff has come with an additional approach in relation to her title to the suit property, which was received by her husband in the family settlement. The proposed amendment was necessary for determining the real controversy in the suit and also to avoid multiplicity of the proceedings. In case the amendment is not allowed, the plaintiff will have to file a fresh suit. The case is at its initial stage and so far, recording of evidence has not commenced. Therefore, learned counsel submitted that no injustice will be caused to the defendants if the proposed amendment is allowed, which would also be proper to shorten the litigation. He further contended that the trial Court has decided the application for amendment after considering the merits and demerits of the proposed amendment. As such, the approach of the trial Court is illegal. He placed reliance on a case of the Apex Court in Nichhalbhai Vallabhai v. Jaswantlal Jinabhai, AIR 1966 SC 997 and two decisions of this Court, reported as short notes, in Ishwarsingh v. Mohansingh, 1963 MPLJ (S.N.) 104 and Sri Ambaji Traders P. Ltd. v. Hindustan Steel Limited, 1963 MPLJ (S.N.) 252. Two cases of the Madras and Orissa High Courts reported in M. K. Krishna Rao v. Sri Gangadeswarar Temple, AIR 1949 Mad 433 and Laxman Patnaik v. Cuttack Municipal Council, AIR 1985 Orissa 90 were also relied upon.
6. Shri G. M. Chaphekar, learned counsel for the respondents, contended that while considering the mala fides, the trial Court has given its reasonings for not allowing the amendment but it cannot be said that the trial Court has considered the merits or demerits of the proposed amendment. By the proposed amendment, the plaintiff-petitioner wanted to displace the existing cause of action with entirely a new cause of action. The original claim is based on the plaintiff's own independent title as according to her, the purchase of the said plot of land in the name of defendant No. 1 was benami. Therefore, the real controversy in the suit in relation to the subject-matter was whether the plaintiff is the real owner and whether defendant No. 2 is a benami or an ostensible owner. Meanwhile, as the Benami Transactions (Prohibition) Act, 1988 came into force, the plaintiff came with an entirely different case that the plaintiffs husband and she got the suit property in a family settlement. Such an amendment could not be allowed. He placed reliance on a Privy Council decision in Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249 and a decision of the Apex Court in Modi Spinning and Weaving Mills Company Limited v. Ladha Ram and Co., AIR 1977 SC 680. Learned counsel submitted that in fact the original claim was entirely given up and a new case was set up. It cannot be said to be a bona fide amendment Moreover, allowing or refusing an amendment is a discretion of the Court. The impugned order being an interlocutory order, cannot be interfered in revisional jurisdiction, in view of the provisions of Section 115 of the C.P.C.
7. In this revision, the point for determination is whether the trial Court erred in law in refusing to allow the amendment sought for by the plaintiff in her plaint? I agree with the contention of Shri Chaphekar, learned counsel for the respondents, that while allowing or disallowing an application for amendment, there is an exception to the rule that one cause of action cannot be substituted by another distinct cause of action. Applications for amendment are rarely rejected because it is trite law that all rules of Courts are nothing but provisions intended to secure to the proper administration of justice and it is, therefore, essential that they should be weighed to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should also be liberally exercised. But there is a solitary exception to this rule, which is equally well settled and the Court cannot shut its eyes to the well settled law, that no power has been given to a party to enable it to substitute one distinct cause of action for another, by way of an amendment. It is no doubt true that inconsistent pleas of facts can be raised but there must be some foundation in the original plaint.
8. Before I deal with this question in relation to the proposed amendment, from the impugned order of the trial Court, I find that while considering the application for the proposed amendment, the Court has applied its mind to merits and observed in para 1, after considering the arguments while dealing with the question that the proposed amendment cannot prima facie be bona fide, the plea in regard to the document was considered and thereafter, the trial Court proceeded with the consideration of the application of proposed amendment and after placing reliance on a decision of the Apex Court in AIR 1977 SC 680 (supra), held that as the plaintiff is seeking to displace completely the original claim, such an amendment cannot be allowed. In my opinion, the approach of the trial Court was erroneous. It is also now a trite law that while considering an application for amendment whether it should or should not be allowed, the Court ought not to go into the alleged falsity of the case in the amendment or the availability to the plaintiff of the ground sought to be added. The merits of the proposed amendment or the truth or falsity cannot be considered at that stage. The findings on merits of the proposed amendment sought for could not be arrived at without first allowing the amendment, then framing an issue thereon and allowing both parties to lead evidence. The trial Court was mainly influenced by the genuineness of the claim sought for without considering the important aspects, i.e. whether the amendment, if allowed, would work injustice to the other side or the application made is mala fide or the proposed amendment is prohibited by law or it is not necessary for determining the real controversy or an original cause of action is being substituted by one distinct cause of action and new claim, is being made on a new basis constituted by new facts. Therefore, in the given facts of the case, without expressing any opinion on the point whether the amendment could or could not be allowed it would be proper to direct the trial Court to reconsider the application without being influenced about the truth or falsity or merits of the proposed amendment.
9. In the result, this revision is allowed. The impugned order is set aside with a direction that the trial Court shall reconsider the application for amendment without being influenced about the merits of the proposed amendment and shall dispose of the application in accordance with law. The parties shall appear before the trial Court on 15th of Feb., 1989 for rehearing on the application for amendment. In the circumstances of the case, parties shall bear their own costs of this revision.