Chattisgarh High Court
Girja Prasad Patel vs Vrinda Bai Patel on 23 February, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP (227) No.43 of 2022
• Girja Prasad Patel, aged about 42 years, S/o Girdhar Prasad
Patel, R/o village Bhelwadih, Tahsil Kharsiya, District Raigarh
(CG)
---- Petitioner/plaintiff
Versus
1. Vrinda Bai Patel, aged about 48 years, w/o Ram Prasad Patel,
R/o village Bhelwadih, Tahsil Kharsiya, District Raigarh (CG)
2. State of Chhattisgarh Through Collector, District Raigarh (CG)
---- Respondents
For Petitioner : Mr. Ram Kumar Tiwari Advocate with Mr. F.S. Khare, Advocate For Respondent No.1 : Mr. Govind Dewangan, Advocate For Respondent No.2 : Mr. Wasim Miyan, Panel Lawyer Hon'ble Mr. Justice Parth Prateem Sahu Order On Board 23/2/2022
1. Petitioner-plaintiff filed this petition under Article 227 of the Constitution of India challenging order dated 30.9.2021 passed in Civil Suit No.5A/2019 by which learned 2 nd Civil Judge Class-II, Kharsiya, District Raigarh rejected application of petitioner filed under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC').
2. Learned counsel for plaintiff/petitioner would submit that when respondent No.1/defendant No.1 started raising construction over the suit property owned by petitioner/plaintiff, he filed civil suit seeking relief of permanent injunction and cost of removing construction/encroachment made on suit land. Plaintiff has specifically pleaded in plaint that he is owner and 2 in possession of suit land. After service of summons, defendant No.1/respondent No.1 filed her written statement on 5.7.2019 denying title of petitioner/plaintiff over suit land, which made the petitioner to file an application for amendment seeking relief of declaration of title and change in valuation of court fee i.e. additional payment of court fee of Rs.1,000/- for the relief of declaration of title. He further submits that in amendment application petitioner/plaintiff has not sought any amendment in facts pleaded in plaint. By way of amendment, petitioner/plaintiff is seeking further relief of declaration of title, which will not in any manner change nature of suit. Amendment application is filed immediately after filing of written statement by defendant No.1/respondent No.1 and before framing of issues by Court below. Petitioner/plaintiff made prayer for amendment by filing an application under Order 6 Rule 17 of CPC at the initial stage of suit for just decision of suit, hence Court below ought to have allowed the same. However, Court below without considering nature of amendment sought of adding one more relief, stage of proceedings, erroneously rejected amendment application holding that incorporation of amendment sought for would change nature of suit. Hence, impugned order be set aside and amendment application of petitioner be allowed. In support of his submissions, he places reliance on decision of Hon'ble Supreme Court in case of Surendra Kumar Sharma vs. Makhan Singh reported in (2009) 10 SCC 626 and also of 3 Co-ordinate Bench of this Court in case of Yashoda Bai through LRs vs. Umashankar Gupta & ors reported in 2020 (3) CGLJ 497.
3. Mr. Govind Dewangan, learned counsel for defendant No.1/ respondent No.1 opposes submissions of learned counsel for petitioner and submits that application for amendment is filed belatedly. At the time of filing of suit, plaintiff/petitioner has not prayed for any relief of declaration of title. After lapse of around seven months from filing of written statement by defendant No.1, plaintiff/petitioner moved application seeking amendment in relief clause. Amendment sought for would change nature of suit, hence the Court below has rightly rejected amendment application of plaintiff/petitioner. He submits that there is no merit in this petition.
4. Mr. Wasim Miyan, learned Panel Lawyer for the State submits that the State is a formal party.
5. I have heard learned counsel for parties and perused the record of writ petition.
6. Plaintiff/petitioner has filed copy of plaint along with petition as Annexure P-2. Perusal of pleadings made in plaint, particularly Paragraph-2 & 3, would reveal that civil suit against defendant No.1/respondent No.1 is filed by plaintiff/petitioner on the ground that land, which is subject matter of civil suit, is owned and possessed by him. Pleading to the effect that plaintiff/ petitioner is owner of suit land is very much there in original 4 plaint. Written statement filed defendant No.1/ respondent No.1 is available on record as Annexure P-3. Glance of the same would show that averments relating to ownership and possession of plaintiff made in Paragraph 2 & 3 of plaint are denied by defendant No.1/respondent No.1. After filing of written statement, plaintiff/petitioner moved an application for amendment seeking further relief of declaration of title of suit land in relief clause. Amendment application is filed prior to commencement of trial i.e. before framing of issues by the Court below. Relief sought to be incorporated in relief clause is based on original pleadings made in plaint, therefore, in the considered opinion of this Court, amendment as sought for by plaintiff/petitioner will not in any manner change the nature of suit.
7. So far as submission of learned counsel for defendant No.1/ respondent No.1 that application for amendment is filed at belated stage is concerned, the same is also not sustainable for the reason that application for amendment is filed immediately after filing of written statement by defendant No.1 denying title of plaintiff over suit land, before framing of issues by Court below. Hence, application for amendment filed by plaintiff/petitioner cannot be said to be at belated stage.
8. Hon'ble Supreme Court in case of Surender Kumar Sharma (supra) while considering belated application for amendment has held that merely on the ground of delay, application for 5 amendment is not liable to be rejected, if Court finds that by allowing application real controversy between the parties may be resolved. In Paragraph 6 & 7 of the judgment Hon'ble Supreme Court has held thus:-
"6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. (See B.K. Narayana Pillai v. Parameswaran Pillai1). Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed.6
Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed."
9. Hon'ble Supreme Court in case of Pankaja & another vs. Yellappa (dead) by LRs & others reported in (2004) 6 SCC 415 while considering application for amendment in plaint, especially in relief clause seeking to add relief of declaration of title/ ownership over suit property, held thus:-
"16. This view of this Court has, since, been followed by a three Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors.5. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with Court in allowing or disallowing such amendment in the interest of justice.
18.We think that the course adopted by this Court in Ragu Thilak D. John's case1 applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendments sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent 7 in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief."
In case of Raghu Thilak D. John vs. S. Rayappan & ors reported in (2001) 2 SCC 472 Hon'ble Supreme Court has observed that the dominant purpose of allowing amendment is to minimize the litigation.
10. Hon'ble Supreme Court in above two rulings has observed that amendment should be allowed liberally to avoid multiplicity of litigation. Amendment sub-serving the ultimate cause of justice and avoiding further litigation should be allowed. In case at hand, civil suit is filed by plaintiff/petitioner on 5.2.2019; written statement was filed by defendant No.1 / respondent No.1 on 5.7.2019 and thereafter application for amendment was filed plaintiff/petitioner on 12.2.2020. Petitioner has already pleaded in plaint that he is owner and in possession of land in dispute. In view of aforementioned pleading of facts available in plaint in specific term, in the opinion of this Court, seeking further relief of declaration of title will not change the nature of suit. The Court below failed to properly exercise jurisdiction vested in it by law. Hence, the petition deserves to be allowed.
11. Accordingly, writ petition is allowed. Impugned order dated 30.9.2021 is set aside. Application filed under Order 6 Rule 17 read with Section 151 of CPC for amendment is allowed. 8
Plaintiff/petitioner be permitted to carry out amendment as sought for in amendment application dated 12.2.2020. Defendant No.1/respondent No.1 will also be at liberty to make prayer for consequential amendment in written statement by way of filing appropriate application, if they so desire. No order as to costs.
12. Certified copy as per rules.
Sd/-
(Parth Prateem Sahu) Judge roshan/-