Gujarat High Court
Gulabrai Mohanlal Thakur vs Dolatram Mohanlal Thakur on 13 November, 1998
Equivalent citations: (1999)2GLR1562
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. The order of the 7th Joint Civil Judge (S.D.), Vadodara dated 3-8-1998 in Regular Civil Suit No. 227 of 1998 below Ex. 17 under which the application filed by the plaintiff-petitioner for the grant of permission to amend the plaint has been rejected, gives rise to this revision application in this Court under Section 115 of the C.P.C.
2. The plaintiff-petitioner filed Regular Civil Suit No. 227 of 1998 in the Court below on 21-2-1998. The application under Order 6 Rule 17 C.P.C. for grant of permission to amend the plaint has been filed by the plaintiff-petitioner on 2-3-1998. The plaintiff-petitioner and the defendant-respondent are the real brothers. The suit has been filed by the plaintiff-petitioner for injunction that the defendant-respondent may be restrained from raising any construction in the disputed property so as not to close his windows and doors in his house at first floor. Along with the suit he filed an application for grant of temporary injunction and from the facts of this case it turns out that the learned trial Court has granted temporary injunction, which continues. By this application under Order 6 Rule 17 C.P.C, the plaintiff has prayed for inserting of two additional paragraphs in the plaint. Briefly stated the proposed amendment is that the plaintiff and the defendant live separately since many years and the shares of the defendant and plaintiff in the property are different and the plaintiff lives in the portion towards South and defendant in portion towards North. Both of them made construction in their respective portions as per the understanding between them. There is 60% space in the ground floor in possession of defendant. The plaintiff has got 40% space in his favour so that the defendant has got 10% more space on the ground floor. Therefore, as per the understanding between the plaintiff and the defendant the plaintiff has got 60% space on the first floor and second floor and the defendant has got 40% space. As per the agreement it was agreed that the defendant would do construction work in space of 40% on first and second floor but the defendant in the present case has started to possess space more than 40% and has started construction after leaving margin of only 4 feet away from the windows/doors of two rooms of the plaintiff on the first floor even though it was agreed to leave a margin of 8 feet, and is attempting to snatch away plaintiffs space of 4 feet. In the bedrock of these averments the plaintiff prays for declaration that the defendant has no right or authority to do construction work in the space more than as agreed between the plaintiff and the defendant and accordingly prayed for the permanent injunction only. The second proposed amendment is that the defendant is raising the construction without obtaining the permission from the Baroda Municipal Corporation, which is necessary. He prayed for the declaration that without taking prior permission the defendant has no right or authority to do construction work and accordingly prayed for the injunction.
3. This proposed amendment has been objected by the defendant on the ground that it will change the nature of the suit and further it will cause injustice to the defendant. Elaborating this objection the defendant has stated that initially the plaintiff has come up with the case of easementary rights of light and air through the disputed doors and windows. By this proposed amendment he is claiming a right on the basis of some understanding between him and the defendant leaving of the space in the disputed property before raising the construction. After hearing the learned Counsels for the parties under the order impugned in this C.R.A., the learned trial Court rejected the application. The learned trial Court has rejected this application on the ground that this proposed amendment in the plaint will change the nature of the suit. The cause of action is different and reliefs will be changed from the cause of action mentioned in the original suit.
4. None present for the plaintiff. Heard learned Counsel for the respondent and perused the Civil Revision Application, the application of the plaintiff for amendment of the plaint with the help of the learned Counsel for the respondent and the impugned order, the translation of which has been supplied to this Court.
5. The learned trial Court has not taken into consideration the fact that this application for the proposed amendment has been filed at a very initial stage of the suit. As noticed earlier the suit has been filed by the plaintiff on 21-2-1998 and this application is filed on 2-3-1998. So within few days of filing of the suit this application has been filed. It is not out of the context to state here that originally the plaintiff in the suit could have taken this plea also. A different cause of action could have been pleaded in the original suit. The plaintiff could have pleaded and prayed for alternative reliefs. The normal rule in the matter of the grant of the permission for amendment of the plaint is that the Court should not permit a cause of action by amendment which by the lapse of time become barred by limitation. The another rule is that it may not cause injustice to the other side. The Order 6 Rule 17 of the C.P.C. provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The provisions for the amendment of the pleading subject to such terms as to cost and giving opportunity to all the parties concerned to meet the exact situation resulting from the amendments for promoting the ends of justice and not for defeating them. It is no more res integra that the Court has power to allow the parties to amend their pleadings at any stage of proceedings. The Court should be extremely liberal in granting prayer for amendment of the pleadings unless serious injustice or irreparable loss cause to the other side. The reference in this respect may have to the decision of the Apex Court in the case of Haridas Aildas Thadani v. Godrej Rostam Kermani AIR 1983 SC 219. At the stage of considering the application for grant of permission to amend the plaint, the Court is not expected to consider the merits of the proposed amendment. The reason is very obvious as Rule 17 Order 6 confers a vide discretion upon the Courts to allow the amendment of pleadings at any stage of the proceedings. The learned trial Court has not considered it as an important aspect that substantially the cause of action has not been changed nor any new case has been made out. The dispute between the parties remains to be that the doors and windows which are there is the portion of the plaintiff's property and the action of the defendant to make an attempt to close the same. By this amendment the plaintiff has come up with the case and it may be an alternate case or even taken to be inconsistent that because of some understanding they left out more land on ground floor with defendant and to compensate the difference the defendant has agreed not to raise construction on the first floor covering the area exceeding 40%. By this proposed amendment the plaintiff is not changing the cause of action. The cause of action remains to be same. But by this proposed amendment, he is pleading an alternate case on the basis of which otherwise also the defendant cannot raise the construction by which reducing the width to be kept open from 8 feet to 4 feet. It is also not a new case but only an additional ground for claiming the relief. Additional ground in respect of the cause of action already pleaded. The provisions for the amendment of the pleadings subject to the terms as to cost and giving all parties concerned necessary opportunities to meet exact situation resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its Counsel inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs to the inconvenience or expenses caused to the other side from its omission. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. It is true where the plaintiff seeks to alter the cause of action itself and to introduce entirely indirectly through an amendment of his pleadings, an entirely new or inconsistent cause of action amending virtually to the substitution of a new plaint or new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which have accrued in its favour due to lapse of time. It is only a lapse of time has barred the remedy on a newly constituted cause of action that the Courts should ordinarily refuse the prayer for amendment of the pleadings. The reference in this respect may have to the decision of Apex Court in the case of Ms. Ganesh Trading Company v. Mojiram . The provisions relating to the pleadings is a procedural law. The procedural law is intended to facilitate and not to obstruct the course of substantive justice. The provisions relating to pleadings in the civil cases are meant to give each side intimation of the case of other, so that it may be met, to enable Courts to determine what is readily at issue between the parties and to prevent deviations from the course which litigation on particular causes of action must take. In the case of Jay Jay Ram Manoharlal v. National Building Material the Apex Court while dealing with the provisions of Order 6 Rule 17 of C.P.C. observed at page 1269 as under:
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, he has caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
6. This amendment has been proposed to be made at the initial stage of the suit. Even the state of framing of the issues in suit has not been reached. I fail to see how this amendment if is permitted would have caused any injustice or deprival of accrued right to the defendant-respondent. It is also difficult to appreciate how it will amount to change of the cause of action. At this stage of the proceedings at the most in this case for getting the same relief as prayed in the plaint the plaintiff wants to plead an inconsistent pleadings in the case. Earlier it was a case of claiming relief on the basis of easementary rights but now by this amendment the plaintiff is claiming the same relief though with different approach that some understanding between the parties regarding raising of the construction in the first and second floor by the defendant. I fail to see how the nature of suit will change by this proposed amendment.
7. In the case of G. Mangamma v. Siro Manamma the Apex Court has held that the plaintiff is entitled to plead even inconsistent pleas. It is permissible to the plaintiff to seek alternative reliefs. In view of this settled proposition of law the amendment as proposed by the plaintiff in the suit should not have been declined by the learned trial Court. It is at the most a case of raising of inconsistent pleas and seeking alternate reliefs. By this amendment neither the cause of action changes nor the relief can be materially effected. The reference may have to a decision of the Apex Court in the case of Radhika Devi v. Bajrangi Singh where the amendment has not been granted by the Court as the cause of action sought to be pleaded has become barred by limitation. In this case, at the cost of repetition, it is to state that the amendment has been sought by the plaintiff at the initial stage of the suit and it is not the case of defendant nor it is a finding of the Court below that the so-called cause of action or new cause of action or new case sought to be made by the plaintiff has become barred by limitation. The order of the learned trial Court has clearly fell under Clause (c) of Sub-section (1) of the Section 115 of Code of Civil Procedure. It is a case where error committed by the trial Court clearly relates to the breach of the provisions of Order 6 Rule 17 of Code of Civil Procedure as well as to material defects of procedure affecting the ultimate decision. In case this order impugned in this Civil Revision Application is allowed to stand, it will certainly occasion failure of justice and will cause injury to the plaintiff. The matter relates to the dispute between two brothers and the proposed amendment is necessary for the purpose of determining the real questions in controversy between them. By denial of this amendment the plaintiff will be deprived of consideration of this case in the matter.
8. In the result, this Civil Revision Application succeeds and the same is allowed. The order dated 3-8-1998 of 7th Joint Civil Judge (S.D.), Vadodara below Ex. 17 in the Regular Civil Suit No. 227 of 1998 is set aside and the application of the plaintiff Ex. 17 for amendment of the plaint is allowed. The plaintiff is directed to pay Rs. 1,000/- as a costs of allowing of this amendment in plaint to the defendant. In case the costs of Rs. 1,000/- is not paid the application-Ex. 17 and this Civil Revision Application shall stand dismissed automatically without reference to this Court. Parties to bear their own costs of this Civil Revision Application.