Himachal Pradesh High Court
State Of Hp & Anr vs Saunu Ram & Ors on 9 October, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 184 of 2015 Date of decision: 09. 10.2015.
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State of HP & anr ...Petitioners
Versus
Saunu Ram & ors ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes. For the Petitioners: Mr. V.K. Verma, Mr.Meenakshi of Sharma, Addl. AGs, with Ms.Parul Negi, Dy. AG For the Respondents: Mr. Amit Singh Chandel, Advocate rt Tarlok Singh Chauhan J, This Petition under Section 115 of the Code of Civil Procedure is directed against the order passed by learned trial court whereby the application filed by the respondents for amendment of the plaint has been ordered to be allowed.
2. It is not in dispute that the suit initially filed by the respondents/plaintiffs was for permanent prohibitory injunction, but thereafter, an application under order 6 Rule 17 CPC was filed incorporating the relief of possession. The learned Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 2trial court allowed the application by recording the following reasons:
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"6. The suit filed by the applicants/plaintiffs is for permanent injunction and mandatory injunction. During the pendency of the suit, the applicants/ plaintiffs intend to amend the plaint to recover the possession. Though, it has not been stated in the application that the respondents/defendants have of possessed the suit and during the pendency of the suit, but from the contents of the application, it rt appears that the respondents/defendants have possessed the suit land during the pendency of the suit and now, the applicants/plaintiffs intend to recover the possession on the basis of title. In case the present application is allowed, the respondents/defendants shall not be prejudiced, as they have right to cross-examine the PWs. The amendment sought appears to be necessary for determining the real controversy between the parties. When the applicants/ plaintiffs have filed a suit for injunction and thereafter intend to amend the pleadings by claiming right of possession neither will change the nature of the suit land nor this claim could be raised by the applicant/plaintiff despite due diligence. Accordingly, the present application is allowed subject to cost of Rs.500/-. Application stands disposed of."::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 3
I have heard the learned counsel for the parties and have gone through the records of the case.
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3. It is more than settled that the relief of injunction proceeds on the premises that the person claiming such relief is in possession of the property. Now, the question arises as to whether in a suit for injunction, possession can be claimed or of not? This question has been considered by the Hon'ble Supreme Court in Anathula Sudhakar Vs. Buchi Reddy (Dead) by L.Rs rt & ors, AIR 2008 SC 2033 wherein it was held:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 4
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer .
for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will of not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings rt and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the ::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 5 issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for .
injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its of discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, rt depending upon the facts of the case".
4. It would be evident from para (b) supra that injunction simpliciter is concerned only with possession and this question has to be decided with reference to the finding on possession.
5. It is thus clear that possession alone is material in a suit for injunction. Now, in case the plaintiffs/respondents were in possession, then when and how they came to be dispossessed is not forthcoming. The application for amendment on this aspect is conspicuously silent. Therefore, either of the claims set up by the respondents are false for the simple reason that in ::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 6 case respondents were in possession of the property, then alone they could have sought injunction and similarly in case they .
were out of possession, then the main relief in such a case would be for possession. But in no event can both the reliefs which are self contradictory to each other be claimed.
6. Adverting to the original suit, it would be noticed that of the same was for permanent prohibitory injunction restraining the defendants/petitioners from causing interference in the rt peaceful possession of the plaintiff. It is not the case that it was during the pendency of the suit that they had been dispossessed from the suit land. Therefore, in such circumstances, I fail to understand as where from did the learned trial court infer that the respondents have been dispossessed during the pendency of the suit because had it been so, then it was incumbent upon the respondents to have made necessary averments to this effect.
7. Learned counsel for the respondents has sought to justify the order passed by the learned trial court by relying upon the following observations made in para-3 by learned Single Judge of Andhra Pradesh High Court in Adusumilli ::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 7 Venkateswar Rao & anr Vs Chalasani Hymavathi, AIR 1990 AP 161, which reads thus:
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"3.In my opinion, both the contentions are untenable. It has been held in a number of cases by various High Courts, including our High Court that a suit for injunction can be converted into a suit for possession and that such conversion does not amount to alteration of the nature of the suit. It is of surprising that in spite of the settled law (See K. Kameswara Rao v. K. Rajyalakshmi, 1970(1) APLJ rt 309) in this behalf in all the High Courts, still the same points are being raised in the Lower Courts."
Learned counsel for the respondents has also placed reliance on the following observations made by the Hon'ble Supreme Court in Mount Mary Enterprises Vs. Jivratna Medi Treat Private Limited, (2015) 4 SCC 182.
"7. In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for ::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 8 specific performance and initially the property had been valued at Rs.13,50,000/- but as the market value of the property was actually Rs.1,20,00,000/-, .
the appellant-plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.
8. It is also pertinent to note that the defendant had made an averment in para 30 of the written statement filed in Suit No.1955 of 2010 that the of plaintiff had undervalued the subject matter of the suit. It had been further submitted in the written statement that the market value of the suit property rt was much higher than Rs. 14 lacs. The defendant had paid Rs.13.5 lacs for the said premises in the year 2002 when the said premises had been occupied by a tenant bank. Even according to the defendant value of the suit property had been undervalued by the plaintiff in the plaint. If in pursuance of the averment made in the written statement the plaintiff wanted to amend the plaint so as to incorporate correct market value of the suit property, the defendant could not have objected to the amendment application whereby the plaintiff wanted to incorporate correct value of the suit property in the plaint by way of an amendment. The other contention that the valuation had already been settled cannot also be appreciated since the High ::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 9 Court has held that the said issue was yet to be decided by the trial Court.
9. The main reason assigned by the trial court for .
rejection of the amendment application was that upon enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected.
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10.With regard to amendment of plaint, the following observation has been made by this Court in the case rt of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by LRs. (2008) 8 SCC 511 :
"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others (1957) 1 SCR 595 which still holds the filed, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in ::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 10 controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the .
pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."
11. In our opinion, on the basis of the aforestated legal position, the amendment application made by the plaintiff should have been granted, especially in of view of the fact that it was admitted by the plaintiff that the suit property was initially undervalued in the rt plaint and by virtue of the amendment application, the plaintiff wanted to correct the error and wanted to place correct market value of the suit property in the plaint.
12. For the aforestated reasons, we are of the view that the amendment application should not have been rejected by the trial court and the High Court should not have confirmed the order of rejection. We, therefore, set aside the impugned judgment delivered by the High Court and the order dated 22nd November, 2013 of the trial court, whereby the amendment application had been rejected.
13 We allow the appeal and direct the trial court to permit the appellant-plaintiff to amend the plaint as prayed for in the amendment application so as to ::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 11 change valuation of the suit property. There is no order as to costs.
8. None of the cited judgments, in my opinion, are .
attracted to the facts of the present case. It is clear that the amendments sought for by the respondents makes out a totally new cause of action as well as a new case. The original plaint has been filed on the allegation that the respondents are in of possession and enjoyment of the property. If the recovery of possession is by way of an alternate relief, then probably, this rt court could not have any objection in ordering the amendment as the same would then be covered by the respondent in Adusumilli Venkateswar Rao (supra). But the respondents cannot under the garb of amendment introduce a totally new and an inconsistent case which changes the very nature of the case.
9. That apart, the learned court below has even failed to consider the proviso to order 6 Rule 17 CPC, which clearly lays down that no application for amendment can be allowed after the trial has commenced unless the court comes to the conclusion that inspite of due diligence the petitioner could not ::: Downloaded on - 15/04/2017 19:10:48 :::HCHP 12 have raised the matter before the commencement of the trial.
Not only are pleadings, but even findings to this effect are .
lacking.
10. For all the above stated reasons, the order passed by learned court below cannot be sustained and is accordingly set aside. The petitioner is allowed in the aforesaid terms, leaving of the parties to bear the costs.
rt (Tarlok Singh Chauhan),
Judge.
9th October, 2015
(sl)
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