Punjab-Haryana High Court
Revision vs Baldev Raj; on 28 July, 2009
Civil Revision No. 616 of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 616 of 2003
Date of Decision: 28.07.2009
Harbhajan Nath son of Sh. Devi Dayal son of Sh. Ganesh Dass,
r/o N-169, Panchsheel Park, New Delhi.
... Revision-Petitioner
Versus
1. Baldev Raj;
2. Ramesh Chand;
3. Kewal Krishan;
4. Surinder;
5. Krishan;
sons of Sh. Gurbachan Lal son of Sh. Nand Lal;
6. Gurbachan Lal son of Sh. Nand Lal, r/o village Malikpur, Tehsil
Pehowa District Kurukshetra.
...Respondents
7. Smt. Atar Kaur wd/o Sh. Devi Dayal son of Sh. Ganesh Dass,
deceased, now represented by Parveen Sharma, wife of Dr. Ram
Sharma, r/o Delhi.
...Proforma-Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Raj Mohan Singh, Advocate,
for the revision-petitioner.
Mr. Ashish Gupta, Advocate,
for the respondents No. 1 to 6.
Respondent No. 7, proforma-respondent.
SHAM SUNDER, J.
**** This revision-petition is directed, against the order dated Civil Revision No. 616 of 2003 2 05.02.2003, rendered by the Court of District Judge, Kurukshetra, vide which, it allowed the application, under Order 6, Rule 17 of the Code of Civil Procedure, for the amendment of plaint, during the pendency of appeal.
2. The plaintiff claimed that the defendants agreed to sell 91 kanals of land, in his favour, vide the agreement to sell. However, in the plaint instead of mentioning 56 kanals of land 56/91 share out of 86 kanals - 11 marlas of land of defendant No. 1 and instead of 35 kanals of land 35/91 share out of land measuring 50 kanals - 8 marlas of land of defendant No. 2, were typed. It was stated that the error which cropped up, in the plaint, was only clerical. It was stated that the amendment, was essential for the just decision of the case. Accordingly, the application under Order 6, Rule 17 of the Code of Civil Procedure, was filed for the amendment of plaint by the plaintiff/applicant, at the appellate stage.
3. The application was contested by the defendant/appellant. It was stated that, in case, the amendment, was allowed, that would change the entire nature of the suit. It was further stated that, on account of the averments, in the plaint, the plaintiff, was only granted relief of 56/91 share, out of land measuring out of 86 kanals - 11 marlas of land, and 35/91 share, out of 50 kanals - 8 marlas of land, instead of 91 kanals of land, by the trial Court. It was further stated that the amendment would cause prejudice to the defendant/appellant.
4. After hearing the Counsel for the parties, the Appellate Court, accepted the application, and allowed the amendment of plaint.
5. Feeling aggrieved, the instant Revision Petition, has been filed by the revision-petitioner.
Civil Revision No. 616 of 2003 3
6. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.
7. The Counsel for the revision-petitioner, submitted that in the agreement, no doubt 91 kanals of land, was written, which was allegedly agreed to be sold, but the identification and details of the said land, were not given. It was further submitted that the agreement was totally vague. It was further submitted that, by way of amendment, an attempt, had been made, to show that 56/91 share was equivalent to 56 kanals and 35/91 share was equivalent to 35 kanals. It was further submitted that the claim made by the plaintiff, by way of amendment, was barred by time.
8. On the other hand, the Counsel for the respondent, submitted that the total land, which was agreed to be sold, in favour of the plaintiff, was mentioned as 91 kanals, in the agreement to sell. He further submitted that the agreement was not at all vague. He further submitted that, on account of clerical mistake, instead of 56 kanals and 35 kanals of land 56/91 shares and 35/91 shares, out of the land, agreed to be sold,were mentioned. He further submitted that the plaintiff, could not be made to suffer for the clerical mistake. He further submitted that the total land, which was agreed to be sold, even after the amendment of plaint, was to remain the same, and no prejudice, whatsoever, was to be caused to the defendant/appellant, on account of the amendment.
9. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the revision-petition, is liable to be dismissed, for the reasons to be recorded, hereinafter. The law, with regard to the amendment of pleadings, is very liberal, as the amended provisions of Order 6, Rule 17 of the Code of Civil Revision No. 616 of 2003 4 Civil Procedure, were not applicable, to the case, in hand, as the suit, was filed as far back as on 04.01.90. In my opinion, the Appellate Court, was right, in holding that the land, which was agreed to be sold, in favour of the plaintiff, would remain the same, but it was only, on account of clerical mistake, that instead of mentioning 56 kanals and 35 kanals of land, 56/91 shares and 35/91 shares, were mentioned. The Appellate Court was also right in holding that no prejudice, whatsoever, would be caused to the defendant, in case, the amendment was allowed. The amendment was also essential for the just decision of the case. The procedure is, in the ultimate, the handmaid of justice, meant to advance its cause, than to thwart the same. When the substantial justice and the procedural wrangles, are pitted against each other, then the former will prevail over the latter. In Jai Jai Ram Manohar Lal v. National Building Material Supply, AIR 1969, SC, 1267, it was held 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 the procedure. The Court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting malafide, or that by this blunder, he had 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."
Relying on this judgment, the Apex Court in M/s Ganesh Trading Co. V. Moji Ram, AIR 1978 (SC) 484, observed as under:
"Procedural law is intended to facilitate and not to obstruct the course of substactive justice. Provisions relating to pleadings in civil cases Civil Revision No. 616 of 2003 5 are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent deviations from the course which litigation of particular causes of action must take."
Following the dictum of Supreme Court, this Court, in case Sardar Hari Bachan Singh v. Maj. Harbhajan Singh, (1975) 77 PLR. 21, observed as under:-
"It is well settled law that, however, negligent or careless may have been the fist omission and, however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by way of costs. A plaintiff may add as new cause of action and the defendant may add a new defence. Even a new case may be allowed to be introduced. The court has to take into consideration even subsequent events. A further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided. Where therefore, the plaintiff sought the permission merely to add a prayer for possession which did not after the cause of action or change the essential nature of the suit, and the effect of the refusal of the amendment would have been to drive the plaintiff to fresh suit, the amendment should be allowed"
10. In Baburao v. Maharashtra Insecticides Limited and others 2004(2) Civil Court Cases 473 (Bombay), it was held that the amendment could be allowed, at any stage, and even when the case is reserved for judgment. In view of the principle of law, laid down, in the aforesaid cases, in my opinion the Appellate Court, was fully justified, in allowing the application under Order 6, Rule 17 of the Code of Civil Procedure, filed by the plaintiff/respondent. The order impugned does not suffer from illegality, material irregularity or perversity, warranting the interference of this Court, in its revisional jurisdiction. The submission of the Counsel for the revision- Civil Revision No. 616 of 2003 6 petitioner, being without substance, is rejected.
11. For the reasons recorded above, the revision-petition, being devoid of merit, is dismissed.
28.07.2009 (SHAM SUNDER) Amodh JUDGE