Allahabad High Court
Shiv Pujan Maurya And 4 Others vs Bharat Lal And 3 Others on 20 March, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ? Neutral Citation No. - 2024:AHC-LKO:24395 Court No. - 7 Case :- MATTERS UNDER ARTICLE 227 No. - 1404 of 2024 Petitioner :- Shiv Pujan Maurya And 4 Others Respondent :- Bharat Lal And 3 Others Counsel for Petitioner :- Shailesh Kumar Pathak,Anju Tripathi Counsel for Respondent :- Rakesh Kumar Modanwal Hon'ble Saurabh Lavania,J.
Heard Sri Shailesh Kumar Pathak, learned counsel for the petitioners and Sri Rakesh Kumar Modanwal, learned counsel appearing for the caveator/respondent Nos. 1/Bharat Lal & 2/Kishan Lal.
By means of this petition, the petitioners have challenged the order dated 07.02.2023 passed by respondent No. 4/Additional Civil Judge, (J.D.), Court No. 16, District- Pratapgarh, on an application preferred by the petitioners under Order 6 Rule 17 of the Code of Civil Procedure (in short "CPC") numbered as Paper No. 111Ga2 filed in a suit of perpetual injunction filed by Ram Shankar (predecessor in interest of the petitioner Nos. 1/1 to 1/4 and Sri Shiv Mandal/petitioner No. 2) registered as Regular Suit No. 733/1997 (Ram Shankar and others vs. Ram Naresh and others) and the order dated 18.01.2024 passed by the respondent No. 3/Additional District Judge, Court No. 02, District- Pratapgarh in Civil Revision No. 24/2023 (Ram Shankar through LRs and another vs. Ram Naresh through LRs).
By the order impugned dated 07.02.2023, the trial court rejected the application numbered as Paper No. 111Ga2. The relevant portion of the order dated 07.02.2023 is extracted hereunder:-
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The revisional court vide impugned order dated 18.01.2024 dismissed the revision instituted by the petitioners and affirmed the order dated 07.02.2023 passed by the trial court/respondent No. 4. The relevant portion of the order dated 18.01.2024 is extracted hereunder:-
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Impeaching the impugned orders dated 07.02.2023 and 18.01.2024, learned counsel for the petitioners submitted that initially the aforesaid suit was instituted seeking decree of perpetual injunction against Ram Naresh, who died during pendency of suit and thereafter, his sons namely Bharat Lal and Kishan Lal, who are private respondent Nos. 1 & 2 in this petition, were substituted and during pendency of the suit, the legal heirs of original defendant namely Ram Naresh executed an agreement to sale dated 20.05.2022 and on coming to know about the same, an application under Order 6 Rule 17 CPC was preferred thereby praying to amend the plaint including the relief clause as also impleading the persons in whose favour the agreement to sale was executed by the private respondents, namely Ram Achal Verma s/o Ram Kumar Verma and Ramdendra Nath Mishra s/o late Nanlal Mishra, which was rejected vide impugned order dated 07.02.2023 affirmed vide order dated 18.01.2024.
He further submitted that rejection of the application seeking amendment numbered as Paper No. 111Ga2 is not in consonance with the law on the issue as in view of the explanation under Order 6 Rule 17 CPC, application seeking amendment ought to have been allowed in spite of the fact that trial proceeded in the matter for the reason that the fact regarding execution of agreement to sale came in the knowledge of the petitioners after commencement of trial. Prayer is to interfere in the matter allow this petition.
Learned counsel appearing for the side opposite submitted that the impugned orders dated 07.02.2023 and 18.01.2024 passed by trial court and revisional court, respectively, are not liable to be interfered with by this Court and the present petition is liable to be dismissed. He submitted as under:-
(i) The nature of suit in issue would be changed.
(ii) The petitioners have no right or tile over the property in issue.
(iii) The agreement to sale in issue is without possession, as such, the right remains with the defendants to the suit and second parties to agreement are neither necessary nor proper party.
(iv) The law with regard to impleading transferee pendente lite is settled and as per which, second parties (purchaser(s)) in the agreement to sale are not liable to be impleaded and the court concerned is having discretion to permit impleadment of transferee pendente lite and as such, the composite application seeking amendment in the plaint and impleadment of second parties to the agreement has rightly been rejected by the court concerned.
Considered the submissions advanced by the learned counsel for the parties as also the impugned orders dated 07.02.2023 and 18.01.2024, relevant portion(s) of which are quoted above, and before proceeding on the merits of the case, this Court finds it appropriate to refer the view of the Hon'ble Apex Court on the issue of dealing with the application for amendment.
The relevant para of the judgment passed by Hon'ble Apex Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another reported in 2022 SCC OnLine SC 1128 reads as under:-
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)"
In view of the aforesaid principles settled by the Hon'ble Apex Court, this Court considers the present petition in the light of the facts of the case as also the observations made by the court(s) concerned in the impugned orders dated 07.02.2023 and 18.01.2024 and finds that the present petition has no force. It is for the following reasons:-
(i) The nature of suit in issue would be changed.
(ii) The petitioners have no right or tile over the property in issue.
(iii) The agreement to sale in issue is without possession, as such, the right remains with the defendants to the suit and second parties to agreement are neither necessary nor proper party.
(iv) The law with regard to impleading transferee pendente lite is settled and as per which, second parties (purchaser(s)) in the agreement to sale are not liable to be impleaded and the court concerned is having discretion to permit impleadment of transferee pendente lite and as such, the composite application seeking amendment in the plaint and impleadment of second parties (purchaser(s)) in the agreement.
For the foregoing reasons, the petition is dismissed.
Order Date :- 20.3.2024 Arun/-