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Kalyanee and anr. Vs. Dr. Bhabani Charan Banerjee and ors. - Court Judgment

LegalCrystal Citation
Subject;Tenancy;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 174 of 1984
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantKalyanee and anr.
RespondentDr. Bhabani Charan Banerjee and ors.
Appellant AdvocateB.R. Dey and J. Deb, Advs.
Respondent AdvocateN. Chakravarty, Adv.
DispositionPetition rejected
Excerpt:
- - his services were terminated during the pendency of the suit but he did not challenge the order of dismissal by seeking amendment of his plaint to include a relief against the order of dismissal as well. 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 had caused injury to his opponent which may not be compensated for by an order of costs......the measurement of the area in question has been shown as above as also in the schedule. the plaintiff sought the amendment of the plaint by stating that the area in question in fact measures 56' x 24' and not 56' x 24'. he,therefore, sought the necessary amendment to be made in paragraphs 1, 2, 3 and schedule of the plaint. the application, it appears, was vehemently opposed by the defendants before the learned district judge on the ground that by the amendment sought for the plaintiff wants to introduce a new cause of action, that it will change the character of the suit, that the defendants would be greatly prejudiced in the sense that the plaintiff had originally asked for eviction of the defendants from a part of the premises and not the whole which, according to the.....
Judgment:

T.S. Mishra, C.J.

1. This revision petition under Section 115 of the Code of Civil Procedure is directed against an order dated 22nd May, 1984 passed by the District Judge, Kamrup, Gauhati in Title Appeal No. 11 of 1983 allowing the prayer of the Respondent No. 1 to amend the plaint.

2. The plaintiff, who is the Respondent No. 1 before me has filed a title suit No. 93 of 1971 in the court of the Assistant District Judge No. 1 at Gauhati seeking eviction of the defendants from the premises described in schedule 'A' appended to the plaint. The case has been resisted by the defendants on a variety of grounds and it appears that during the last 13 years the parties to the suit have reached this Court as also the Supreme Court in connection with this suit. That is how the suit has not so far been disposed of in the sense that the dispute is still being examined by the learned District Judge in an appeal arising out of the suit. But before the appeal could be disposed of finally an application for amendment of the plaint was filed by the plaintiff before the District Judge who allowed it. The defendants 1 & 3 have come up to this Court seeking revision of the order passed by the District Judge on the amendment application. So the appeal remains where it is and the matter is again brought to this Court.

3. From a copy of the plaint (produced before me by the learned counsel for the petitioners) it appears that the plaintiff has claimed to be the absolute owner of the building and the tin-roofed house within the area measuring 56' x 23' later on increased to an area of 56' x 24' of the holding described in Schedule 'A' appended at the foot of the plaint. Similarly in paragraphs 2 and 3 of the plaint the measurement of the area in question has been shown as above as also in the schedule. The plaintiff sought the amendment of the plaint by stating that the area in question in fact measures 56' x 24' and not 56' x 24'. He,

therefore, sought the necessary amendment to be made in paragraphs 1, 2, 3 and schedule of the plaint. The application, it appears, was vehemently opposed by the defendants before the learned District Judge on the ground that by the amendment sought for the plaintiff wants to introduce a new cause of action, that it will change the character of the suit, that the defendants would be greatly prejudiced in the sense that the plaintiff had originally asked for eviction of the defendants from a part of the premises and not the whole which, according to the defendants, the plaintiff is not entitled to and that at any rate, the application for amendment is highly belated. The learned District Judge did not find any merits in either of these contentions and therefore allowed the application for amendment of the plaint. The defendants being aggrieved have approached this Court in revision and have reiterated the submissions made before the learned District Judge.

The learned Counsel for the defendants in support of his submission has placed reliance on a decision of the Supreme Court in Tharayil Sarada v. Govindan (1983) 2 SCC 276, wherein it was pointed out that if the plaint is allowed to be amended, the defendants should be given an opportunity to file an additional written statement. The learned counsel submitted that the Court below while allowing the application for amendment has not given any opportunity to the defendants to file an additional written statement. He also referred me to a recent decision of the Supreme Court in S. Kumar v. Institute of Constitutional and Parliamentary Studies AIR 1984 SC 59. In that case the original reliefs claimed in the suit consisted of a decree of declaration. The plaintiff was an employee of a society. His services were terminated during the pendency of the suit but he did not challenge the order of dismissal by seeking amendment of his plaint to include a relief against the order of dismissal as well. He filed an application for amendment of the plaint before the Supreme Court shortly before concluding his submission there. The application was rejected by the Supreme Court. The learned counsel for the revisionist submitted that as the amendment of the plaint was not sought for by the plaintiff during the last 13 years, he should not have been allowed to amend his plaint in the same way as was done by the Supreme Court in S. Kumar's case (supra).

4. The learned counsel for the plaintiff-respondent who has filed a caveat, submitted that by the amendment a clerical error was sought to be rectified, no knew cause of action was being introduced and the nature and character of the suit were not at all changed. The plaintiff did not deliberately delay the matter. In fact he had approached the Court for redress in 1971 but for one reason or the other, the matter has not yet reached its finality for which, the submission of the plaintiff was that he was not responsible.

5. Rule 17 of Order 6 of the Code of Civil Procedure enables the parties to seek amendment of his pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The amendment may be allowed as may be necessary for the purpose of determining the real question of controversy between the parties.

6. It is quite manifest that the provisions for the amendment of pleadings, subject to such terms as to costs and giving all parties concerned necessary opportunities to meet exact situations resulting from amendments, ' are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is 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 for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. (See AIR 1978 SC 484).

7. Of course, by the amendment of the pleadings a party cannot be permitted to introduce a new cause of action. It would, however, be allowed if that is required in the interest of justice; and as was pointed out by the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363, all amendments ought to be allowed which satisfy the two conditions : (i) of not working injustice to the other side, and (ii) of being necessary for the purpose of determining the real questions in 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. :

8. In AIR 1957 SC 357, L. J. Leach and Co. Ltd. v. Jardine Skinner and Co. it was pointed out that 'a different or additional approach to the same facts' could be allowed by amendment even after the expiry of the statutory period of limitation. It further laid down that the object of the rules of procedure is to decide the rights of the parties and not to punish them for their mistakes or short-coming. It also said that no question of limitation, strictly speaking, arose in such cases because what was sought to be brought in was merely a clarification of what was already there. At page 98 of the report, the Supreme Court pointed out that the expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as it was said in Cooke v. Gill (1873) 8 CP 107 (116), in a different context for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. That is why the Supreme Court in Ganesh Trading Co. (AIR 1978 SC 484) (supra) laid down that no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.

9. Reversing the hypertecbnical view the Supreme Court had said in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267:

'Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused that 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 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.'

10. Let me examine the matter of the instant case in the light of the principles enunciated hereinabove. I have already pointed out that the plaintiff has sought eviction of the defendants from a premises detailed and described in the plaint and more particularly in the schedule thereof. In paragraphs 1, 2, 3 and the schedule, it has been said that the defendants be evicted from a house. The area of the land covered by the house was shown as 56' x 24'. This is the measurement given in the paragraphs 1, 2, 3 and the schedule of the plaint. The plaintiff has stated in his application for amendment that due to typographical mistake the area has been shown as 56' x 24' whereas, in fact it is 56' x 24', The Court below has allowed the amendment, the mistake having been found to be only typographical. No doubt, the mistake has been sought to be rectified after the expiry of a period of about 13 years. But that by itself would not be sufficient to reject the application for amendment, if the amendment was necessary to be made to meet the ends of justice, and if no prejudice in any manner is caused to the defendant. The Court below has said that the defendants would not be prejudiced in any manner whatsoever.

The learned counsel for the petitioner, however, submitted that in view of the definition given of the word 'house' in Section 2(b) of the Assam Urban Areas Rent Control Act, the defendant would be prejudiced in the sense that initially the plaintiff had asked for eviction from an area of 56' x 24' and now he would be seeking eviction from an area of 56' x 24'. I do not want to make any comments on the merits of this plea because the defendants are said to have taken up the plea of splitting up tenancy in the written statement and the issue with respect to the same would have to be decided by the court below. Suffice it to say that the defendants by the amendment sought for by the plaintiff would not be prejudiced. The learned counsel for the defendant-petitioner was, however, right in pointing out that the Court below should have given an opportunity to the defendants to file an additional written statement and should have allowed costs. It is, however, equally true that defective pleadings

are generally curable if the cause of action is not totally changed and only a mistake is sought to be rectified. The procedural law as contained in Rule 17 of Order 6 of Code of Civil Procedure, is meant to advance the cause of justice. In my view the court below was justified in allowing the amendment application.

11. In the result, the impugned order is maintained. But the defendants are allowed one month's time to file their additional written statement. The appellate Court below shall fix a date of hearing of the appeal thereafter. The contesting defendants shall also be paid Rs. 100/- as costs in the Court below with respect to the amendment application with these observations and directions the revision petition is rejected.


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