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Ganpat Singh Vs. Sher Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 316 of 1970
Judge
Reported inAIR1978All66
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantGanpat Singh
RespondentSher Bahadur Singh and ors.
DispositionAppeal allowed
Excerpt:
.....of code of civil procedure, 1908 - findings of trial court - plaintiff owner of suit property but property in possession of defendant - defendant not perfected title by adverse possession - plaintiff at initial stage did not ask for ejectment of defendant and delivery of possession - plaintiff before appellate court moved amendment of plaint by adding relief of possession - amendment rejected as belated - plaintiff sought relief of possession in alternative - no bar for alternative relief - held, appellate court erred in rejecting amendment application. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted..........averments made by the plaintiffs and asserted that the plaintiffs were neither the owners of the property in question nor were they in possession thereof. they set up their own possession over the property. they also pleaded that they had perfected their title by remaining in adverse possession thereof. the trial court on a consideration of the evidence found that the plaintiffs were the owners of the property in question but found that they were not in possession. in view of the same, the trial court also repelled the contention of the defendants that they had perfected their title by adverse possession. on these findings, the suit was dismissed. 2. the plaintiff ganpat singh filedan appeal against that decision in thecourt of the district judge. the appealwas heard by ii temporary.....
Judgment:

T.S. Misra, J.

1. This appeal arises out of a suit filed by the appellant for declaration of his title with regard to the property in dispute and for permanent injunction to restrain the defendants from interfering with the possession of the plaintiffs. The plaintiffs claimed title to the property and maintained that they were in possession thereof. The defendants denied the averments made by the plaintiffs and asserted that the plaintiffs were neither the owners of the property in question nor were they in possession thereof. They set up their own possession over the property. They also pleaded that they had perfected their title by remaining in adverse possession thereof.

The trial court on a consideration of the evidence found that the plaintiffs were the owners of the property in question but found that they were not in possession. In view of the same, the trial court also repelled the contention of the defendants that they had perfected their title by adverse possession. On these findings, the suit was dismissed.

2. The plaintiff Ganpat Singh filedan appeal against that decision in thecourt of the District Judge. The appealwas heard by II Temporary Civil andSessions Judge, Pratapgarh who dismissed it. The plaintiff Ganpat Singh has nowcome to this Court on second appeal.

3. Before the appellate court below an application, 17 Ka was moved for amendment of the plaint. That application was opposed vide objection 18 Ka. The appellate court below has rejected that application on the ground that it was belated. The observation of the appellate court below in this behalf was in these terms:--

'This application has been moved in the year 1970 and the suit was filed in the year 1966. If it is allowed at this stage amendment will relate back to the date of suit and this may affect the question of limitation which may or may not be over by now. So this will deprive the defendants of valuable right. Hence I would not allow the amendment application at this stage.'

4. For the appellant it was urged that the appellate court below had erred in rejecting the application for amendment of the plaint. It was submitted that the trial court had held that the plaintiffs were the owners of the property in question. That being so, the appellant was entitled to recover possession of that property. It was further submitted that the appellate court below was itself not sure as to whether the limitation for seeking possession of the property had expired or not. Hence the observation of the appellate court below to the effect that if the amendment would be allowed, the defendants will be deprived of the valuable right was clear Untenable. I find force in the contention. Both the courts below have concurrently held that the plaintiffs were the owners of the property in question. True it is that the plaintiff's had not asked for ejectment of the defendants from the said property and for delivery of possession of the same at the initial stage of the suit. The defendants had no doubt asserted that they were in possession of the said property before the trial court. The plaintiffs, on the other hand, had contended that they were in possession of the property. On this basis it was submitted on behalf of the respondents before me that it was not a fit case where amendment of the plaint should have been allowed at the stage of the first appeal. The plaintiffs, as pointed out earlier, had asserted their title and their assertion in that behalf was found to be correct. The necessary consequence, therefore, was that if the plaintiffs were not in possession and the defendants were in possession without title, the plaintiffs could claim for delivery of possession of the property provided that relief was not barred by limitation or any other law. It is well settled that 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 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 bemade without injustice to the other side: See Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon (AIR 1969 SC 1267). The question of amendment of pleadings was considered by the Supreme Court in A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation (AIR 1967 SC 96) as well. It was laid down that in the matter of allowing amendment of pleading the general rule is that a party is not allowed by amendment to set up a new case or new cause of action particularly when a suit on the new cause of action is barred. Where however the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation. Applying these principles to the facts of the case, I am of the view that the appellate court below ought to have allowed the application for amendment. By the proposed amendment no new cause of action was being introduced nor could it be said that the application was mala fide. The question of title to the property as also the question of possession were involved in the suit right from the very beginning. The plaintiffs by the amendment sought for had intended to seek the relief of possession in the alternative. There is no bar in claiming a relief in the alternative. In these circumstances the appellate court below, in my view, had erred in rejecting the application. It may also be observed in passing that the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. See Smt. Ganga Bai v Vijai Kumar (1974) 2 SCC 393: (AIR 1974 SC 1126). For the reasons in the foregoing order rejecting the amendment application 17 Ka is set aside. The amendment application given by the plaintiff appellant is allowed in consequence the impugned decree passed by the learned II Temporary Civil and Sessions Judge, Pratapgarh has to be set aside and the case will have to be remanded.

5. The appeal is accordingly allowed and the decree passed by the appellate court below is set aside. The case is remanded to the appellate court below. The appellant shall amend the plaint within ten days from the date of this order and thereafter the defendants shallfile their additional written statement by 4th Nov., 1977. The additional written statement shall be filed by the defendants before the appellate court below by the aforesaid date. The appellate court below shall thereafter frame the necessary issues, if any, and the parties shall be at liberty to adduce additional evidence on the additional issue or issues so framed. The appellate court below shall re-hear the appeal and decide it in accordance with law on the basis of the evidence already on the record and such other evidence as may be produced hereinafter by the parties. It is, however, made clear that the finding with regard to the question of ownership shall not be disturbed. Similarly, the finding on the issue of adverse possession shall also not be disturbed. The parties shall bear their own costs in this court.

6. The record of the case shall be sent back to the appellate court below forthwith.


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