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Smt. Shyam Dulari Vs. Bhagwan Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 282 of 1974
Judge
Reported inAIR1979All192
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantSmt. Shyam Dulari
RespondentBhagwan Das and ors.
Appellant AdvocateG.P. Mathur, Adv.
Respondent AdvocateM.P. Sinha, Adv.
DispositionRevision allowed
Excerpt:
civil - amendment in pleadings - order 6 rule 17 of code of civil procedure,1908 - addition of relief of possession pleaded to be included in the plaint - such addition will not alter the nature of suit - held, such amendment in appellate stage can be allowed. - - 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 cases......instant case is whether if a relief of possession in the alternative had not been claimed in the suit the plaintiff could be allowed to incorporate the same by means of an amendment at the appellate stage. in maruit v. ranganath (air 1955 hyd 1) (fb) it was held by a full bench of that court that in a suit for mere declaration and injunction a relief for possession in the alternative could be claimed by; means of an amendment of the plaint. see also smt. batni v. tej singh (air 1966 him pra 1). rules regarding amendments of pleadings have been laid down bythe supreme court in a series of decisions and it has been held that normally amendment in the pleadings should be allowed unless it causes any injustice to the other side. in jai jai rama manohar lal v. national building material.....
Judgment:
ORDER

Gopi Nath, J.

1. This is a plaintiff's application in revision against an order passed by the Civil judge, Basti, dated 15-11-1973, refusing to allow the plaintiff to amend her plaint at the appellate stage. The plaintiff filed a suit for cancellation of a sale-deed alleged to have been executed in favour of the contesting defendant-opposite parties on the allegation that she had already obtained a registered sale-deed in her favour from the vendor and the sale-deed in favour of the contesting opposite parties was collusive and ineffective in law. The plaintiff alleged herself to be in possession of the land in dispute. The defendants contested the suit and inter alia pleaded that besides the sale-deed in their favour being valid the plaintiff was out of possession and the suit for mere cancellation was not maintainable. The trial court dismissed the suit. On appeal the plaintiff applied for the amendment of the plaint praying for a relief of possession in the alternative to be added in the relief clause. This amendment was refused by the appellate court on the ground that the same could not be granted at the appellate stage. Aggrieved by that order the plaintiff has filed this revision and it is contended on her behalf that by the addition of the relief of possession in the alternative in the plaint neither the nature of the suit was changed 'nor was there any introduction of new cause of action and the defendants could be compensated by costs and the amendment should have been allowed.

2. Learned counsel for the opposite parties contended that by the addition of the relief of possession the nature of the suit would be changed and the defendant's right would be effected. It was further pleaded that since the defendants had already 'obtained a decree in then favour the application could not be allowed at the appellate stage. Reliance was placed on behalf of the opposite parties on Mahmood Khan v. Ayub Khan (AIR 1978 All 463) where it was held that if the neeessary allegations, as required by Section 16-C of the Specific Relief Act were not initially made in the plaint they could not be allowed to be incorporated by means of amendment at the second appellate stage because that would amount to changing the cause of action. That case, to my mind, has no application in the instant case. The short question in the instant case is whether if a relief of possession in the alternative had not been claimed in the suit the plaintiff could be allowed to incorporate the same by means of an amendment at the appellate stage. In Maruit v. Ranganath (AIR 1955 Hyd 1) (FB) it was held by a Full Bench of that court that in a suit for mere declaration and injunction a relief for possession in the alternative could be claimed by; means of an amendment of the plaint. See also Smt. Batni v. Tej Singh (AIR 1966 Him Pra 1). Rules regarding amendments of pleadings have been laid down bythe Supreme Court in a series of decisions and it has been held that normally amendment in the pleadings should be allowed unless it causes any injustice to the other side. In Jai Jai Rama Manohar Lal v. National Building Material Supply Gurgaon (AIR 1969 SC 1267) the Supreme Court held as follows (at p. 1269):

'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 give 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 cases. 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.'

In M/s. Ganesh Trading Co. v. Moji Ram (AIR 1978 SC 484) it was held that (at p. 486):

'Provisions for the amendment of pleadings subject to such terms as to costs and giving of 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 shortcomings 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 omission. .. procedural law is intended to facilitate and not to obstruct tile course of substantive justice. Provisions relating to pleadings in civil cases 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 parties and to prevent deviations from the course which litigation on particular causes of action must take.'

3. It will be apparent that amendment of pleadings are normally to be allowed unless they cause injustice to the other side. In the instant case the plaintiff only sought the amendment of a relief for possession in the alternative in the suit. According to the necessary allegations already existed in the plaint and the omission by inadvertence. This amendment, to our mind, was not of such a nature as to amountto changing the nature of the suit. Consequently it should have been allowed. The objection to its being allowed at the appellate stage, to our mind, has no force as it is fairly settled that amendment of pleadings can be allowed at any stage.

4. The revision accordingly succeeds and is allowed. The order of the court below dated 15-11-1973 is set aside and the application for amendment is allowed. The case is remanded to the appellate court for deciding the appeal according to law. In the circumstances of the case the parties shall bear their own costs.


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