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Budhia Vs. Dhani Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 19 of 1954
Judge
Reported inAIR1956HP1
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantBudhia
RespondentDhani Ram and anr.
Appellant Advocate Thakar Das, Adv.
Respondent Advocate A.G. Sud, Adv.
Cases ReferredLakshmipathiraju v. Jagani Venkataswami
Excerpt:
- .....to be an appeal under order 43, rule 1(u), civil p. c., against an order of remand made by the learned district judge of mahasu under order 41, rule 23, read with section 151, civil p. c. for reasons stated in this court's order dated 19-5-1955, it was held that the present appeal was incompetent.consequently, at the request of the learned counsel for the appellant, the memorandum of appeal was treated as a revision petition and admitted on the point that the lower appellate court had exercised its jurisdiction with material irregularity in permitting the plaintiffs to amend the plaint, i.e. by adding a prayer for possession. 2. yesterday, i heard learned counsel for the parties. as i shall show presently, the petition cannot succeed. 3.mr. thakar das for the petitioner argued that,.....
Judgment:

Ramabhadran, J.C.

1. This purports to be an appeal under Order 43, Rule 1(u), Civil P. C., against an order of remand made by the learned District Judge of Mahasu under Order 41, Rule 23, read with Section 151, Civil P. C. For reasons stated in this Court's order dated 19-5-1955, it was held that the present appeal was incompetent.

Consequently, at the request of the learned counsel for the appellant, the memorandum of appeal was treated as a revision petition and admitted on the point that the lower appellate Court had exercised its jurisdiction with material irregularity in permitting the plaintiffs to amend the plaint, i.e. by adding a prayer for possession.

2. Yesterday, I heard learned counsel for the parties. As I shall show presently, the petition cannot succeed.

3.Mr. Thakar Das for the petitioner argued that, by permitting the amendment, the lower appellate Court had given the plaintiffs an opportunity to change the nature of the suit and the cause of action altogether. He urged that having found that the plaintiffs were out of possession and, therefore, no suit for injunction lay, the only order, which the District Judge could pass, was an order dismissing the suit.

Reliance was placed, in this connection, inter alia, on Mosque known as--Masjid Shahid Ganj v. Shromani Gurdwara Parbandhak Committee, Amritsar', AIR 1938 Lah 369 (A), where a Full Bench of the Lahore High Court held that:

'Where a suit is filed on behalf of the Mahomedan community, which could have sued for possession of a mosque in possession of non-Muslims, even though the individuals of that community cannot sue for such relief, but the relief asked for is only for a mere declaration and injunction, the suit is not maintainable.'

It would appear that in that case their Lordships were of the opinion that the plaintiffs were conscious that a suit for possession would be barred by time and, therefore, they sued for a mere declaration and injunction. Under those circumstances, their Lordships observed that the plaintiffs could not circumvent the law of limitation by merely suing for an injunction, while they could have sued for possession. It is significant that in the present case, however, the amendment is not opposed on the ground of limitation.

4. Reference was also made to--'Nasir Uddin v. Baboo Lal', AIR 1945 All 197 (B), wherein Verma, J., observed that:

'The powers to allow amendment of pleadings conferred upon the Courts by the Code of 1908 are wider than those conferred by the Code of 1882, and however the necessity to amend may have arisen, leave to amend under Order 6, Rule 17 should always be granted and at any stage in the proceedings, in order to allow the real question at issue between the parties, to be raised on the pleadings unless the party applying for leave has acted in bad faith or the amendment will cause some injury to the opposite party, for which he cannot be fully compensated by costs or otherwise.'

This ruling, if anything, goes in favour of the respondents. As Mr. Sud rightly pointed out, the plaintiffs came to Court on the basis of their title. The finding of the trial Court on the point of title was in favour of the plaintiffs. His finding was maintained by the learned District Judge in appeal. The latter, however, felt that the plaintiffs were out of possession, when the suit was instituted.

Consequently, he felt that the suit was not maintainable, unless the plaintiffs asked for possession as well. Then, the learned District Judge sent on to, consider whether the suit should be dismissed, or the plaintiffs should be allowed an opportunity to amend their plaint. He then pointed out that the defendant raised the objection regarding the frame of the suit at a late stage.

Considering all the circumstances, the District Judge felt-- and in my opinion not without justification--that this was a fit case where the plaintiffs should be permitted to amend the plaint instead of forcing them to file a fresh suit. I amunable to accept the argument of the learned counsel for the petitioner that the amendment changes the nature of the suit.

The real point at issue was whether the defendant' was entitled to cut grass or allow his cattle to graze upon the ghasni, measuring three bighas and fifteen biswas, comprising part of Khasra No.293. In my opinion, no substantial, injury would be caused to the defendant as a result of this amendment.

5. In an earlier ruling of this Court, reported in--'Jai Kissen v. Mt. Ram Rakhi', AIR 1950 Him Pra. 12 (C), my learned predecessor, Dr. Bannerji, pointed out that:

'It is well established principle that the object of Court is to decide the rights of the parties and riot to punish for mistakes they make in the conduct of their cases, by deciding otherwise than in accordance with their rights. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy. As soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is, as such, a matter of right on his part to have it corrected.'

In--'Man Singh v. Rulia', AIR 1950 EP 363 (D), Harnam Singh, J., after quoting the provisions of Order 6, Rule 7, said that:

'From a perusal of Rule 7, it appears that a party can be allowed to plead, by way of amendment, an allegation of fact inconsistent with the previous pleadings of that party.'

In--'Lakshmipathiraju v. Jagani Venkataswami' AIR 1946 Mad 324 (E), Somayya, J., indicated that:

'Too technical, a view should not be taken by Courts in discharging their duties as to amendments. All amendments, which do not throw an unnecessary and unreasonable burden on the other side, should be allowed, and only those amendments, which cannot be compensated by an award of costs should be refused.'

6. Mr. Thakar Das pointed out that in spite of the order of the learned District Judge, the plaintiffs, in the amended plaint put in by them in the trial Court on 16-12-1954, still persisted in alleging that they were in possession. When the attention of Mr. Sud (counsel for the respondents) was drawn to this, he made a statement to this Court to the effect that he would apply for the amendment of the plaint strictly in accordance with the orders of the District Judge. He further stated that the amended plaint filed on 16-12-1954 may be ignored.

7. To sum up therefore, I am unable to hold that the learned District Judge has acted, in the exercise of his jurisdiction, with material irregularity in permitting the amendment of the plaint.

8. Consequently, the so-called appeal, whichwas heard as a revision petition, is rejected with costsassessed at Rs. 30/-. The suit, which was instituted on 27-1-1951 should be expedited and disposedof at an early date. Stay order granted on 19-5-1955 is discharged.


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