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Smt. Batni and ors. Vs. Shri Tej Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 42 of 1964
Judge
Reported inAIR1966HP1
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 7, Rule 7
AppellantSmt. Batni and ors.
RespondentShri Tej Singh
Appellant Advocate Hira Lal, Adv.
Respondent Advocate Inder Singh, Adv.
DispositionRevision dismissed
Cases ReferredLudhomal Purtomal and Co. v. Secy. of State
Excerpt:
- .....fails to prove that the defendants are licensees, then as the defendants are in possession of the suit property without any right, title or interest, then a decree of possession be passed in favour of the plaintiff and against the defendants with costs.' it was alleged, in the application, that the aforesaid amendment was necessary for the purpose of determining the real questions in controversy between the parties and would avoid multiplicity of litigation.5. the application for amendment was opposed, on behalf of the petitioners. it was pleaded that the application was not made bona fide, that the amendment would introduce an inconsistent and totally different cause of action and that the amendment in the relief clause could not be allowed as the plaint did not disclose any cause of.....
Judgment:

Om Prakash, J.

1. This revision-petition is directed against an order of the learned Senior Subordinate Judge, Mandi, allowing an application of the respondent, for amending the plaint.

2. The respondent had instituted a suit, against the petitioners, for the issue of a mandatory injunction The allegations, in the suit, were that the property, in suit belonged to the Union of India, that the respondent had purchased the property at an auction sale, that the petitioners were the licensees of the property and that the license of the petitioners determined on 23-3-1964 but they had not vacated the properly. The respondent prayed for the issue of a mandatory injunction directing the petitioners to remove their goods, luggage and persons from the properly and restraining them from interfering with the possession of the respondent.

3. The petitioners contested the suit, on various grounds. It is not necessary, for the decision of the revision petition, to set out all those grounds. Suffice it to say that the petitioners denied that the property belonged to the Union of India or that they were mere licensees. The petitioners pleaded that they were in possession of the property as tenants on the basis of a lease granted by the real owner of the property, Hakumat Khan. The petitioners had, also, taken up preliminary objections, against the maintainability of the suit. One of the preliminary objections was that the respondent being, admittedly, out of possession, was not entitled to maintain a suit for injunction, without suing for possession.

4. The written statement was filed, in the suit, on 13-7-1964. On 1-8-1964, an application, for amending the plaint, was put in, on behalf of the respondent. The amendment was sought in the relief clause. The amendment sought was 'even in alternative, if the plaintiff fails to prove that the defendants are licensees, then as the defendants are in possession of the suit property without any right, title or interest, then a decree of possession be passed in favour of the plaintiff and against the defendants with costs.' It was alleged, in the application, that the aforesaid amendment was necessary for the purpose of determining the real questions in controversy between the parties and would avoid multiplicity of litigation.

5. The application for amendment was opposed, on behalf of the petitioners. It was pleaded that the application was not made bona fide, that the amendment would introduce an inconsistent and totally different cause of action and that the amendment in the relief clause could not be allowed as the plaint did not disclose any cause of action upon the basis of which the relief sought could be granted.

6. The learned Senior Subordinate Judge allowed the application for amendment.

7. The petitioners have come up in revision against the order allowing amendment. The principles, with respect to the amendment of pleadings, are well settled. It was observed by their Lordships of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 240 that:

'All rules of Courts are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and he subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but none the less no power has been given to enable one distinct cause of action to he substituted for another, nor to change, by amendment, the subject matter of the suit.'

8. Again, it was laid down in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil (S) AIR 1957 SC 363 that:

'All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) 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. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?'

9. The learned counsel for the petitioners contended that the amendment allowed by the learned Senior Subordinate Judge, had introduced a case, which was totally different from, and inconsistent with, the case set up in the plaint and that it should not, therefore have been allowed The learned counsel placed reliance on Sukh Ram v. Narainoo, AIR 1952 Him Pra and Bilaspur 38. The contention off the learned counsel is not sound. The suit of the respondent was based on the allegation that he had purchased the property, at an auction sale and that the petitioners were licensees. The amendment, sought, was to the effect that even if the petitioners were held not to be licensees, they were trespassers and the respondent was entitled to get possession as against them. The amendment did not substitute one cause of action for another distinct cause of action. It did not change the subject-matter of the suit or introduce A totally different case. It is true that the prayer for possession was not consistent with the allegation that the respondent was in possession of the property in suit. But the prayer for possession was made in the alternative There is nothing in law to prevent a parry from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative, vide Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177. In a suit for perpetual injunction, an amendment for including a prayer for possession should, generally speaking, be allowed unless the amendment would cause injustice to the opposite party. Such an amendment avoids multiplicity of suits. Amendment for possession was allowed in suits, instituted for the issue of an injunction, in Mukh Ram v. Har Kesh, AIR 1928 Lah 112 and Maruti v. Ranganath, (S) AIR 1955 Hyd 1 (FB). The authority AIR 1962 Him Pra and Bilaspur 38, relied upon by the learned counsel for the petitioners, is not at all applicable to the facts of the present case The facts, in that authority, were that the plaintiffs' father had created occupancy rights in favour of ten persons. Thereupon, the plaintiffs filed a suit for a declaration that the alienation would not be binding on them after the death of their father because the property alienated was ancestral property and the alienation was made without consideration or legal necessity. The trial Court had decreed the suit. Thereupon, the alienee-defendants filed an appeal in the Court of the District Judge. On the date of hearing of arguments, in the appeal, an application was presented, on behalf of the alienee-defendants, for amendment of their written statement, by being allowed to plead that the property in suit was not ancestral qua the plaintiffs but was rather the self-acquired property of their father. The application was contested by the plaintiffs. The District Judge allowed the amendment. The plaintiffs came up in revision to this Court. The revision-petition was allowed and the order of the District Judge was set aside. It was observed by this Court that in view of the provisions of Order 8, Rule 5 C. P. C., the alienee-defendants should be deemed to have admitted the allegation, in the plaint, about the ancestral nature of the property and that having been unsuccessful, on the pleas raised, they wanted to try their luck on an additional plea by way merely as an afterthought and that the amendment should not have been allowed. The facts in the present case are entirely different. The decision in AIR 1952 Him Pra and Bilaspur 38 cannot have any application to the present case.

10. It was, next, contended by the learned counsel for the petitioners, that the amendment allowed had caused injustice to the petitioners inasmuch as they had been deprived of their right to get the suit dismissed on the plea that a suit for mere injunction was not maintainable. It is not a universal rule that an amendment cannot be allowed because its effect would be to deprive the opposite party of a plea which would have resulted in the dismissal of the suit. There are decisions, in which amendment, was allowed, though its effect was to deprive the opposite party of his right to plead limitation. Reference in this connection, may be made to Charan Das v. Amir Khan, AIR 1921 PC 50, L. J. Leach and Co. Ltd. v. Messrs. Jardine Skinner and Co., (S) AIR 1957 SC 357 and (S) AIR 1957 SC 363 supra. The learned Senior Subordinate Judge had the power to allow the amendment of the plaint even though the result of the amendment was to defeat the plea raised by the petitioners that the suit was not maintainable.

The application for amendment was made by the respondent at the earliest. The nature or the subject-matter of the suit was not changed. The petitioners were awarded costs. In the circumstances, the amendment could not be said to have worked injustice to the petitioners.

11. Lastly, it was contended by the learned counsel for the petitioners, that the application for amendment could not be considered to have been made bona fide as the respondent was aware, before the filing of the suit, that the petitioners were in possession as trespassers and that he should have sued for possession, in the first instance. In this connection, the learned counsel referred to the notice dated the 12th December, 1963, issued on behalf of the respondent, by Shri Vishwa Nath, Advocate. It was stated, in this notice, that the petitioners were in possession of the property, in suit, as trespassers. Assuming for the sake of argument that the respondent knew that the petitioners were in possession of the property, in suit, as trespassers and not as licensees, this fact alone would not make the application for amendment as having been made mala fide. The failure of the respondent to institute a suit for possession in the first instance was only a mistake and he was entitled to get that mistake corrected by seeking an amendment. As has been rightly point-ed out by the learned Senior Subordinate Judge, the object of Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases. The case Ludhomal Purtomal and Co. v. Secy. of State, AIR 1918 Sind 6, relied upon by the learned counsel for the petitioners, is distinguishable. It was held, in that case, that the application for amendment had been made at a late stage and that the amendment sought was not necessary for the purpose of determining the real question in controversy between the parties. In the present case, the amendment was sought at the earliest and was necessary for the purpose of determining the controversy between the parties.

12. The conclusion from the above discussion is that the learned Senior Subordinate Judge was justified in allowing the application of the respondent for amendment. The revision-petition must fail.

13. Before concluding, it may be pointed out that the learned counsel for the respondent had raised a preliminary objection against the maintainability of the revision-petition. The objection was that as the petitioners had accepted costs of the amendment, they were precluded from disputing the correctness of the order, allowing amendment. The reply of the learned counsel for the petitioners, to the preliminary objection, was that the costs were accepted under protest and that the petitioners were, therefore, not barred from challenging the correctness of the order. As the revision-petition fails on merits it is unnecessary to record a finding on the preliminary objection, taken up by the learned counsel for the respondent.

14. The revision-petition is dismissed. However. parties are left to bear their own costs.


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