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Almu Vs. Gusaoon - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 39 of 1975
Judge
Reported inAIR1977HP33
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantAlmu
RespondentGusaoon
Appellant Advocate Inder Singh, Adv.
Respondent Advocate Kedarishwar, Adv.
DispositionPetition dismissed
Cases Referred and Pritam Singh v. Rajinder Kumar
Excerpt:
- .....plaint will be to displace the original cause of action by an altogether new one, that where the suit was originally based on the pleading that the respondent was in possession it will now proceed on the allegation that he is out of possession. in support of this submission learned counsel relies on govinda v. perumdevi, (1889) ilr 12 mad 136 (137). there the suit had been originally brought for a mere declaration of title on the footing that the plaintiff was a rever-sioner,subsequent to the institution of the suit, the defendant no. 1 died and the plaintiff now claimed a declaration of title as owner of the property consequent upon such death. the madras high court held that the original suit had now become a suit for possession by reason of the reversion having become an estate.....
Judgment:

R.S. Pathak, C.J.

1. This is a defendant's revision petition against an order of the learned Senior Subordinate Judge, Mandi allowing an amendment of the plaint.

2. The plaintiff filed a suit for declaration that he was in joint ownership and possession of certain parcels of land and was entitled to claim partition thereof. The defendant contested the suit and alleged that the suit was incompetent as the plaintiff was out of possession on the date of the institution of the suit and, therefore, a declaratory relief alone was not competent. Sometime later the plaintiff applied for amendment of the plaint alleging that he had been dispossessed during the pendency of the suit and claimed permission to amend the plaint so as to include a relief for possession also. The defendant took two grounds against the amendment application. One was that if the amendment was allowed it would result in changing the cause of action. The other ground was that the amendment application had been moved mala fide.

3. The amendment application has been allowed by the learned Senior Subordinate Judge by his order dated May 15, 1975, and the defendant now appliesin revision.

4. The first contention of Shri Inder Singh, on behalf of the petitioner, is that the consequence of permitting an amendment of the plaint will be to displace the original cause of action by an altogether new one, that where the suit was originally based on the pleading that the respondent was in possession it will now proceed on the allegation that he is out of possession. In support of this submission learned counsel relies on Govinda v. Perumdevi, (1889) ILR 12 Mad 136 (137). There the suit had been originally brought for a mere declaration of title on the footing that the plaintiff was a rever-sioner,Subsequent to the institution of the suit, the defendant No. 1 died and the plaintiff now claimed a declaration of title as owner of the property consequent upon such death. The Madras High Court held that the original suit had now become a suit for possession by reason of the reversion having become an estate vested in possession and therefore, the amendment subsantially altered the original cause of action. It is true that they also observed that the amendment rested on an event which did not occur until after the suit had been instituted, but the observation taken in the context in which it was made arose out of the circumstance that the original cause of action had been entirely replaced by a different one. Whereas the suit was brought originally on the basis that the plaintiff was a reversioner, it now rested on the basis that he had become owner of the property. In the present case, having pleaded that he was in possession all that the plaintiff could do was to pray for a declaration of his title to the property and nothing more. If, as he alleges, he was dispossessed from the property during the pendency of the suit, it became necessary for him to pray for possession also. There was no change essentially in the cause of action. The basis of the suit remained throughout the title ofthe plaintiff. The additional relief ior possession in the suit was a relief following upon the declaration of his title, and not in substitution of it. It was necessitated because he had been dispossessed from the property during the pendency of the suit. Reliance is also placed by learned counsel for the petitioner on Damar Mahaton v. Jagdip Mahton, AIR 1936 Pat 535, but in that case the Patna High Court merely followed Govinda (supra).

5. A case in point is Maruti v, Ranganath, AIR 1955 Hyd 1 (FB). A Full Bench of the Hyderabad High Court laid down that the original cause of action had not altered and that (was) what was claimed by way of amendment, even though it related to an event which occurred after the institution of the suit, directly flowed from the original relief claimed in the suit. In my opinion, it is one thing to say that an event happening after the institution of the suit results in substantially displacing the original cause of action by a new cause of action; it is another thing to say that an event which occurred after the institution of a suit merely calls for relief in addition to that already claimed, the original cause of action remaining intact. The case before me falls in the latter category.

6. Learned counsel for the petitioner then points out that in the amendment application the respondent has not mentioned the date on which he was dispossessed, and in being granted the amendment in the terms sought he was being allowed the advantage of mentioning any date which would be advantageous to him. In my opinion, it is open to the petitioner to require the respondent to give better particulars in regard to the allegation of dispossession. That is a right which belongs to the petitioner even after the amendment has been permitted. Whether the dispossession is alleged to have taken place on one date or the other, I cannot see how it should affect the question of allowing the amendment application. That is a matter which relates to the decision on the merits of the case.

7. It is also contended by the petitioner that allowing the amendment will result in dating back the allegation of dispossession to the date of institution of the suit. The submission is plainly without substance. On the pleading itself, the dispossession is said to have taken place during the pendency of the suit. It cannot logically be considered as dating back to the institution of the suit.

8. Lastly, learned counsel contends that the effect of the delay in making the amendment application should be considered. Reliance has been placed on Harish Chandra Bajpai v. Triloki Singh, AIR 1957 SC 444, Laxmidas Dayabhai Kabarwala v. Nanabhai Chunilal Kabarwala, AIR 1964 SC 11, Gauri Shankar v. M/s. Hindustan Trust (Pvt.) Ltd., AIR 1972 SC 2091 and Mehar Das v. Surjo, 1972 Sim LJ 146 and Pritam Singh v. Rajinder Kumar, ILR (1975) Him Pra 187. There is no doubt that when, considering whether an amendment of the pleadings should be allowed, delay is a material factor to be taken into account. But in every case the court will consider whether the effect of permitting an amendment after the lapse of time results in a denial of the rights of a party and injustice to him. Each case must be decided on its own facts. In the present case, I am not satisfied that the delay with which the amendment has been sought should be permitted to defeat the amendment application,

9. The revision petition is accordingly dismissed, There is no order as to costs.


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