1. The learned advocate for the petitioner has drawn attention of this Court on application exh. 18 dated 11/10/2012, filed by the petitioner original defendant in Regular Civil Suit No. 209 of 2012 and has vehemently submitted that, as the term has been expired, the new election for the term 2012 - 2014 has been held and it has been completed and the new elected members have already taken charge of their office. On appointment of the said new committee, the suit has become infructuous and hence, the application, exh. 18 has been filed by the petitioner original defendant to dispose the suit in view of the fact that the same has become infructuous. The said application, exh. 18 has been filed because the subject matter of the suit was for the term 2010 2012 only and no interim injunction has been granted against the petitioner original defendant herein and accordingly, election was held for the term 2012 2014. Simultaneously, the respondents original plaintiffs herein have preferred the application under O. 6 R. 17 of the Civil Procedure Code, 1908 (for short the CPC ) by preferring application, exh. 22 dated 30/10/2012. The learned Court below has passed the orders below exh. 18 and exh. 22 on the same date i.e. on 20/12/2012 on merits, after hearing the learned advocates for the parties. The learned advocate for the petitioner further submitted that the learned Court below has also erred in not appreciating the fact that as the new elected body has taken the charge of their office, if the application at exh. 22 be allowed, then, it will change the structure of the suit and it would definitely prejudice the interest of the petitioner original defendant herein.
1.1 The learned advocate for the petitioner has put reliance on a decision of the Hon ble the Apex Court in Bharat Karsondas Thakkar Vs. M/s. Kiran Construction Co. & Others, reported in 2008 (3) GLH 19. The learned advocate for the petitioner drawn attention of the Court to the Head Note, which is extracted as under:
Civil Laws Specific Performance Code of Civil Procedure, 1908 O.1 R.3 and R.10, O.22, R.10 Specific Relief Act, 1963 S. 15(a) Amendment of the pleadings In a suit for specific performance of an agreement for sale of immovable property, instituted by beneficiary, third party having interest in the same property, cannot be added Held: Amendment of plaint resulting in complete change in the nature of suit from being suit for specific performance to one of declaration of the Title and Possession Not permissible in law.
1.2 The next decision, which is relied by the learned advocate for the petitioner, rendered by the Hon ble the Apex Court, is in the case of Revajeetu Builders and Developers Vs. Narayanswamy and Sons, reported in 2009 (0) GLHEL-SC 47726 : (2009) 10 SCC 84. The learned advocate for the petitioner drawn the attention of the Court on the Head Note, which reads as under:
Code of Civil Procedure, 1908 Or. 6 R. 17 amendment of plaint suit for recovery of money amendment application given to add certain paragraphs in plaint and delete certain clauses in prayer clauses Trial Court allowed amendment High Court set aside order of Trial Court holding that plaintiff tried to introduce new case and it changed character of suit and it cannot be permitted after 4 years of filing of suit held, Court while adjudicating amendment applications Court should not refuse bonafide, legitimate, honest and required amendments and simultaneously should not permit mala fide, worthless and/or dishonest amendments application seeking amendment dismissed with costs appeal dismissed.
1.3 The learned advocate for the petitioner also drawn the attention of the Court to Para 57 to 61 of the aforesaid decision, which read as under:
57. In Haridas Aildas Thadani & Others V/s. Godraj Rustom Kermani 20 (1984) 1 SCC 668 this Court said that "It is well settled that the Court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional Court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.
58. In B. K. Narayana Pillai v. Parameshwaram Pilliai and Another 21 (2000) 1 SCC 712 a suit was filed by A for recovery of possession from B alleging that was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused.
59. Setting aside the orders refusing amendment, this Court stated:
"The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
60. In Suraj Prakash Bhasin V/s. Raj Rani Bhasin & Others, 22 (1981) 3 SCC 652 this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for another and that the subject-matter of the suit should not be changed by amendment.
WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY :
61. The first condition which must be satisfied before the amendment can be allowed by the Court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the Courts' discretion in grant or refusal of the amendment.
1.4 Lastly, the learned advocate for the petitioner submitted that considering the above proposition of law, if the application, exh. 22 be allowed as per the order passed by the learned Court below, then, the entire structure of the suit will be changed and it will definitely, prejudice the present petitioner and hence, present petition, filed by the petitioner, challenging both the orders, passed below exh. 18 and 22 dated 20/12/2012 be set aside, moresowhen, there is no ground at all and no irregularity has been committed by the petitioner so that one can challenge the election for the term 2012 2014.
2. In view of the ratio laid down by the Hon ble the Apex Court in the above-referred citations, I have carefully considered both the orders dated 20/12/2012, passed below exh. 18 and 22. A query has been put the learned advocate for the petitioner, whether Written Statement has been filed or not in the suit, to which he submitted that, right now, he is not in a position to give satisfactorily answer to the said query. The learned advocate for the petitioner is also unable to answer as to on which date, the Annual General Meeting (for short AGM ) was called for. The learned advocate for the petitioner only submitted that in fact, the AGM was not required to be called for because the petitioner original defendant herein has passed three Resolutions dated 28/06/2011, 09/10/2011 and 22/11/2010 as the earlier committee related to the present respondents was not functioning properly, in accordance with the bye-laws and therefore, the said Resolutions were made, which are under challenge by way of this suit.
2.1 I have perused the prayer sought for in the plaint at Para 18(1) and 18(2). It is pertinent to note that over and above the term 2010 2012, the further prayer has also been sought for, for permanent injunction related to the next term i.e. 2012 2014. It is also pertinent to note that in the present case, the new committee has been appointed by the petitioner original defendant as submitted by the learned advocate for the petitioner and said appointment was challenged in the suit by way of amendment. Before deciding the application, the election for the term 2012 2014 was held. In fact, by preferring the Regular Civil Suit No. 209 of 2012, the respondents original plaintiff herein have challenged the Resolutions dated 22/11/2010, 28/06/2011 and 09/10/2011 seeking prayer to declare the same as null and void and the said issue is yet to be decided. The learned trial Court has observed that mere holding the elections, does not make the suit infructuous. I find myself in complete agreement with the same. In my view, to avoid the multiplicity of proceedings if the amendment as sought for vide exh. 22 be allowed, it will not alter the basic structure of the suit and moreover, it will not prejudice the interest of the other side, more particularly, because the newly elected body has already taken the charge of their office. Hence, there appears no substance in the above-referred submissions made by the learned advocate for the petitioner. Thus, this petition fails and the same is accordingly, dismissed.
[ G. B. Shah, J. ] hiren Page 10 of 10