This civil revision under Section 115 of the Code of Civil Procedure, 1908 is directed against the judgement and order dated 11th September, 2012 passed by the Additional Civil Judge (Senior Division), Court No. 2, Ghaziabad in Suit No. 173 of 2004 (Balak Ram and others v. Jai Karan Singh and others), whereby the amendment application moved by the defendants-revisionists to amend the written statement has been rejected.
Briefly stated, the facts are that the plaintiffs-opposite parties instituted a suit, registered as Suit No. 173 of 2004 (Balak Ram and others v. Jai Karan Singh and others), for ejectment of the defendants from the suit property; recovery of a sum of Rs.2000/- against the defendants; and, for permanent prohibitory injunction for restraining the defendants from making any interference in the possession of the plaintiffs over the suit property. The case of the plaintiffs was that the suit property was owned by Sri Raj Kumar, son of Sri Ghanshyam Das Khetavat, and Sri Rishi Dev Batra, son of Sri Sewa Ram Batra. The plaintiffs purchased the said property by a registered sale-deed dated 10th April, 1985 and were put in possession by the vendors. The total area of the land in question was 8 biswa. The plaintiffs, after purchasing the suit property, have constructed four shops and three rooms. The defendant no. 1 is father of the defendant nos. 2 and 3 and real brother of the plaintiffs. The defendants have caused interference in the possession of the plaintiffs over the suit property and tried to stop the construction activity. It appears that the revisionists-defendants instituted the proceedings of Original Suit No. 1312 of 2002 and moved an application for temporary injunction therein, which was rejected by the trial Court, and the suit is said to be still pending. It is stated that the defendants, in order to dislodge the plaintiffs from the suit property, broke open the locks of the shops and rooms constructed over the suit property in the intervening night between 24/25th January, 2004 and a criminal proceeding under Section 145 Cr.P.C. was initiated.
The defendants have filed their written statement and contested the suit. Later on, they moved an application for amendment in the written statement to incorporate the facts about the proceedings under Section 145 Cr.P.C.
The amendment application moved by the defendants has been rejected by the Court below vide impugned judgement and order dated 11th September, 2012 on the ground that the amendment is totally vague and the said proceeding has already been concluded on 29th June, 2006 by the Sub-Divisional Magistrate, Ghaziabad and the judgement of the said proceeding has been filed by the plaintiffs in the year 2009. The Court below was of the view that the order of the said proceedings under Section 145 Cr.P.C. is already on the record since 2009 and the said criminal proceeding has no relevance in the present dispute.
I have heard learned Counsel for the revisionists and learned Counsel for the opposite parties.
Learned Counsel for the revisionists submits that it is a settled law that the Courts should be liberal in granting prayer for amendment in the pleadings except on the grounds that serious injustice or irreparable loss is caused to the other side or the prayer for amendment was not a bona fide one. He urged that the reason given by the Court below is totally unjustified. Learned Counsel for the revisionists has relied upon the judgements of the Supreme Court in the cases of Usha Balashaheb Swami & ors. v. Kiran Appaso Swami & ors., 2007 (3) Supreme 582; and, Bollepanda P. Poonacha & anr. v. K.M. Madapa, 2008 (2) Supreme 733.
Learned Counsel for the opposite parties submits that the amendment application has been filed only with a view to delay the proceedings.
I have considered the rival submissions advanced by the learned Counsel for the parties and perused the record.
It is a trite law that the Courts should be liberal in granting the prayer for amendment of pleadings subject to certain conditions that the amendment is not barred by the limitation; the other party has not been taken by surprise; or, by the amendment some admission has been sought to be withdrawn.
The Supreme Court in the case of Ravajeetu Builders and Developers v. Narayanswamy and sons and others, (2009) 10 SCC 84, has culled out the following factors to be taken into consideration while dealing with the applications for amendments:
"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
"(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala fide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."
The Court below has not given any cogent reason for rejecting the amendment. From a perusal of the proposed amendment it is evident that the defendants only want to incorporate the facts in respect of the proceedings of Section 145 Cr.P.C.. Said amendment shall not cause any prejudice to the plaintiffs. The Court below has not found that the amendment has been made malafidely or it has been moved belatedly.
For the aforestated reasons, the order of the Court below 11th September, 2012, as is impugned in this revision, is unsustainable and liable to be set aside. Accordingly, it is set aside. The matter is remitted back to the Court below to consider afresh.
Thus, the revision is allowed.
No order as to costs.
Order Date :- 30th May, 2014 SKT/-
Hon'ble Pradeep Kumar Singh Baghel, J.
The revision is allowed.
For order, see my order of the date passed on the separate sheets (four pages).
Dt.- 30th May, 2014.
SKT/-