Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7750 of 2018 Petitioner :- Smt. Kastura Devi And 04 Others Respondent :- Rama Shanker And 05 Others Counsel for Petitioner :- Anil Kumar Aditya Counsel for Respondent :- Vivek Kumar Tripathi
Hon'ble Manoj Misra, J.
Heard learned counsel for the petitioners; Sri Himanshu Pandey holding brief of Sri Vivek Kumar Tripathi for the contesting respondents 1 to 5; and have perused the record.
With the consent of the learned counsel for the parties the petition is being decided finally at this stage itself.
The predecessor-in-interest of the respondents 1 to 5, namely, Shakuntala Devi, instituted Original Suit No.945 of 2003 against the defendant-petitioners for possession as well as mesne profits. The plaint case was that the suit property was purchased and owned by the plaintiff; that the plaintiff permitted her father to use the premises; that on her father's death, the defendants being his father's successor's and close relative of the plaintiff were permitted to continue using it; that by a notice the plaintiff terminated the license of the defendants and required them to remove their occupation; and that as the defendants failed to remove their occupation the suit was being instituted.
In the suit, as initially instituted, relief for possession and for mesne profit at the rate of Rs.1,000/- per month was sought.
The defendant-petitioners resisted the suit by taking various pleas. One of the pleas was that the suit was under valued and court fee paid was insufficient. The said issue was decided against the plaintiff by order dated 07.09.2012. Consequently, the plaintiff was directed to amend the valuation and pay court fee accordingly.
At this stage of the proceedings in the court below, on behalf of the plaintiff, an application was moved to amend the plaint by giving up the relief for possession and, in lieu thereof, to seek for mandatory injunction to direct the defendants to vacate the premises and to hand over possession to the plaintiff. In addition thereof, amendment was also sought to enhance the rate at which mesne profits were claimed from Rs.1000 per month to Rs.10000 per month. The amendment application was allowed by impugned order dated 08.02.2017 on payment of costs. Aggrieved by order dated 08.02.2017, the petitioners filed Civil Revision No.88 of 2017, which was dismissed by impugned order dated 16.07.2018 passed by the Additional District and Sessions Judge, Court No.12, Varanasi.
Challenging the orders dated 08.02.2017 and 16.07.2018, the present petition has been filed.
The learned counsel for the petitioners has challenged the impugned orders allowing amendment on the grounds: (a) that by amendment the nature of the suit has changed; (b) that the amendment is mala fide to avoid payment of court fee that became payable consequent to decision on the issue as to whether the suit was under valued or not;
(c) that as ordinarily amendment relates back to the date of the institution of the suit, by enhancing the rate at which mesne profits have been claimed from Rs.1,000/- to Rs.10,000/- per month, serious prejudice has been caused to the defendants, inasmuch as, on the date of filing of the amendment application the mesne profits, at the rate of Rs.10000/- p.m., could not have been demanded from the year 2003, as they had become barred by limitation inasmuch as for a money claim the limitation is three years. Hence, such an amendment could only be allowed from the date of the application.
Learned counsel for the plaintiff-respondent submitted: (a) that the amendment does not change the nature of the suit inasmuch as since the very beginning the case of the plaintiff had been that the defendants were mere licensee who were permitted to use the premises in dispute, under the circumstances, relief for mandatory injunction was sufficient and by such change in relief sought neither the nature of the suit changed nor any serious prejudice was caused to the defendants because consequences of both the reliefs would be the same; (b) that there is no legal embargo in seeking an amendment to avoid payment of additional court fee if, otherwise, the amendment is permissible by law, as has been held by this court in the case of Pradeep Kumar & Another v. Vishnu Kumar & others, 2018(5) ADJ 260; and (c) that in so far as the rate at which mesne profits was claimed, a specific plea was taken that by typographical mistake in place of Rs.10,000/- per month, it was incorporated as Rs.1,000/- per month and therefore such amendment could be allowed as, admittedly, till date, the trial has not commenced and therefore the embargo placed by the proviso to Rule 17 of Order VI CPC would not apply.
I have given thoughtful consideration to the submissions of the learned counsel for the parties.
As from the beginning, the case of the plaintiff had been that the defendants were permitted to use the accommodation as licensee, on account of being close relative of the plaintiff, and that the license was terminated by a notice and they were required to vacate the premises and hand over possession to the plaintiff, mere change in the nomenclature of the relief sought, which, if allowed, would have same consequences as in the event of the original relief being allowed, would neither change the nature of the suit nor result in any prejudice to the defendants because, admittedly, the amended relief was not barred by limitation on the date of filing of the amendment application. However, as to whether a suit for mandatory injunction and not for possession would be maintainable, in the facts of the case, is an issue which need not be addressed at this stage. It is for the defendants to raise this issue and for the court to decide, at the appropriate stage, while deciding the suit.
In so far as the plea of the learned counsel for the petitioner that amendment should not be allowed to help plaintiff to avoid court fees is concerned that plea cannot be accepted in view of the law laid down by this court in the case of Pradeep Kumar & another (supra) where after examining the provisions of the Court Fees Act, 1870 as well as of the Code of Civil Procedure, it was held that before rejection of the plaint on the ground that deficiency in court fee has not been made good, it is open to the plaintiff to abandon part of his claim, either by way of an application under Order 23 Rule 1 of the Code or by seeking amendment under Order VI Rule 17 of the Code, to reduce valuation of the suit for saving on court fee, unless such abandonment or amendment is otherwise not permissible. The learned counsel for the petitioner has not been able to cite any binding precedent which may persuade the Court to take a different view than what was taken in Pradeep Kumar's case (supra).
However, there is substance in the submission of the learned counsel for the petitioner that the plaintiff cannot be allowed to claim mesne profits at the enhanced rate, by way of amendment, from the date of institution of the suit, inasmuch as, claim for mesne profits being in the nature of money claim would be subject to limitation of three years. Although it is not clear from the record as to when the amendment application was filed but it appears to have been filed in the year 2012 whereas the suit was instituted in the year 2003. Under the circumstances, it would be appropriate to direct that the amendment in the second relief of the plaint, to the extent it seeks to enhance the rate at which mesne profits have been claimed from Rs.1000/- per month to Rs.10000/- per month, shall be effective from the date of filing of the amendment application. Except to the extent indicated above, the impugned orders are affirmed. The petition is partly allowed only to the extent indicated above. There is no order as to costs.
Order Date :- 31.10.2018 AKShukla/-