Reserved on 11.12.2019 Delivered on 17.12.2019
Court No. - 44
Case :- MATTERS UNDER ARTICLE 227 No. - 9553 of 2019 Petitioner :- Mithai Lal Respondent :- Ashok Kumar Gupta And 4 Others Counsel for Petitioner :- Anil Kumar Mishra Counsel for Respondent :- Chandra Prakash Srivastava
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and Sri Chandra Prakash Srivastava, learned counsel appearing for the respondents.
The present petition has been filed challenging the order dated 22.8.2019 passed by the Civil Judge (Junior Division) Robertsganj, Sonebhadra in Original Suit No. 112 of 2007 (Lalji and others v. Mithai Lal) and the order dated 1.11.2019 passed by the District Judge, Sonebhadra in Civil Revision No. 21 of 2019 (Mithai Lal v. Ashok Kumar Gupta and others).
The respondents in the present petition filed a suit being Original Original Suit No. 112 of 2007 in the Court of Civil Judge (Junior Division), Robertsganj, Sonebhadra, alleging that they are the owners of property bearing no. 174, which was given on rent to the petitioner for running a shop at Rs. 450/- per month on 10.6.1997. In the said suit, the property in occupation of the petitioner was marked as Ka, Kha, Ga, Gha and coloured in red. The relief sought was to evict the petitioner from the part of the property marked as Ka, Kha, Ga, Gha (marked in red) by a decree of eviction. The suit was contested by the petitioner herein by filing a written statement and the Court in pursuance to the pleadings exchanged before the Court framed five issues.
plaintiff in the suit claiming that on the west side of the property described as Ka, Kha, Ga, Gha, the petitioner herein has raised constructions illegally during the pendency of the suit and thus by means of the amendment a relief was sought for eviction of the petitioner herein from the said portion also.
The petitioner herein filed his objections to the said amendment application mainly on the grounds that the amendment as proposed was on a new cause of action. It was also opposed that in the amendment sought, no amendment has been prayed for with regards to the valuation of the suit as well as the Court fees. It was also objected that the amendment as sought is barred by the proviso to Order 6 Rule 17 CPC.
The Trail Court proceeded to allow the amendment application holding that there is no change in the nature of the suit and as regards the delay, the same can be compensated by costs and thus proceeded to allow the amendment application vide order dated 4.12.2018.
The petitioner aggrieved against the said order, preferred a revision before the District Judge, Sonebhadra being Civil Revision No. 21 of 2019 taking grounds that by means of the amendment application the entire nature of the suit has been changed, the amendments sought are based upon an entirely new cause of action and were barred under the provisions of Order 6 Rule 17 CPC as amended.
The Revisional Court dismissed the revision vide its order dated 1.11.2019 holding that the amendment as sought was not barred under the provisions of Order 6 Rule 17 nor does it change the nature of the suit. It was further held that if the amendment sought was not allowed, the second suit would be barred under Section 11 CPC read with Order 2 Rule 2 CPC as well as under Section 34 of the Specific Relief Act.
Counsel for the petitioner has argued that the amendment as proposed is based upon a separate cause of action. It was further argued that the Amin report, filed during the pendency of the suit clearly recorded that the constructions as sought to be removed existed since long and even prior to the filing of the suit in question. It was further argued that the suit, when filed, was confined to the portion marked as A, B, C, D at the foot of the plaint and by means of the amendment a new relief has been prayed which is based upon a separate cause of action and would adversely affect the rights vested in the petitioner. It was lastly argued that the amendment sought is specifically barred in terms of the proviso to Order 6 Rule 17. The counsel for the petitioner also argues that the Revisional Court has erred in holding that the second suit would be barred by the provisions of Section 11, read with Order 2 Rule 2 CPC as well as under Section 34 of the Specific Relief Act.
The counsel for the respondents on the other hand has justified the orders, although he gave up his right to file any counter affidavit to the present petition. He proceeded to argue that the amendment has been rightly allowed as during the pendency of the suit, the petitioner herein made illegal constructions on the west side of the property without any permission and since the suit related to the same parties, no error has been committed by the Courts Below in allowing the amendment application.
The sole question to be considered is whether the amendment based upon a new cause of action can be allowed ignoring the provisions of proviso to Order 6 Rule 17 and without considering the affect of the said amendment on the rights of the defendant to plead defence of limitation and time barred, as the amendment if allowed relates back to the date of filing of the suit.
The Hon’ble Supreme Court in the case of L.C. Hanumanthappa v. H.B. Shivakumar; (2016) 1 SCC 332 clarified the position with regard to scope of Order 6 Rule 17 and held as under:-
“15. As early as in the year 1909, the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644] , held as follows: (ILR p. 655) "… 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 … but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that 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?"
16. This statement of the law was expressly approved by a three-Judge Bench of this Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [1957 SCR 595 : AIR 1957 SC 363] SCR pp. 603-04.
17. Twenty years later, the Privy Council in Charan Das v. Amir Khan [(1919-20) 47 IA 255 : (1921) 13 LW 49] , stated the law as follows: (IA p. 262) “… That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases … where such considerations are outweighed by the special circumstances of the case….”
18. This statement of the law was cited with approval in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co. [1957 SCR 438 : AIR 1957 SC 357] SCR pp. 450-51.”
Thus the Court held that allowing of the amendments should be liberal, however the exception is that the amendment cannot be allowed if a legal right has accrued to the defendant by lapse of time.
In the present case, the suit in question was filed in the year 2007, and the amendments sought were in the year 2018, the defence of the petitioner that the Amin report clearly indicated that the constructions, sought to be removed by means of the amendment stood at the property in question would necessarily entail the consideration of the rights that may have accrued to the defendant by passage of time. By means of the present amendment, the respondents set up an entirely new case. The property in question was also separate and distinct from the property in question described at the foot of the plaint at the time of filing of the suit. There was no whisper or averment as to how the proviso to Order 6 Rule 17 could be overlooked by the plaintiff in the suit. These aspects have also not been considered by either of the Courts Below while allowing the amendment. The Revisional court has further committed an error in holding that the amendment is to be allowed only because the rejection of the same would make the claim barred under Section 11, Order 2 Rule 2 CPC read with Section 34 of the Specific Relief Act, which finding itself establishes that a right would have accrued in favour of the defendant if a fresh suit was directed to be filed.
The amendments as sought clearly fall within the exception and if allowed to be incorporated may materially affect the defence/rights that may have accrued in favour of the defendants. In these circumstances, I am inclined to hold that the orders dated 22.8.2019 as well as order dated 1.11.2019 suffers from material irregularity and an improper exercise of the jurisdiction vested in the Trial Courts.
Consequently, the said orders are quashed. However, it is clarified that the respondents herein would be free to initiate proceedings against the petitioner herein in accordance with law for seeking the relief for the portion which is beyond the property as described in the foot of the plaint in Original Suit No. 112 of 2007.
The writ petition is consequently allowed in terms of the order so passed.
The Original Suit No. 112 of 2007 shall be decided expeditiously in accordance with law by the Trial Court.
Order Date :-17.12.2019 SR