HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution seeks assailing the order dated 27.01.2010 of learned Civil Judge, whereby the applications under Order 6 Rule 17 CPC filed by the petitioner, who was the plaintiff in the suit, was dismissed.
2. The petitioner/plaintiff had filed a suit for permanent and mandatory injunction against the respondent, seeking restraint against raising any demand on the basis of inspection of electric meter connection in the suit premises and direction to restore the electricity to that connection. Vide applications under Order 6 Rule 17 CPC, the amendment was sought regarding declaration of the theft bill dated 19.02.1999 as null and void. The said application was resisted by the respondent on the ground that it will change the nature of the suit and the relief of declaration was otherwise time barred being sought after more than three years of the aforesaid bill. Vide the impugned order, the application was dismissed by the Civil Judge, which is under challenge in the instant petition.
3. Having heard the learned counsel for the petitioner and the respondent and, on going through the record and the impugned order, it is noticed that the foundation of the filing of the suit for injunction was the demand raised by the respondent on the basis of inspection of the electricity connection on 21.05.1998 and the disconnection of the electricity of the petitioner. Based on this inspection, a theft bill of Rs. 9,13,725.27/- dated 19.2.1999 was raised by the respondent against the said electric connection. The instant suit was filed on 10.06.1998. Till then the aforesaid theft bill dated 19.02.1999 was not raised. It is also admitted that aforesaid bill was served upon the petitioner in the court on 11.8.2005. If that was so, undisputedly, the relief of declaration of the said bill as null and void, was not available to the petitioner till the service of the bill on him on 11.08.2005.
4. The relief of declaration being the main relief and that of injunctions being the consequential, the petitioner was entitled to seek such a relief and in fact, ought to have so sought immediately on the receipt of the said bill. However, having not so done, it cannot be denied that he is entitled to seek such a relief by filing of separate suit. By seeking the relief of declaration in the same suit, I do not see that the basic structure of the suit would be altered by the proposed amendment. What is sought to be changed is the nature of the relief sought for by the petitioner. If it is permissible for the petitioner to file an independent new suit for the same relief, why it cannot be permitted to be incorporated in the pending suit. Allowing such an amendment would also curtail multiplicity of legal proceedings.
5. The law with regard to order 6 Rule 17 of CPC has been repeatedly reiterated by the Apex Court. In the case of Sampath Kumar Vs. Ayyakannu & Another, AIR 2002 SC 3369, it was held thus:
“9. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting- forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amendment. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment”.
6. In the aforesaid case also, the amendment was sought for almost 11 years after the date of institution of the suit, and it was held that in order to avoid multiplicity of suits, it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. It was also held that the merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment.
7. The plea of the learned counsel for the respondent regarding limitation, finds answer in the observation of the Supreme Court in the case of Pankaja & Anr. Vs. Yellappa (D) By LRs & Ors., V (2004) SLT 30 in the following words:
“12. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.
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14. This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors. 2004 (3) SCC 392. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice.
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… In such a situation where there is a dispute as to the bar of limitation this Court in the case of Ragu Thilak D. John Vs. S. Rayappan & Ors. (supra) has held :-
"The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for."
8. In view of the legal proposition as enunciated above, and noting that the basis of the reliefs of the injunctions which were sought was the inspection and the consequent raising of bill as also disconnection, it can be said that the necessary factual basis has already been laid down in the plaint. The bill in question was issued by the respondent itself and thus, there was neither any surprise to it, nor any prejudice to be caused by allowing the amendment, which is found to be relevant and necessary for the just decision of the case, and to avoid multiple litigations.
9. In view of my above discussion, the impugned order is neither tenable nor sustainable as per law. The petition is thus allowed. Impugned order is set aside, and consequently, the amendment sought is also allowed. This is, however, subject to payment of cost of Rs. 5000/-. The petition stands disposed of accordingly.
M.L. MEHTA, J.
DECEMBER 18, 2012 akb