Shanti Sarup Verma vs Sat Narain
1997 Latest Caselaw 709 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner , who is the defendant in the suit is aggrieved by an order dated 23.2.1980, passed by the then Sub-Judge, First Class, allowing the amendment application under Order Vi Rule 17 Code of Civil Procedure, moved by the plaintiff.

(2) The facts in brief may be noticed:

(I)The plaintiff/respondent one Sh. Sat Narain filed a suit for possession against the petitioner/defendant, Sh. Shanti Sarup Verma, claiming to be the owner of House No.312, Gali Panihari, Teliwara , Delhi as per the plan attached. It was averred that one Sh. Babu Ram S/O Sh.Mam Raj was a tenant in the house at a monthly rent of Rs.17.00 . He died leaving behind no legal representatives. The defendant wrongfully and illegally, after the death of Sh. Babu Ram trespassed into the house and took unlawful possession of the property, in the tenancy of the deceased. It appears that the plaintiff applied for obtained some inconsequential amendment in October, 1978.

(II)The respondent/plaintiff moved an application for amendment in April, 1979 on the ground that the averment regarding defendant having wrongfully and illegally, after the death of Sh. Babu Ram, trespassed into the house required clarification. The clarification sought to be added was that Sh. Babu Ram though being a tenant of the whole premises was himself in occupation of the first floor of the house whereas the ground floor he had sub-let, assigned or otherwise parted with possession in favour of the respondent, Shanti Sarup Verma.

The net effect of the amendment would be that instead of the averment that the defendant had trespassed in the house upon the death of Sh. Babu Ram, the plaintiff now wanted to aver that the defendant was in possession of the ground floor which had been sub-let , assigned to him by Sh.Babu Ram, and upon the death of Sh. Babu Ram, the defendant trespassed on the first floor, which was in occupation of the deceased Sh. Babu Ram. It was further sought to be averred that the occupation of the ground floor by the defendant upon the death of Sh.Babu Ram also became unauthorised. The date of death of Sh. Babu Ram was also sought to be corrected.

(III)Reply to the said amendment application was filed objecting to the same on the ground that it sought to change the very nature of the case and the plaintiff could not be permitted to do the same.

(3) The learned Sub-Judge vide the impugned order held that the plea now sought to be raised is not at all inconsistent with the earlier case set up by the plaintiff and it was only an elaboration and explanation to plaintiff's case which would help in solving the controversy between the parties and for effectual adjudication in the matter. The amendment, therefore, was allowed subject to cost of Rs.50.00 .

(4) Mr. K.L.Budhiraja, counsel for the petitioner, submitted before me that the learned Sub-Judge, by allowing the amendment has permitted the plaintiff to change the very nature and complexion of his case. He argued that the respondent/plaintiff had instituted a suit, wherein the premises were described as the whole house. The petitioner in defense filed his written statement supported with documents which showed his continuous and hostile possession for the last over 30 years of the premises. The respondent/plaintiff confronted with this situation found the edifice of the case built on the ground of trespass, collapsing before him. He, therefore, sought to introduce the inconsistent plea of late Sh. Babu Ram having sub-let the ground floor to the petitioner and petitioner having trespassed into the first floor of the premises on the death of Sh. Babu Ram Learned counsel submitted that it is not the respondent/plaintiff's case that certain facts came to his knowledge subsequently. There was no justification as to why the respondent/plaintiff should be permitted to change his case of petitioner having trespassed into the premises upon the death of Sh. Babu Ram.

(5) Learned counsel relied on Ma.Shwe Mya Vs.Maung Mo Hnaung (AIR 1922 Privy Council 249. The privy council in this case observed,"All rules of Courts are nothing but provisions intended to secure to the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but none -the- less no power has been given to enable one distinct cause of action to be substituted for another , nor to change, by amendment, the subject matter of the suit , "In the case cited plaintiff had filed a suit for specific performance of a verbal agreement of 1912, by which the defendant had agreed for transfer of certain land for oil wells in place of earlier agreement of 1903. The Court found that when the plaintiff could not prove the verbal agreement of 1912 , it sought to amend the plaint by claiming damages for breach of the contract of 1903. It would be seen that the amendment was disallowed as the petitioner, who had filed a suit for specific performance on the basis of a verbal agreement of 1912, wanted to change it to a suit for damages for breach of contract, based on an earlier agreement of 1903. The Court would not permit a new case to be made out . The case is clearly distinguishable on facts as in the instant case the suit is for possession and is based on title and there is no amendment sought in that regard.

(6) Learned counsel next relied on Bhagavatula Gopalakrishnamurthi & Ors. Vs. Dhulipalla Sreedhara Rao & Anrs in support of his contention that facts which were available to the plaintiff but not stated in original plaint could not be allowed to be stated by amendment since permitting the plaintiff to state such facts would amount to making out a case which was available but had not been pleaded. Learned counsel also relied on Desai Narshiprasad Lakhshmiprasad Vs. Desai Vidutray Yahwantprasad & Ors (AIR 1954 Saurashtra 66) in support of his contentions that an amendment is to be refused if it introduced a totally new and inconsistent case or completely alters the cause of action. Learned counsel argued that the cause of action for the suit was the alleged trespass by the petitioner in the whole property. This was sought to be changed to petitioner being inducted as sub-tenant by the deceased tenant in the ground floor and , thereafter becoming unauthorized occupant and allegation of trespass being confined to first floor. He thus argues that respondent has completely altered the case and changed its complexion. Reliance was also placed on K.C. Taneja Vs. Pramod Kumar Taneja . In the cited case, the plaintiff had filed a suit for possession and mesne profits alleging the defendant to be his son, who with his family had been permitted to reside in the house. By way of amendment, the plaintiff sought to plead that the defendant was not the son of the plaintiff in view of the alleged adoption of the defendant by his sister and , therefore, the defendant had no right or entitlement to the suit property even if it was held by the Court to be an ancestral property.

(7) I have carefully considered the submissions made and the authorities cited. There is no dispute with the proposition that the amendments which set up a totally new and inconsistent case or introduce a different and new cause of action and which facts were already in knowledge, the amendment ought not to be allowed . The cases cited by the learned counsel for the petitioner are clearly distinguishable on facts. The question to be considered in the present case is whether the learned Sub-Judge acted with material irregularity in allowing the amendment application and whether the amendment introduces a new or inconsistent case or changed the entire complexion of the case ? The suit of the plaintiff/respondent is for possession of the premises on the ground of the respondent being the owner . It is the respondent's case that late Sh. Babu Ram was the tenant and the petitioner /defendant had trespassed into the premises and is in illegal and unauthorized occupation. The amendment only elaborates and explains that the alleged trespass by the petitioner was confined to the first floor of the premises. The ground floor was sub let by Sh. Babu Ram, to the petitioner who upon the former's death became unauthorized occupant. This variation and clarification cannot be said to be completely altering the case or setting up a new case. It does not cause any prejudice to the petitioner's plea or defense of being owner by adverse possession. It is now fairly well - settled that amendments, which are necessary for the adjudication of the matter in controversy and are bonafide sought, should be liberally allowed unless they defeat any right accrued in favour of the defendant. In the present case, as noticed above, no prejudice is caused to the petitioner, whose stand is that he is owner by adverse possession. The respondent's suit for possession, on the other hand , is based on title and there is no change with regard to the nature of the said suit. The suit is at initial stage and the amendment which cannot be said to be a malafide one and is necessary for adjudication of the matter in controversy deserves to be allowed. The view taken by the learned Sub-Judge is a plausible view. The impugned order cannot be said to be vitiated by any material irregularity or error of jurisdiction calling for interference in revisional jurisdiction. The amendment that has been allowed would sub serve the ends of justice and result in an effective adjudication of the matter in controversy giving the parties fullest opportunities to prove their case on merits. Revision petition has no merit is dismissed.