Devmani vs State & Ors
2023 Latest Caselaw 10487 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 379/2023 Decided on: 28.07.2023

.

    Devmani                             ...Petitioner





                                     Versus





    State & Ors.       ....Respondents.

...........................................................................................

Coram Ms. Justice Jyotsna Rewal Dua, Judge

Whether approved for reporting?1 Yes.

For the petitioner: Mr. G.R. Palsra, Advocate.

For the respondents: Mr. Varun Chandel, Additional Advocate

General.

Jyotsna Rewal Dua, Judge

Notice. Mr. Varun Chandel, learned Additional Advocate

General, appears and waives service of notice on behalf of the

respondents.

2. Heard.

3. Application moved by the petitioner under Order 6 Rule

17 read with Section 151 of the Code of Civil Procedure (CPC)

seeking amendment of the plaint has been dismissed by the

learned Trial Court on 19.01.2023.

Whether reporters of the local papers may be allowed to see the judgment?

The petitioner has assailed the aforesaid order in the

instant petition invoking jurisdiction under Article 227 of the

.

Constitution of India.

4. Suit was instituted by the petitioner against the

respondent for declaration, permanent prohibitory and mandatory

injunction. The petitioner/plaintiff led his evidence in the civil suit.

Respondents/defendants were to adduce their evidence. At that

stage, an application under Order 6 Rule 17 read with Section 151

CPC for amendment of the plaint was moved. The plea taken was

that during the pendency of the suit, judicial pronouncements came

holding that plea of adverse possession can be taken by the

plaintiff as well as by the defendant. Owing to the judicial

pronouncements, plaintiff prayed for amending his plaint by adding

alternate plea of adverse possession in the relief clause.

5. Hon'ble Apex Court in AIR 2022 SC 4256 (Life

Insurance Corporation of India Vs. Sanjeev Builders Private

Limited & Anr.) summed up the law relating to amendments as

under:-

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory,

.

as is apparent from the use of the word "shall", in the latter part of

Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed.

(i) if the amendment is required for effective and proper

adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting

in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time

barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred

cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended

.

to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of

limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to

the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is

required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would

have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage

which it had secured as a result of an admission by the party

seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between

the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)."

The case file shows that previously also the

petitioner/plaintiff had moved an application under Order 6 Rule 17

CPC for amendment of the plaint, wherein petitioner/plaintiff wanted

to strike off the issue framed in the civil suit regarding plea/relief of

adverse possession claimed by him. Application was allowed by the

learned Trial Court on 23.02.2019 and issue No.1 framed in the civil

.

suit on the basis of plea of adverse possession originally taken by

the petitioner/plaintiff, was struck off. The parties proceeded with

the civil suit. Plaintiff concluded his evidence. At the stage of

leading defendants' evidence, plaintiff became wiser and on

06.01.2022 moved another application under Order 6 Rule 17 CPC

seeking to undo what he had prayed for and was allowed in his first

application under Order 6 Rule 17 CPC.

The plea of adverse possession taken by the

petitioner/plaintiff in his original plaint was struck off by the learned

Trial Court on 23.02.2019 at the instance of the petitioner/plaintiff by

allowing his application moved under order 6 Rule 17 CPC. Three

years later plaintiff, yet again moved another amendment

application now seeking to incorporate the same plea of adverse

possession, which he had cautiously discarded earlier. Irrespective

of alleged shift in the judicial view as the reason put forth for

seeking the amendment, plaintiff cannot be permitted to take four

steps forward and then two steps backwards at his own leisure.

Due diligence is missing. Litigants cannot be allowed to play with

sanctity of judicial procedures at their whims & fancies.

Petitioner/plaintiff cannot be permitted to undo in his second

amendment application what he had specifically requested for and

was allowed by the learned Trial Court in his first amendment

application that too at the stage of leading defendants' evidence.

.

Also the factual plea of adverse possession now being sought to be

incorporated would change the nature of suit. This plea cannot be

permitted in the given facts. It would cause prejudice to the

respondents/defendants. Learned Trial Court has not committed

any error in dismissing the application.

For the foregoing reasons, I find no merit in the instant

petition and the same is dismissed. Pending miscellaneous

application(s), if any, shall also stand disposed of.

Jyotsna Rewal Dua

Judge

28th July 2023

(rohit)