Abdul Rahman Wani & Anr vs Shabir Ahmad Rather & Anr
2023 Latest Caselaw 569 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR



                           CM(M) No. 101/2022
                            CM No. 3184/2022

                                                       Reserved On: 1st of May, 2023
                                                     Pronounced On: 9th of May, 2023




Abdul Rahman Wani & Anr.
                                                              ... Petitioner(s)
                               Through: -
                         Mr Syed Irfan, Advocate.

                                     V/s

Shabir Ahmad Rather & Anr.
                                                            ... Respondent(s)

Through: -

Mr Aftab Ahmad, Advocate.

CORAM:

Hon'ble Mr Justice Rajnesh Oswal, Judge (JUDGMENT)

01. Through the medium of this Petition, filed under Article 227 of the Constitution of India, the Petitioners have impugned the Order dated 28th of December, 2021 passed by the Court of learned Munsiff/ Civil Judge, Junior Division, Aishmuqam (hereafter referred to as 'the trial Court'), whereby the learned trial Court has allowed the application filed by the Plaintiffs/ Respondents herein for seeking amendment of the Plaint in the Suit captioned as 'Shabir Ahmad Rather & Anr. v. Abdul Rahman Wani & Anr.'.

02. It is stated that a Suit for declaration and consequential relief for injunction, titled above, was filed by the Plaintiffs/ Respondents herein, wherein they sought declaration to the effect that they be declared as owners in possession of land measuring 02 Kanals and 07 Marlas, comprising Survey No. 404 situated at Manzigam, Pahalgam, with a further CM(M) No. 101/2022;

CM No. 3184/2022

prayer for issuance of a decree of permanent and prohibitory injunction, thereby restraining the Defendants/ Petitioners herein from interfering into their peaceful possession over the Suit land and also restraining the Defendants/ Petitioners from dispossessing the Plaintiffs/ Respondents herein from the Suit land. The Defendants/ Petitioners herein caused their appearance before the learned trial Court and filed an application in terms of Order 39 Rule 4 of the Code of Civil Procedure (CPC) seeking modification, cancellation and variation of ex-parte interim Order dated 7th of September, 2018, directing for maintenance of status quo on spot.

03. It is further stated that in order to prolong the litigation, the Plaintiffs/ Respondents herein laid a motion under Order 6 Rule 17 of the Code of Civil Procedure (CPC) before the learned trial Court, thereby seeking amendment of the Plaint. The Defendants/ Petitioners herein filed detailed Objections to the aforesaid application, however, the learned trial Court, vide Order dated 28th of December, 2021, allowed the application filed by the Plaintiffs/ Respondents herein for amendment of the Plaint.

04. After the application was disposed of by the learned trial Court, the Plaintiffs/ Respondents herein are stated to have filed the additional Plaint with additional facts which were in contradistinction to the original Plaint and the proposed amended Plaint, but the learned trial Court, without applying its mind, has taken the same on record. It is also stated that the learned trial Court, after passing of the ex-parte Order dated 7th of September, 2018, directing for maintenance of status quo, has not disposed of or even heard the arguments in the application filed by the Defendants/ Petitioners herein in terms of Order 39 Rule 4 of the Code of Civil Procedure (CPC).

05. Faced with the above position, the Petitioners have assailed the aforesaid Order dated 28th of December, 2021 passed by the learned trial Court, inter alia, on the ground that the learned trial Court has committed a grave illegality, as the application filed by the Plaintiffs/ Respondents herein in terms of Order 6 Rule 17 of the Code of Civil Procedure (CPC) CM(M) No. 101/2022;

CM No. 3184/2022

did not spell out as to what was sought to be amended, besides the so-called proposed amended Plaint was not in consonance with the law governing the field. It has further been submitted that the amendment sought to be entertained was apparently time barred by the law of limitation, as the sale deed that was sought to be challenged was executed in the year 1982 and that the father of the Plaintiffs/ Respondents herein was the executant of the said sale deed. It is also stated that the Petitioners have been rendered defenceless as the Plaintiffs/ Respondents herein are filing altogether different pleadings before the learned trial Court.

06. Mr Syed Irfan, the learned Counsel appearing on behalf of the Petitioners, vehemently argued that the learned trial Court has permitted the amended Plaint to be brought on record, which was not in consonance with the application seeking amendment of the Plaint and even the amended Plaint was not in accordance with the proposed amended Plaint. He further argued that the plea of limitation raised by the Defendants/ Petitioners herein was also not taken note of by the learned trial Court.

07. Per Contra, Mr Aftab Ahmad, the learned Counsel representing the Respondents, vehemently argued that the present Petition is not maintainable as the Petitioners/ Defendants can file the Written Statement and raise the plea of limitation in their Written Statement before the learned trial Court. He further argued that the plea of limitation is not to be considered by the learned trial Court while deciding the application filed under Order 6 Rule 17 of the Code of Civil Procedure (CPC). It was also urged by the learned Counsel for the Respondents that merely changing the relief part in the amended Plaint filed by the Plaintiffs/ Respondents herein would not cause any prejudice to the Defendants/ Petitioners herein, particularly when all the relevant facts were already pleaded in the Plaint.

08. Heard and perused the record.

09. The Respondents, initially, filed a Suit for declaration and injunction and, in Para No.1 of the Plaint, they pleaded that the land in CM(M) No. 101/2022;

CM No. 3184/2022

question actually belonged to their father and, after his death, the same has devolved upon the Respondents. It was also pleaded by the Respondents that the Petitioners were claiming that the aforesaid land had been purchased by the father of the Petitioner No.1 from the father of the Respondents. The Petitioners, without filing the Written Statement opposing the Suit, laid a motion under Order 39 Rule 4 of the Code of Civil Procedure (CPC) for modification of the ex-parte Order dated 7th of September, 2018 and, along with the said application, copy of the sale deed issued by the District Record Room, Anantnag on 14 th of September, 2018 was also annexed. The Respondents, thereafter, filed an application under Order 6 Rule 17 of the Code of Civil Procedure (CPC) for seeking amendment of the Plaint on the ground that the Petitioners/ Defendants, after the filing of the instant Suit, filed an application before the Additional Deputy Commissioner, Anantnag and then only a sale deed dated 1st of January, 1982 allegedly executed by the father of the Respondents in favour of the father of the Petitioner No.1 surfaced. The Respondents, through the medium of the said application, accordingly, sought leave of the Court to amend the original Plaint filed by them and, along with the said application, the amended Plaint was also annexed. The Petitioners filed their Objections to the said application, thereby pleading that the proposed amendment would give rise to uncalled litigation as the Respondents were out of possession and that the proposed amendment is new and inconsistent with the original Plaint. The learned trial Court, after considering the contentions of the rival parties, allowed the application by virtue of the Order impugned, observing therein that all such amendments, as are necessary for the purpose of determining the real questions involved in the controversy between the parties, are required to be allowed and that the Court should adopt a liberal approach in such circumstances.

10. The first contention raised by the Petitioners herein is that the amended Plaint directed to be brought on record by the learned trial Court vide the Order impugned was not in consonance with the amended Plaint annexed with the application seeking amendment of the original Plaint. A CM(M) No. 101/2022;

CM No. 3184/2022

comparative reading of the proposed amended Plaint and the actual amended Plaint filed after the application for amendment was allowed would reveal that both may be different in wording, but, in essence, the issues raised in the proposed amended Plaint, the original Plaint and the amended Plaint are the same. In fact, in the original Plaint, the Respondents categorically pleaded that the Defendants/ Petitioners herein were claiming to be the owners of land measuring 02 Kanals and 07 Marlas comprising Survey No. 404 situated at Manzigam, Pahalgam, Anantnag. It was only after the Petitioners approached the Additional Deputy Commissioner, Anantnag and filed an application under Order 39 Rule 4 of the Code of Civil Procedure (CPC) before the learned trial Court, that the Respondents came to know about the execution of the sale deed by their father and then only they filed an application under Order 6 Rule 17 of the Code of Civil Procedure (CPC) for seeking amendment of the original Plaint. It is admitted by the Petitioners that the Written Statement has not been filed by them to oppose the Plaint filed by the Respondents. The Respondents, in essence, have assailed the sale deed allegedly executed by their father which surfaced later in point of time and, in the amended Plaint, the Respondents claim declaration of ownership which was already sought by them in the Plaint with a further prayer of declaring the impugned sale deed as null and void. In the proposed amended Plaint, the Respondents had omitted to claim the relief of declaration of ownership which was, however, claimed by them in the original Plaint. Merely claiming the similar relief in the amended Plaint that was already claimed in the original Plaint, but not claimed in the proposed amended Plaint, would not cause any prejudice to the rights and interests of the Petitioners as it would not alter the nature of the Suit in any manner whatsoever. Therefore, this contention raised by the Petitioners is without any substance and, as such, the same is rejected.

11. The other contention of the Petitioners is that the plea of limitation raised by them was not taken note of by the learned trial Court while passing the impugned Order. On a careful perusal of the record, it is evident that the learned trial Court has, though, not specifically dealt with CM(M) No. 101/2022;

CM No. 3184/2022

the issue of limitation, but in the penultimate para of the Order impugned, observed that "if the Plaintiff is entitled to file a fresh Suit on the issue of amendment, then it is not proper to disallow the amendment as it would lead to multiplicity of the proceedings". The Respondents, in their application, had specifically pleaded that they came to know about the sale deed having been allegedly executed by their father only when the Petitioners, after the filing of the instant Suit, filed an application before the Additional Deputy Commissioner, Anantnag.

12. The Hon'ble Apex Court, after taking note of its various earlier pronouncements on the subject, in case titled 'Life Insurance Corporation of India v. Sanjeev Builders Private Limited & Anr.', reported as '2022 AIR (SC) 4256', has held 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).

CM(M) No. 101/2022;

CM No. 3184/2022

(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 hyper-technical 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)."

CM(M) No. 101/2022;

CM No. 3184/2022

13. If the claim of the Respondents is tested on the touchstone of the aforesaid law laid down by the Hon'ble Apex Court, it is found that the delay, alone, cannot be a ground to disallow the prayer for amendment, more particularly, where the aspect of delay is arguable and, under such circumstances, the prayer of amendment can be allowed and the issue of limitation can be separately framed. More so, in the instant case, the Written Statement has not been filed by the Defendants/ Petitioners herein when the application for amendment of the Plaint under Order 6 Rule 17 of the Code of Civil Procedure (CPC) was filed by the Respondents. The Petitioners/ Defendants can object the contents of the Suit by raising all the pleas available to them by filing a detailed Written Statement and, as such, it cannot be said that miscarriage of justice has been occasioned to the Petitioners/ Defendants by allowing the amendment of the Plaint.

14. The case of the Petitioners does not fall within the parameters laid down by the Hon'ble Apex Court in case titled 'Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patel', reported as '(2010) 8 Supreme Court Cases 329', dealing with the scope for exercising power under Article 227 of the Constitution of India, particularly when the factual foundations for claiming the additional relief were already made out in the pleadings by the Respondents and the Petitioners were yet to file the Written Statement.

15. In the light of the aforementioned facts and circumstances of the case and having regard to the law laid down by the Hon'ble Apex Court in the Judgments (supra), as discussed hereinabove, it is clearly evident that no miscarriage of justice has been occasioned to the Petitioners by virtue of the Order impugned. That being so, this Court is of the considered view that the learned trial Court has not committed any jurisdictional error while passing the impugned Order that would warrant any interference by this Court. Accordingly, the present Petition is found to be without any merit. The same is, therefore, dismissed, along with the connected CM(s). Interim direction(s), if any subsisting as on date, shall stand vacated.

CM(M) No. 101/2022;

CM No. 3184/2022

16. The learned trial Court shall, however, expeditiously conduct the trial of the case and decide the application filed by the Petitioners/ Defendants under Order 39 Rule 4 of the Code of Civil Procedure as also the application filed by the Respondents/ Plaintiffs for interim relief within such period as prescribed by the Code of Civil Procedure (CPC).

17. Registry to send a copy of this Judgment to the Court below for information and compliance.

(Rajnesh Oswal) Judge SRINAGAR May 9th, 2023.

"TAHIR"

           i. Whether the Judgment is reportable?                Yes/ No.