Munshi Ram vs Rakesh & Ors
2023 Latest Caselaw 19753 P&H

                                                        Neutral Citation No:=2023:PHHC:145212




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           THE HIGH COURT OF PUNJAB AND HARYANA AT
                        CHANDIGARH
                                                                   CR-4998-2013

                                                       Reserved on: 03.10.2023
                                                  Pronounced on: 15.11.2023

Munshi Ram                                                    ...Petitioner
                                 VERSUS

Rakesh and others                                             ...Respondents


CORAM : HON'BLE MR. JUSTICE VIKRAM AGGARWAL

Present:     Mr. Sukhandeep Singh, Advocate
             for the petitioner.

             Ms. Deepika Sood, Advocate
             for respondents No.1 to 3.

             ****

VIKRAM AGGARWAL, J

1. The present revision petition, preferred under Article 227 of the

Constitution of India, assails the order dated 26.07.2013 (Annexure P-6),

passed by the Court of Civil Judge (Junior Division), Nuh vide which the

application filed by respondent-defendant No.3 Naval Singh for amendment

of written statement was allowed.

2. The petitioner-plaintiff filed a suit for possession with

consequential relief of permanent injunction. The petitioner-plaintiff and

respondents-defendants No.4 to 6 are real brothers and oral family

settlement was pleaded amongst the brothers. The case set up was that the

land comprised in Khasra No.28 had fallen to the share of the petitioner-

plaintiff and the land comprised in Khasra No.86 had fallen to the share of

respondents-defendants No.4 to 6. The land comprised in Khasra No.28

measured 17 marlas (hereinafter referred to as 'the disputed land'). It was

alleged that the respondents-defendants No.1 to 3 were threatening to take

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forcible possession of the disputed land. During the pendency of a

previously instituted suit by the son of the petitioner-plaintiff, the

respondents-defendants No.1 to 3 had taken forcible possession of the

disputed land and had illegally started raising construction. Accordingly, the

suit for possession and permanent injunction was filed.

2(i) The suit was resisted by the respondents-defendants No.1 and 2.

Though respondents-defendants No.1 and 2 filed a joint written statement

(Annexure P-2) and respondent-defendant No.3 filed his own separate

written statement (Annexure P-3), the stand taken in both the written

statements was the same. The previous suit filed by Kishan Singh son of the

petitioner-plaintiff was pleaded in both the written statements stating that in

view of the same, the present suit was not maintainable. It was averred that

the respondents-defendants No.1 to 3 were in possession of the disputed land

for the last more than 80 years. Certain preliminary objections with regard

to cause of action, locus standi, the suit being barred by limitation etc. were

raised. On merits, the family settlement etc. was denied and it was reiterated

that the respondents-defendants No.1 and 2 were in actual physical and

continuous possession of the disputed land for the last more than 80 years

and had, therefore, become owners of the disputed land by way of adverse

possession. In the written statement filed by respondent-defendant No.3, a

counter claim was set up. A decree of declaration was sought to the effect

that the respondent-defendant No.3 had become the owner of the disputed

land by way of adverse possession. A decree of permanent injunction

restraining the petitioner-plaintiff from dispossessing the respondent-

defendant No.3 from the disputed land was also sought.

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2(ii)        Issues were framed.            Trial commenced.     Evidence of the

petitioner-plaintiff concluded. At the stage of evidence of the respondents-

defendants, an application under Order 6 Rule 17 CPC (Annexure P-4) was

moved by the respondent-defendant No.3 for amendment of the written

statement. A stand was taken that the petitioner-plaintiff and brothers of

respondent-defendant No.3 were co-sharers alongwith the respondent-

defendant No.3 in Khasra No.37 and that the parties to the suit were

successors of common ancestors Ghasi. It was averred that respondent-

defendant No.3 had raised his residential house in Khasra No.37. It was also

pleaded that adjacent to Khasra No.37 was Khasra No.86 which was under

the ownership of the petitioner-plaintiff and his brothers. It was also averred

that the facts pleaded in the written statement had come to the notice of the

respondent-defendant No.3 when he engaged another counsel, who disclosed

the contents of the written statement while preparing for the evidence.

Accordingly, certain amendments, as set out in the application were sought

to be introduced in the written statement. The said application was opposed

by way of a reply (Annexure P-5), filed by the petitioner-plaintiff.

3. By way of the impugned order dated 26.07.2013 (Annexure P-

6), the application was allowed leading to the filing of the present revision

petition.

4. I have heard learned counsel for the parties and have perused

the paper book.

5. Learned counsel for the petitioner-plaintiff submitted that the

impugned order vide which the application for amendment in the written

statement was allowed, is not sustainable. Learned counsel submitted that

totally contrary stand to that taken in the original written statement was

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sought to be taken in the amended written statement which would not be

permissible. Learned counsel submitted that the respondent-defendant No.3

could not be permitted to take a diametrically opposite stand by way of an

amendment and that too at a belated stage when the entire evidence of the

petitioner-plaintiff had been concluded. Learned counsel referred to the

provisions of Order 6 Rule 17 CPC and submitted that the amendment was

introduced by the legislature with a specific purpose in mind and by

allowing the application, the said purpose had been defeated. Learned

counsel placed reliance upon the judgment of a Coordinate Bench of this

Court in Palak and another versus Gurdeep Singh 2019 (3) R.C.R. (Civil)

358.

6. On the other hand, learned counsel for the respondent-

defendant No.3 submitted that there is no illegality or infirmity in the

impugned order. It was submitted that the defendants could always take up

inconsistent pleas in the written statement and that the parameters for the

amendment of a plaint were entirely different from that of a written

statement. Reference was made to the original written statement and the

application for amendment of the written statement and it was submitted that

the allowing of the application would not cause any prejudice to the

petitioner-plaintiff. In support of his contentions, learned counsel relied

upon the judgment of Hon'ble Supreme Court of India in Usha Balashaheb

Swami & Ors. Versus Kiran Appaso Swami & Ors. 2007 (2) R.C.R. (Civil)

830, Sushil Kumar Jain versus Manoj Kumar & Anr. 2009 (3) R.C.R.

(Civil) 899 as well as the judgment of a Coordinate Bench of this Court in

Sagar Singh Slathia versus Surinder Pal Singh 2009 (3) R.C.R. (Civil) 37.

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7. I have considered the submissions made by learned counsel for

the parties.

8. Order 6 Rule 17 lays down as under:-

"Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

A plain reading of the provision shows that the Court can allow

amendment in pleadings at any stage of the proceedings. It also lays down

that all such amendments which may be necessary for the purpose of

determining the real question in controversy can be made. The proviso

provides that no application for amendment would be allowed after the trial

has commenced, unless the Court comes to the conclusion that in spite of

due diligence, the party could not have raised the matter before the

commencement of the trial.

9. It is settled law that Courts must be liberal in granting the

prayer for amendment, if the Court is of the view that if such an amendment

is not allowed, a party, who has prayed for such an amendment shall suffer

irreparable loss and injury. It is also well settled that the power to allow an

amendment is undoubtedly wide and may be appropriately exercised at any

stage in the interests of justice, notwithstanding the law of limitation. In the

case of M/s Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91, the

Hon'ble Apex Court laid down the following principles:-

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"4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its Counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."

10. In Life Insurance Corporation of India Vs. Sanjeev Builders

Private Limited and another 2022 AIR (SC) 4256, the Hon'ble Apex Court

summed up the principles qua amendment of pleadings. It was laid down 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

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(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

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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)"

11. In Revajeetu Builders & Developers Vs. Narayanaswamy &

Sons & others, decided on 09.10.2009, in Civil Appeal No.6921 of 2009,

the Hon'ble Apex Court, while examining the entire law on the subject laid

down certain principles qua amendment of pleadings:-

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide?

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(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

12. In so far as the law with regard to amendment of written

statement is concerned, the same is well settled that the parameters for

amendment of a plaint and that of a written statement are entirely different.

In the case of Usha Balashaheb Swami & Ors. Versus Kiran Appaso

Swami & Ors. (supra), the Hon'ble Apex Court laid down that an

amendment in pleadings could be permitted at any stage of the proceedings

if the Court was of the view that such amendments may be necessary for

determining the real question in controversy between the parties. It was held

that it is also well settled that the Court should be liberal in granting the

prayer for amendment of pleadings unless serious injustice or irreparable

loss is caused to the other side. It was further held that in so far as the

amendment of written statement is concerned, the principles for amendment

of a plaint and that of a written statement stand on different footings. It was

held that addition of a new ground of defence or substituting or altering a

defence or taking inconsistent pleas in the written statement would not be

objectionable whereas adding, altering or substituting a new cause of action

in the plaint may be objectionable. A similar view was taken by the Hon'ble

Apex Court in the case of Sushil Kumar Jain versus Manoj Kumar & Anr.

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(supra). Reference was made by the Hon'ble Apex Court to the judgment in

the case of Baldev Singh Versus Manohar Singh 2006 (3) RCR (Civil) 844.

13. Reverting to the facts of the present case, the suit filed by the

petitioner-plaintiff pertained to the possession of the petitioner-plaintiff over

land comprised in Khasra No.28. The possession of this land was stated to

have been taken over by the respondents-defendants No.1 to 3 and suit for

possession was filed to regain possession of the disputed land. The original

stand of the respondents-defendants was that they had become owners in

possession of the disputed land by way of adverse possession and

accordingly a counter claim was also set up by the respondent-defendant

No.3 seeking a declaration in this regard. By way of the amendment,

initially a totally different stand was taken stating that the respondents-

defendants/defendant No.3 and his brothers were co-sharers in land

comprising Khasra No.37 which was adjacent to Khasra No.86. The plea of

the adverse possession was withdrawn and so was the counter claim.

Subsequently, in an affidavit filed by the respondent-defendant No.3, it was

stated that the appellant-defendant No.3 had rights in land comprising

Khasra No.28 also.

14. No doubt, the respondent-defendant No.3 took a contradictory

stand in the application for amendment of the written statement and

accordingly in the amended written statement. However, it has to be borne

in mind that the petitioner-plaintiff is concerned only with land comprising

Khasra No.28. It was his positive case that possession of the same was

taken over by the respondents-defendants. The petitioner-plaintiff would not

be concerned with land comprising Khasra No.37. Accordingly, in the

considered opinion of this Court, the amendment would not harm the interest

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of the petitioner-plaintiff. In any case, the petitioner-plaintiff would have to

prove his case by leading cogent evidence especially the issues in which the

onus is upon him. Similarly, the respondents-defendants would have to

prove their stand. The petitioner-plaintiff would get an opportunity to repel

the stand taken by the respondents-defendants. As has been laid down by

the Hon'ble Apex Court in the judgments referred to in the preceding

paragraphs, the defendant can very well take inconsistent pleas in the written

statement and the test is that the said amendments should not cause any

prejudice to the plaintiff. In the considered opinion of this Court, no

prejudice would be caused to the petitioner-plaintiff by way of the

amendment sought to be introduced in the written statement. Infact, the

pendency of this revision petition before this Court for the last 10 years has

definitely caused prejudice to the petitioner-plaintiff. The suit itself might as

well have concluded by this time. Infact, the entire litigation may have

come to an end.

Be that as it may, for the reasons, aforementioned, this Court

does not find any illegality in the impugned order. In view of the same, the

present revision petition is found to be devoid of merit and is accordingly

dismissed.

                                                    (VIKRAM AGGARWAL)
                                                          JUDGE
Pronounced on:       15.11.2023
mamta


             Whether speaking/reasoned                 :         Yes/No
             Whether reportable                        :         Yes/No




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