Punjab-Haryana High Court
Asha Rani vs Vandana Rani on 20 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:040692
CR-1783-2024 (O&M) 1 2024:PHHC:040692
139 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-1783-2024 (O&M)
Date of decision: 20.03.2024
Asha Rani
....Petitioner
Versus
Vandana Rani
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. J.S.Thakur, Advocate for
Mr. Monty Goyal, Advocate for the petitioner
ANIL KSHETARPAL, J (Oral)
1. In this revision petition, the defendant assails the
correctness of the trial court's order dismissing his application for
permission to amend the written statement as well as the counter claim.
In the counter claim, the petitioner has prayed for the grant of decree for
the specific performance of the agreement to sell. In substance, the
defendant submits that due to inadvertent mistake khasra no.219-355 has
been written in the plaint, which is required to be corrected with khasra
no.319-355.
2. The second proposed amendment is that the date
16.09.2017 is required to be replaced with 06.09.2017. The court below
has refused the permission on the ground that the trial has commenced
and the defendant's evidence is going on. In the opinion of this Court,
the order passed is without application of mind. Such typographical
errors can always be corrected after the decision of the suit under
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Section 153 of the Code of Civil Procedure, 1908. In any case, the
amendments are required to be categorized in various categories
including procedural amendments, errors arising out of typographical or
printing errors and substantive errors. For correcting arithmetical or
clerical mistake, the approach of the court should be liberal, particularly
when such amendments are permitted after the decision of the case. In
the present case, the suit is pending at the trial stage.
3. Reliance can be placed on the judgment of the Supreme
Court in Life Insurance Corporation of India v. Sanjeev Builders
Private Limited and Another 2022 AIR (Supreme Court) 4256. In para
70 of the aforesaid judgment, the Supreme Court has culled out the
following tests, which are required to be applied before allowing the
amendment:-
"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,
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(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 pinpointedly 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.
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(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)"
4. Keeping in view the aforesaid facts, the impugned order is
set aside while permitting the petitioner (defendant) to amend the written
statement and counter claim. This order has been passed without issuing
notice to the plaintiff, hence, she will have the liberty to file an
application for recall of this order.
5. The revision petition stands allowed.
6. All the pending miscellaneous applications, if any, are also
disposed of.
20.03.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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