Punjab-Haryana High Court
Brij Mohan Kapoor vs Pushpa Mahajan on 9 September, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:118012
CR-2908-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(117)
CR-2908-2024
Date of Decision: - 09.09.2024
Brij Mohan Kapoor
....Petitioner
Versus
Pushpa Mahajan
.....Respondent
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Dinesh Mahajan, Advocate,
for the petitioner.
****
VIKAS BAHL, J. (ORAL)
1. Present revision petition has been filed under Article 227 of
the Constitution of India for setting aside the impugned order dated
13.03.2024 passed by the trial Court vide which the application filed by
the respondent/plaintiff seeking amendment of the plaint has been
allowed.
2. Brief facts of the case are that the respondent-plaintiff had
filed a suit for mandatory injunction directing the defendant to close the
doors opened at point X, Y & Z on first, second and third floor as shown
in red colour in the building marked as ABCD in blue colour in the site
plan annexed with the plaint. A written statement was filed by the
defendant-petitioner in which it was averred that the plaintiff was a tenant
in the shop in dispute and thus, the possession of the plaintiff was not
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disputed. On 25.05.2022, an application was filed by the
respondent/plaintiff for amendment of the plaint and in the said
application, it was stated that the case was fixed for the evidence of the
plaintiff and during the pendency of the suit, about a week before filing
the application, the defendant had refused to allow the plaintiff from
raising a wall from point C to point B up till the third floor of the building
in question and in view of the said fact, the following amendments in the
plaint were sought:-
"a) Suit for permanent injunction restraining the
defendant from obstructing the plaintiff from raising wall from
point C to B up till third floor of the building of defendant so as to
block the ventilator and openings at point XYZ.
b) In the fourth line of para 4 of plaint after the words
"to file present suit" following para needs to be added "And a
week ago also plaintiff had requested the defendant to not
obstruct him from raising wall from point B to see up till third
floor so as to close the openings at point XYZ but the defendant
had refused to allow the plaintive to do the same due to which
cause of action had accrued to the plaintive to seek relief of
permanent injunction against the defendant.
c) In the last of prayer clause following para needs be added"
AND decree for permanent injunction restraining the defendant
from obstructing the plaintiff from raising wall from point C to
point B up till third floor of the building of defendant so as to block
the ventilator and openings at point XYZ"
3. In the reply filed to the said application under Order VI Rule
17 read with Section 151 CPC, the fact that the case was fixed for
evidence of the plaintiff was stated to be a matter of record. The
amendment sought was opposed on merits. The trial Court vide order
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dated 13.03.2024 allowed the said application for amendment of the
plaint and observed that as per the averments made in the application, the
cause of action for permanent injunction arose during the pendency of the
case and thus, there was sufficient ground to allow the said application. It
was further observed that the plaintiff was the master of his suit and thus,
it was for him to choose the relief he wanted to seek against the other
party and since the petitioner/defendant would get an opportunity to file
an amended written statement, thus, no prejudice would be caused to the
petitioner. It is the said order dated 13.03.2024, which has been
challenged in the present revision petition.
4. Learned counsel for the petitioner-defendant has submitted
that as per the case of the petitioner, the respondent is a tenant and a
tenant cannot dictate terms to the landlord and he has no right to raise
construction of any wall over the property/shop, which is under the
tenancy of the respondent. It is submitted that the additional prayer sought
to be made by virtue of the impugned order is not liable to be granted as
the same is meritless and thus the impugned order deserves to be set aside
and the application for amendment deserves to be rejected.
5. This Court has heard learned counsel for the petitioner and
has perused the paper-book.
6. The Hon'ble Supreme Court in the case of "Rajesh Kumar
Aggarwal & Ors. vs. K.K. Modi & Ors." reported as 2006(2) RCR (Civil)
577 had observed that all amendments that may be necessary for
determining the real question in controversy between the parties should be
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allowed and the Court while allowing the amendment should not go into the
correctness or falsity of the case set up in the amendment, as it is not
required to record a finding on the merits of the amendment and the merits
of the amendment are not required to be adjudged at the stage of allowing
the prayer for amendment. The relevant portion of the said judgment is
reproduced hereinbelow:-
"13. The object of the rule is that Courts should try the
merits of the case that come before them and should,
consequently, allow all amendments that may be necessary for
determining the real question in controversy between the
parties provided it does not cause injustice or prejudice to the
other side.
xxx xxx xxx
17. While considering whether an application for
amendment should or should not be allowed, the Court should
not go into the correctness or falsity of the case in the
amendment. Likewise, it should not record a finding on the
merits of the amendment and the merits of the amendment
sought to be incorporated by way of amendment are not to be
adjudged at the stage of allowing the prayer for amendment.
This cardinal principle has not been followed by the High
Court in the instant case.
xxx xxx xxx
Since the Court has entered into a discussion into the
correctness or falsity of the case in the amendment, we have
no other option but to interfere with the order passed by the
High Court. Since it is settled law that the merits of the
amendment sought to be incorporated by way of amendment
are not to be adjudged at the stage of allowing prayer for
amendment, the order passed by the High Court is not
sustainable in law as observed by this Court in Sampath
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Kumar vs. Ayyakannu and Another ,
(2002) 7 SCC 559."
7. In the present case, the respondent/plaintiff had filed a suit
for mandatory injunction directing the defendant/petitioner to close the
doors opened at point X, Y & Z on first, second and third floor. The said
suit was filed in the year 2021. In the written statement, the possession of
the plaintiff/respondent with respect to shop in question was admitted, as
it was stated that the respondent was a tenant in the shop in dispute. The
application for amendment of the plaint under Order VI Rule 17 read with
Section 151 CPC was stated to have been filed at the time when the
plaintiff evidence was in progress and the said fact has not been disputed
in para No.1 of the reply (Annexure P-4), on merits, filed by the petitioner
to the said application. It was pleaded in para 3 of the said application that
during the pendency of the case, a week before filing the said application,
the defendant had refused to allow the plaintiff from raising a wall over
the roof of the shop and accordingly, the amendment was sought for
adding an additional relief, the cause of action of which, as per the case of
the respondent accrued during the pendency of the case. The trial Court in
the impugned order had also observed that the cause of action to seek the
additional relief had accrued during the pendency of the suit. In a lis
between the plaintiff and the defendant, it is open to the plaintiff to claim
all the reliefs, more so, when as per the case of the plaintiff, the cause of
action to seek an additional relief has accrued during the pendency of the
suit. The same would help in adjudicating all the disputes between the
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parties.
8. Primary challenge to the amendment has been made by the
petitioner by raising pleas on the merits of the additional prayer made and
by highlighting the fact that the said prayer is not liable to be allowed. As
has been observed by the Hon'ble Supreme Court in the above-said
judgment, the merits of the amendment is not to be adjudged at the stage
of allowing the application for amendment. Merely allowing the
plaintiff/respondent to make an additional prayer does not amount to
allowing the said prayer and the said aspect is to be considered at the time
of final adjudication of the case. Further, an opportunity has been granted
to the petitioner/defendant to file an amended written statement, and
moreover, the delay, if any, caused on account of the said amendment,
would primarily harm the plaintiff, as it is the suit of the plaintiff for
mandatory injunction which would stand delayed.
9. In view of the above-said facts and circumstances, the
impugned order allowing the amendment deserves to be upheld and the
present revision petition being meritless, deserves to be dismissed and is
accordingly dismissed.
( VIKAS BAHL )
September 09, 2024 JUDGE
naresh.k
Whether reasoned/speaking? Yes
Whether reportable? Yes
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