Punjab-Haryana High Court
Bhajan Singh vs Manohar Lal And Others on 19 September, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
CR-4699-2024 (O&M) sl:
120 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-4699-2024 (O&M)
Date of decision : 19.09.2024
Bhajan Singh Petitioner
versus
Manohar Lal&ors, ae Respondents
CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN
KK
Present :- Mr. Satbir Rathore, Advocate
for the petitioner.
ie 2 2k
PANKAJ JAIN, J. (ORAL)
1 Challenge is to order dated 31.07.2024 (Annexure P-6)
passed by Civil Judge (Jr. Division), Mukerian whereby application
filed by plaintiffs seeking amendment in the plaint stands allowed.
2 Plaintiffs filed a suit seeking possession by way of partition
by mets and bounds of the land as described in the head note of the
plaint claiming the same to be joint holding of the plaintiffs as well as
the defendants.
3 Defendant No.1 opposed the suit filing written statement
wherein oral family settlement has propounded and it is being claimed
that as per the same they are in exclusive possession of their separated
share. Present application under Order 6 Rule 17 CPC was filed seeking
amendment in the plaint by incorporating Khasra No.389 (0-17) along
with khasra No. 283 (0-9) and the circumstances which led to earlier
POOJA SHARMA
2024.09.24 16:33
CR-4699-2024 (O&M) m2u
lapse have been explained in para No.2 of the application which reads as
"2. That after the death of father of the plaintiff the vide Mutation No.
1766 the property being 1/24 share in the name of Madan Lal and
1/168 Share in the name Manohar Lal and 1/168 share in the name of
Puspa Devi daughter of Kehar Singh has corporated in the
Jamabandi year 2017-18 FEx-P2 and Ex-P2/A, so for the proper
adjudicating of the present case in the Khasra No. 389 is necessary to
add in the plaint along with Khasra No. 283(0-9) which already
4 Application was opposed by defendant No.1-petitioner.
The opposition was merely on the ground that the fact ought to be
incorporated by way of amendment was already in the knowledge of the
respondents-plaintiffs and thus amendment cannot be allowed in view of
the proviso appended to Order 6 Rule 17 CPC.
5 The application stands allowed vide impugned order
holding that the proposed amendment would not cause any prejudice to
the defendants and thus in terms of ratio of law laid down by Apex
Court in the case of Rajesh Kumar Aggarwal & ors. Vs. K.K.Modi &
ors., (2006) 4 SCC 385 the same needs to be allowed.
6 Counsel for the petitioner while attacking the impugned
order submits that the Trial Court erred in allowing the application
without considering the import of proviso attached to Order 6 Rule 17
CPC. The fact which was already in the knowledge of a party seeking
amendment cannot be allowed to be incorporated by way of amendment
until and unless it is shown that the same could not be incorporated
despite exercising due diligence.
CR-4699-2024 (O&M) m3:
7 I have heard learned counsel for the petitioner and have
gone through records of the case.
8 Law with respect to amendment in the pleadings has been
elaborately laid down by Supreme Court in the case of Life Insurance
Corporation of India V. Sanjeev Builders Private Limited and
another, Civil Appeal No.5909 of 2022 dated 01.09.2022 and the
proposition was culled out observing as under :-
"70......(i) 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 Grder Vi Rute £7 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
(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,
(ti) 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
POOJA SHARMA should avoid a hypertechnical approach, and is ordinarily required
order/judgment.
CR-4699-2024 (O&M) m4:
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 ¥ijay Gupta v. Gagninder
Kr. Gandhi & Ors, 2022 SCC OnLine Del 1897)
9 In view of the aforesaid parameters the litmus test for
adjudicating upon application seeking amendment is :
POOJA SHARMA
2024.09.24 16:33
CR-4699-2024 (O&M) te
"Whether the amendment is necessary for proper
adjudication of the matter in hand or not and whether such
amendment shall cause any prejudice to the defendants or
not".
10 There cannot be any dispute with respect to import of
proviso appended to Order 6 Rule 17 CPC. Trite it is that a proviso
cannot arrest the mandate of the main provision. Applying the aforesaid
parameters to the present case, this Court finds that the plaintiff is
already before the Court seeking decree of possession by way of
partition. It has been claimed that Khasra No.389 was joint ownership
of the parties and inadvertently could not be incorporated at the initial
stage. Defendants in their written statement have propounded family
settlement. Thus, incorporation of a Khasra number by way of
amendment would neither change or alter the nature of the suit nor shall
cause any prejudice to the defendants but shall only aid in adjudicating
the actual lis between the parties and shall avoid the multiplicity of the
litigation.
11 In view of above, this Court does not find any reason to
interfere in the impugned order.
12 Revision stands dismissed.
(PANKAJ JAIN )
JUDGE
19.09.2024
Whether speaking/reasoned Yes/No
