Champakbhai Shivabhai Patel vs State of Gujarat and Others

Abhilasha Kumari, J.—Rule. Mr. Alpesh M. Bhatt, learned Assistant Government Pleader, waives service of notice of Rule for respondent No. 1 and Mr. Nirzar S. Desai, learned advocate waives service of notice of Rule for respondent No. 2. This petition, under Articles 226 and 227 of the Constitution of India, has been preferred, inter alia, with a prayer to quash and set aside the judgment and order dated 24-1-2013, passed by the learned 2nd Addl. Senior Civil Judge, Bharuch, below the application at Exh. 154, made by the petitioner for amendment of the description of defendant No. 2 (present respondent No. 2), in Special Civil Suit No. 228 of 2002.

The brief facts of the case are that the petitioner/plaintiff filed the Suit on 12-6-2012, against the State of Gujarat (through the Collector) and the Executive Engineer, Canal Yojana Division-4, Bharuch, for damages to the tune of Rs. 3,45,000/-. As per the averments made in the petition, the petitioner is the owner of land bearing Survey No. 19, admeasuring 1.65 Hectare and 95 Aare (i.e., 4 Acre 6 Gunthas), situated at village Tralsa, District Bharuch. The petitioner was cultivating the land uninterruptedly for several years and has invested a great deal of hard work in doing so. Crops of Okra (Bhinda) were sown on the land, which were worth Rs. 2.50 lakhs. However, due to the faulty construction of the slope of the Minor Canal, constructed by defendant No. 2, the land of the petitioner became flooded with water, in July 2001. The petitioner made several requests to the Officers of the respondents to remove the slope and wall of the Minor Canal before the monsoon. However, the requests of the petitioner fell upon deaf ears. Resultantly, the entire crop sown by the petitioner was destroyed by the water from the Minor Canal. The land of the petitioner was also damaged. The petitioner issued a notice to the respondents on 2-9-2001, for damages to the tune of Rs. 3,45,000/-. He also gave a written complaint to defendant No. 2, but no steps were taken to redress his grievances by either of the respondents. The petitioner, therefore, issued a notice u/s 80 of the Code of Civil Procedure, 1908 ("the Code" for short) on 12-9-2001. Subsequently, he filed the above-mentioned Suit for damages, on 12-6-2002.

2.1 Issues were framed and the Suit proceeded further. However, in the cross-examination of defendant No. 2, Executive Engineer, Canal Yojana Division-4, Bharuch, a question was raised that Sardar Sarovar Narmada Nigam Ltd. is not joined as a party defendant. The petitioner, therefore, filed an application at Exh. 154, for amendment in the cause-title of the plaint by adding the words "Sardar Sarovar Narmada Nigam Ltd." above the name of defendant No. 2. According to the petitioner, the said amendment is in the nature of a formal correction in the cause-title of the suit, giving a correct description of defendant No. 2, who is, according to the petitioner, responsible for the payment of damages. However, the said application was rejected by the impugned order passed by the Trial Court, giving rise to the filing of the present petition.

Mrs. Ketty A. Mehta, learned advocate for Ms. Archana R. Acharya, on behalf of the petitioner, has submitted that the application at Exh. 154 was made by the petitioner, merely to correct the description of defendant No. 2 who is the Executive Engineer, Canal Yojana Division-4, Bharuch, working in the Sardar Sarovar Narmada Nigam Ltd. While impleading defendant No. 2, the plaintiff has inadvertently not elucidated that defendant No. 2 is working under the Sardar Sarovar Narmada Nigam Ltd., therefore, the amendment is merely technical in nature and is aimed at giving a better description of defendant No. 2. Had the amendment been allowed, it would neither have changed the nature of the suit nor amounted to adding a new party, as has been held by the Trial Court in the impugned order. It is submitted that the amendment sought by the petitioner is of a nature that would not have prejudiced any of the parties. That the impugned order is contrary to the provisions of Order 6 Rule 17 of the Code, as the amendment sought is related to the controversy between the parties. On the above-grounds, it is submitted that the impugned order be quashed and set aside and the amendment be allowed.

On the other hand, Mr. Alpesh M. Bhatt, learned Assistant Government Pleader for defendant No. 1 and Mr. Nirzar S. Desai, learned advocate for defendant No. 2 have supported the order of the Trial Court by submitting that the said order does not suffer from any error of law or jurisdiction.

This Court has heard learned counsel for the respective parties and perused the averments made in the petition, the documents on record and the contents of the impugned order.

Before discussing the impugned order, it would be relevant to consider the provisions of Order 6 Rule 17 of the Code, which read as below:

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.

From the above, it is clear that the Court may, at any stage of the proceedings, permit a party to alter or amend his pleadings as may be necessary for the purpose of determining the real questions in controversy between the parties. The amendment sought by the petitioner vide the application at Exh. 154 is a harmless one, and more of a technical nature, inasmuch as by the said amendment the petitioner seeks to elucidate the correct description of defendant No. 2. In the Suit defendant No. 2 has been impleaded as Executive Engineer, Canal Yojana Division-4, Bharuch. However, it has not been clarified under which Agency/Department/Body the said defendant Executive Engineer is serving. The Suit is for recovery of damages, for which Sardar Sarovar Narmada Nigam Ltd. would be liable if the Suit is decreed, and not defendant No. 2 personally, as he is an employee of Sardar Sarovar Narmada Nigam Ltd. This very objection was raised by defendant No. 2 in his cross-examination. Defendant No. 2 has stated in cross-examination that as Sardar Sarovar Narmada Nigam Ltd. is not a party to the Suit, he is not liable to pay the damages. The Suit is for recovery of damages from the defendants/respondents as, according to the petitioner, his land and standing crops were destroyed due to flooding of water due to a defect in the slope and wall constructed by the Sardar Sarovar Narmada Nigam Ltd., in the Minor Canal. It is, therefore, apparent that the amendment sought by the petitioner is directly relatable to the controversy between the parties.

A perusal of the impugned order goes to show that the Trial Court has rejected the application for amendment mainly on the ground that by suffixing or prefixing the words "Sardar Sarovar Narmada Nigam Ltd." after or before the name of defendant No. 2, it would amount to adding a new party. The Trial Court appears to have been at pains to explain the meaning of the word "description" and has quoted the Dictionary meaning thereof in the impugned order. According to the Trial Court, by adding the words "Sardar Sarovar Narmada Nigam Ltd." before or after the name of defendant No. 2, it would not amount to "description" but would amount to bringing a totally independent entity on record.

Having perused the order of the Trial Court minutely, this Court is of the considered view that the Trial Court has misunderstood the intent and purport of Order 6 Rule 17 of the Code, as well as of the nature of the amendment sought by the petitioner in the Suit. It is a settled position of law that the Court is empowered to grant an amendment of the pleadings at any stage of the proceedings, provided that such amendments are necessary for the purpose of determining the real questions in controversy between the parties. In the present case, it has come on record that defendant No. 2 has stated in cross-examination that, as "Sardar Sarovar Narmada Nigam Ltd." has not been made a party, he is not liable for payment of damages. It is not disputed that defendant No. 2 is an employee of Sardar Sarovar Narmada Nigam Ltd. and is not an independent party in his own right. In this view of the matter, the amendment sought for by the petitioner, by adding the words "Sardar Sarovar Narmada Nigam Ltd." as a prefix to the name of defendant No. 2, cannot be said to change the nature of the case. Neither would it amount to the addition of a new party, as defendant No. 2, who is already on record, is an employee of Sardar Sarovar Narmada Nigam Ltd. and would not be liable to pay damages in his personal capacity, but only as an employee of Sardar Sarovar Narmada Nigam Ltd., which has constructed the Minor Canal that has purportedly caused damage to the land and crops of the petitioner.

The reasons advanced by the Trial Court for rejecting the application of the petitioner are more academic in nature, rather than legal. Though the Trial Court appears to have taken great pains in passing the impugned order, however, this Court is unable to agree with the conclusion arrived at by it. As defendant No. 2 is an employee of Sardar Sarovar Narmada Nigam Ltd., it cannot be said that by prefixing or suffixing the words "Sardar Sarovar Narmada Nigam Ltd." to his name, a new party will be added. The amendment is formal and clarificatory in nature and is aimed at avoiding multiplicity of litigation. As such, there is no legal bar in allowing it. The approach of the Trial Court appears to be rather technical and not in consonance with the provisions of Order 6 Rule 17 of the Code. It has resulted into multiplicity of litigation, which could easily have been avoided.

For the above reasons, the impugned order of the Trial Court, which has been passed on erroneous premises and is not in accordance with law, deserves to be interfered with.

Consequently, the impugned order dated 24-1-2013 passed by learned 2nd Addl. Senior Civil Judge, Bharuch below application at Exh. 154 in Special Civil Suit No. 228 of 2002, is quashed and set aside. The application at Exh. 154 filed by the petitioner, is allowed.

The petitioner shall make the necessary amendment in the plaint, as expeditiously, as possible.

Rule is made absolute, accordingly.