Haji Mohd.Ishaq and Another vs Haji Alam Din

A suit was filed by respondent against the petitioners before Sub Judge, Rajouri. The following relief was claimed by the plaintiff in the suit :

It is, therefore, prayed that a decree for the specific performance

of a part of contract which the defendants are under an obligation and liability to perform specifically in the light of the agreement dated 22nd

February, 1989, wherein the defendants voluntarily undertook to pay the outstanding loan case of Mini Bus No. 1625/ JKU to the J and K Bank,

Gujjar Mandi, Rajouri Branch and on this condition the plaintiff transferred provisionally the Mini Bus concerned in the complete control of the

defendants to ply it on the permitted route from Rajouri to Shahdarasharief and in order to enable them to complier their requisite condition so that

after liquidation of loan amount in full, the plaintiff could be able to transfer Mini Bus in favour of the defendants with the prayer of issuance of

permanent mandatory injunction against the defendants to deposit the daily routine income in J and K Bank Branch Gujjar Mandi, Rajouri towards

the repayment of outstanding loan and it in even of the time the defendants had failed to deposit the Instalments regularly

While the suit was going on between the parties, and issues have been framed and an application came to be filed seeking amendment of the plaint

in the application. In para 3 of the application, it has been stated :

'The plaintiff had not asked for specific performance of contract but due to in advertence, claim for specific performance of part contract has been

incorated in the title of the suit as well as relief para. This had led to confusion. In order to remove this

confusion and make the relief claimed by the plaintiff to be more definite and specific, the plaintiff wants to amend the plaint by deleting and

amending the following particulars

The plaintiff wanted to amend the title and also the relief clause of the plaint. The relief which was sought to be incorporated in the plaint by

amendment was :

It is, therefore, prayed that a decree for permanent mandatory injunction directing the defendants to pay the outstanding loan in the case of Mini

Bus No. 1625 JKU to J and K Bank Branch Gujiar Mandi, Rajouri, and discharging of their liability arising out of the mini Bus Loan case to the

said Bank as undertaken by them vide agreement executed by the parties on 22.2,1989 may kindly be passed in favour of the plaintiff and against

the defendants with costs.

This application was resisted by the present petitioners and the matter was heard and decided by the trial court allowing amendment by this order

dated 10th January. 1995. The order of the trial court has been challenged in this revision.

Objection taken by the defendants before the trial court was that the case had been set for final hearing and during the course of the hearing, the

counsel for the plaintiff had to concede that the specific suit for specific performance was not maintainable and in order to save the suit, he moved

the application for amendment.

From the interim orders, it appears that the arguments on Issue No. 1 had been partly heard on 19th July, 1993. The court in its interim order

recorded that during the course of arguments, the counsel had agreed that for deciding Issue No. 1 leading of evidence was necessary. Issue No. 1

was :

Whether the suit was maintainable in the present form ?

Therefore the court permitted leading of evidence. Before the evidence could be led, the application for amendment was moved.

I have heard the learned counsel for the parties at length. It is clear from the record of the case that there was a specific issue about maintainability

of the suit and when the issue was to be heard and decided, the parties submitted that they want to lead evidence. After this prayer was made, no

evidence was lead and an application for amendment was filed. The application was filed under Order VI Rule 17. Rule 17 of the Order VI lays

down :

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 question in controversy between the

parties.

From the bare perusal of this rule, it is appears that the court has the power to allow the amendment of either the plaint or written statement The

learned counsel for the respondent has submitted that since the suit was not itself maintainable, therefore, the application for amendment was made

and even if the application is allowed and the amendment is made in the plaint, even then, the suit would not be maintainable This objection has

been taken before the learned trial court also but the trial court has pointed out that since an issue has already been framed in the suit with regard to

the maintainability of the suit, therefore, he would not like to settle the controversy in the application for amendment.

In my view, the trial court was partly correct in coming to the conclusion that maintainability of the suit could not be decided in the application for

amendment but he was wrong in deciding the application before deciding the issue of maintainability of the suit. A question of allowing or

disallowing of amendment of a plaint would only arise, if the suit is maintainable. If the suit is not maintainable on account of jurisdiction or is barred

by any law or for any other reason, the court seized of the matter will not be within its rights to permit amendment of such a plaint. Order VI Rule

17 also presupposes that the court hoarding the matter and allowing the amendment must have the necessary jurisdiction and power to hear the

suit.

In a case like the present one, where the issue has already been frammed as to the maintainability of the suit, the proper course for the court was to

keep the application for amendment pending and decide the issue or maintainability of the suit. If he come to the conclusion after deciding such an

issue that the suit was maintainable, the application could be taken up for consideration and if the trial court comes to a conclusion that the suit was

not maintainable, the application for amendment would become unnecessary and infructuous.

Therefore, I am of the opinion that generally speaking where the objection is taken in the written statement about the maintainability of the suit and

issue is struck, no amendment can be allowed before the issue of maintainability is decided. There may be however cases !n which an application

for amendment be decided before such an issue but it depends upon the facts of each case and in a Case like the present one, where the court was

about to decide the issue of the maintainability of the suit, application for amendment was made.

For these reasons alone, I set aside the order of the trial court and direct the trial Judge to decide the issue of maintainability of the suit in the first

instance and if he decided the issue in favour of the plaintiff and holds that the suit was maintainable, he may take up the application for amendment

de novo, if it is pressed by the plaintiff.