Illam Din vs Mohd.Hafiz and Another

Arun Kumar Goel, Judge.

Heard learned counsel for the petitioner.

This is a revision directed against the order dated 30th, March, 1996 passed by Sub Judge Rajouri rejecting the application filed by the

petitioner (hereinafter referred to as plaintiff) for amendment of plaint for addition of parties. It was urged by Mrs. Surinder Kour that the trial court

has failed to exercise jurisdiction vested in it as according to law and the jurisdiction exercised by it is illegal as well as with material irregularity,

thus Mrs. Kour prayed for allowing this revision petition and consequently allowing the application filed by her client for amendment of the plaint.

In order to properly understand the case, brief facts giving rise to this revision need to be noticed. A suit was filed for declaration and

possession by the plaintiff against the respondents (hereinafter referred to as defendants). Claim of the plaintiff made in the suit was that he was in

possession of land comprising of Khasra No. 1770 of which he was conferred proprietary rights under the J and K Agrarian Reforms Act and

Mutation No. 984 has been sanctioned in his favour in that behalf. Further case pleaded in the plaint was to the effect that he is also in possession

of land comprising of Khasra No. 1781 prior to the year 1954 and thus he was entitled to get its proprietary rights in terms of Order LB 6 and

Govt. Order No. 432. Because of his health problem plaintiff was not in a position to personally cultivate the land, as such he engaged the services

of respondents for cultivating the same. But unfortunately for him respondents in connivance with revenue staff have got revenue entries made in

their favour. It was further pleaded that the agreement and affidavit dated 15th September, 1992 purported to have been executed by the plaintiff

were null and void being not binding upon the plaintiff, therefore declaration was sought to that effect.

This application was contested and resisted by the defendants, who while repudiating the claim of the plaintiff submitted that they have further

relinquished their rights over the land in question in favour of Mohd. Farooq and Mohd. Araf on the basis of agreements dated 12th December,

1994 and it was these two persons who are in possession of the land in question.

Faced with the aforesaid defence of the defendants, plaintiff filed the application in question wherein the prayer was made for amendment of

plaint by arraying said two persons namely Mohd. Farooq and Mohd. Araf as defendants 3 and 4 as well as seeking a further declaration that the

agreements dated 12th December, 1994 executed by defendants 1 and 2 in favour of aforesaid two persons being illegal and inoperative so far the

rights of the plaintiff over the suit land were concerned.

This application was also contested by the defendants on the plea that plaintiff had the knowledge about the agreements in question between the

defendants and the two above named persons, thus the amendment cannot be allowed. Further ground urged while opposing the amendment

application on behalf of the defendants was that the plaintiff has no right to claim additional relief by way of amendment of plaint.

From the impugned order it is clear that the case before the trial court is still in its infancy and only pleadings have been filed so far. Trial court

by means of impugned order had fixed the case for recording the statements of parties before framing of issues under Order 10 of J and K Civil

Procedure Code as well as for framing of issued when the revision came to be filed in this court.

The main consideration while taking into account an application for amendment of pleadings is that it is for the court to ascertain whether the

amendment is necessary and is required for properly and effective adjudication of the case, and further relevant consideration is whether without

causing any hardship to the opposite side the amendment can be allowed or not. Merely negligence or even omission to have not incorporated a

plea by itself will not be a ground for declining the claim for amendment of pleadings, as have been done in the present case by the court below.

In the instant case plea of the defendants was that they are no more in possession of the land in question which according to them had been

relinquished in favour of Mohd. Farooq and Mohd. Araf. This was done by the defendants by means of an agreement. In these circumstances it is

evident that the amendment had been necessitated on account of defence put forth in the written statement by the defendants. Plaintiff is claiming

title to the property in question as well as possession thereof. It would have been in consonance with the public policy to minimize the litigation that

the proposed amendments were required to be allowed. Since Mohd. Farooq and Mohd. Araf were not parties to the lis between the parties,

technically plaintiff would file a separate suit for possession against them. In order to avoid multiplicity of litigation, plaintiff was well advised to

obtain the entire relief in the present proceedings and for that purpose amendment was necessary for proper and effective decision of the case.

Mere delay by itself is no ground to deny the proposed amendment. In this behalf reference can be made to AIR 1955 Hyderabad I, a Full

Bench decision in the case of Maruti and others, Appellants Vs. Ranga nath, respondent; wherein it was held :

The principle on which amendment will ordinarily be allowed is that the proposed amendment should not alter the nature of the suit. In certain

cases an amendment will be allowed even to introduce a new ground of claim or allegation of fact inconsistent with the original pleadings if the

court thinks it just and necessary.

However negligent or careless may have been the omission, and however late the proposed amendment, the amendment should be allowed if it

can be made without injustice to the other side. There is no injustice if the other side is compensated by costs.

A further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided.

As already noticed, in the background of this case the amendment was necessitated in view of the stand taken by the defendants in their written

statement.

For the foregoing reasons this revision petition is allowed as a consequence whereof application under Order 6 Rule 17 filed by the plaintiff for

amendment of the plaint is allowed. Plaintiff will now file amended plaint in the court on the next date which is fixed as 20th July, 1998, before

which date registry will ensure that the record is made available to the trial court.