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Judgment
Savitri Ratho, J. This CMP has been filed challenging the order dated 27.04.2023 passed by the learned 2nd Additional Senior Civil Judge, Cuttack in C.S. (I) No. 240 of 2021, rejecting the application filed by the Plaintiff-Petitioner under Order 6 Rule 17 of the C.P.C. for amendment of the plaint.
BACKGROUND FACTS
The Petitioner had filed C.S. No. 240 of 2021 praying for the following reliefs:-
“i.Let a decree for permanent injection be passed restraining the defendants defendant and his men and agents to come over the suit land.
ii.Let a decree be passed declaring that Defendant has no right, title, interest and possession over the suit land.
iii.Let the Suit be decreed in favor of the Plaintiff and against the Defendants with costs.
iv.Let a any other decree or decrees be passed in favor of the Plaintiff found to be entitled.”
Written statement had been filed by the Defendant on 04.02.2022 denying the averments in the plaint and stating that the Plaintiff had not come to the Court with clean hands and had suppressed material facts and it has been stated that the story of the Plaintiff was concocted and the Defendant had constructed the house over the suit land after having peaceful possession over the land with a sanctioned loan taken from Punjab National Bank vide sanction letter dated 31.12.2020 but the Plaintiff has created disturbances from time to time and that the plan has been approved by the Cuttack Municipality on 05.10.2020 for construction of house over the said land and the Defendant mortgaged the suit land to Punjab National Bank and he has got the Holding No. 031001682 on 22.02.2021 vide Case No. 24 of 2020-21 on his land building from the Cuttack Municipality. The Plaintiff does not have her own land documents with her to substantiate the case and that there was no prayer for recovery possession of the scheduled property from the Defendant as well as cancellation of registered sale deed in favour of the Defendant and the Defendant is in peaceful possession from the date of the purchase of the schedule property from his vendor.
PETITION UNDER ORDER VI, RULE 17 OF THE CODE OF CIVIL PROCEDURE
The application under Order VI, Rule 17 of the CPC has been filed on 12.10.2022 for amendment of the plaint stating that during pendency of the suit, the Defendant taking advantage of the lockdown during Covid-19 pandemic had entered the suit land on 2nd January, 2022 and had forcibly created construction over the suit land and illegally dispossessed the Plaintiff from the suit land. Hence the defendant wanted to add these averments and also wanted to amend the prayer in order to include a prayer for declaring the possession of the Defendant over the suit land to be illegal without any title and for a direction to the Defendant to handover the possession of the suit land to the Plaintiff.
No objection was filed by the Defendant to the said application.
IMPUGNED ORDER
On 27.04.2023, referring to the proposed amendment at paragraphs 19 and 20, and the decision of the Supreme Court in the case of Chandar Kanta Bansal vrs. Rajinder Singh Anand reported in AIR 2008 (SC) 2234, the learned trial court rejected the application stating that the suit which had been filed for declaration of right, title and interest along with permanent injunction will be transformed to a suit for eviction and hence that would change the nature and character of the suit.
SUBMISSIONS
Mr. Ranjan Kumar Rout, learned counsel for the Petitioner submits that the application for amendment had been filed due to change in circumstances which took place during pendency of the suit. Hence, the additional prayer was made for eviction of the Defendant from the premises and for a recovery of possession which was a consequential prayer and that would not change the nature and character of the suit. Rather, that would prevent multiplicity of litigation or the Plaintiff would have to file a separate suit for the additional relief. He also submits that this amendment was necessary for determining the actual question in controversy and would neither cause injustice or prejudice to the other side he would have the option for filing an additional written statement.
In support of his submission, he relies on the decision of the Supreme Court in the case of Life Insurance Corporation of India vrs. Sanjeev Builders Private Limited & Another: 2022 INSC 896: (2022) 16 SCC 1, (paragraph 70).
Mr. Surya Narayan Biswal, learned counsel appearing on behalf of the Opposite Party-Defendant submits that the Plaintiff has no right, title and interest or possession over the said land and the land which had been mortgaged to Bank of Baroda had been sold in auction to one Manas Kumar Parida on 05.02.2018 vide Sale Deed No. 10391800698 and delivery of possession had also been given to him and the Opposite Party-Defendant has purchased the land from Manas Kumar Parida on 08.06.2018 by registered sale deed. Manas Kumar Parida has neither been made a party in the civil suit. Since date of purchase the defendant is in possession over the case land and has paid the rent for the year 2020-2021 and hence the suit as well as the prayer for amendment were misconceived. The Petitioner has not filed the civil suit with clean hand and suppressed material facts.
Although in SA No. 79/2017, the DRT by order dated 30.11.2019 has directed for cancellation of the sale deed in favour of Manas Kumar Parida but by that time, the Opposite Party had bought the land and he was not a party before the DRT.
STATUTORY PROVISION
The provision of Order VI, Rule 17 of the Code of Civil Procedure is extracted below:-
“17.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.”
JUDICIAL PRONOUNCEMENT
In the case of Life Insurance Corporation of India (supra), the Supreme Court has held as follows:-
“70.Our final conclusions may be summed up thus:
(i)Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii)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 Order VI Rule 17 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 unless (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, (ii) 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 should avoid a hypertechnical approach, and is ordinarily required 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.”
ANALYSIS AND CONCLUSION
The petition for amendment has been filed before the trial had started. The proposed amendment relates to an incident which according to the Plaintiff-Petitioner took place after filing of the suit. This of course has been denied by the defendant who submits that the defendant is in possession of the case land since date of purchase i.e 08.06.2018 and after he filed his written statement, the application for amendment has been filed making false and belated claims and to fill up the lacunae in the plaint.
While considering an application for amendment of the plaint, the truth or of the averment is not considered by the Court. The contention of the learned counsel for the defendant-Opposite Party that false claims have been made in the prayer for amendment, will be considered during trial and is not required to be gone into by the Court while considering the application for amendment. The veracity of the claims of the parties will be considered by the learned trial Court after they have led evidence.
In view of the decision of the Supreme Court in the case of Life Insurance Corporation of India (supra), in my opinion, if the amendment of question is not allowed, it will lead to multiplicity of litigation as the Plaintiff will be compelled to file another suit for recovery of possession. This would not be in the interest of justice.
No prejudice will be caused to the defendant as because he will be given opportunity by the learned trial Court to file an additional written statement. Hence, in my opinion in the interest of justice, the petition for amendment of the plaint should be allowed.
The CMP is allowed.
The impugned order dated 27.04.2023 is set aside. The petition filed by the plaintiff for amendment is allowed.
The Petitioner-Plaintiff shall file the consolidated plaint on or before 1st September, 2026.
In view of the request of both the learned counsel for the parties, learned 2nd Additional Senior Civil Judge, Cuttack is requested to make an endeavor for early disposal of the suit.
Urgent certified copy of this order be granted on proper application.