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HAKIM AND OTHERS versus D.J.., DEORIA AND OTHERS

High Court of Judicature at Allahabad

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Hakim and others v. D.J.., Deoria and others - WRIT - C No. 3477 of 1988 [2004] RD-AH 139 (15 March 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R./Court No. 6

Civil Misc. Writ Petition No. 3477 of 1988.

Hakim and others.......................................... Petitioners.

Versus

The District Judge, Deoria and others.................. Respondents.

Hon'ble R.B. Misra, J.

Heard learned Counsel for the petitioners and learned Standing Counsel for the State respondents. None appears for the respondent nos. 3 and 4.

In this petition prayer has been made to quash the order dated 21st January, 1988, whereby the revision no. 47/86 of the petitioners was rejected and the amendment application dated 27.2.1986 preferred in the Original Suit No. 1058 of 1971 was allowed.

It appears that the respondent nos. 3 and 4 had preferred an Original Suit No. 1058 of 1971 before the Munsif Magistrate, Deoria for permanent injunction and demolition of the property in question, which was being contested, however, after about 15 years on 27.2.1986 an amendment application was preferred by the plaintiffs-respondents by adding new prayer for possession of the property in question, which was contested by the defendants/petitioners before the Munsif Magistrate, Deoria. The 2nd Additional Munsif, Deoria by its order dated 21.03.1986 allowed the amendment application of the plaintiffs/respondents, against which petitioners filed a revision no. 47 of 1986, which was dismissed by an order of the 3rd Additional District Judge, Deoria.

Learned Counsel for the petitioners in reference to A.I.R. 1957 S.C. 368 & 363 has submitted that new clause in the suit through amendment application cannot be added at belated stage against the limitation period. Learned Counsel for the petitioners has also placed reliance on 2003 (53) A.L.R. 711 [Md. Mohammad Ali (Dead) By Lrs. Vs. (Sri) Jagdish Kalita and others], where the plea of adverse possession raised by the respondents in the case was treated not amount to decree on ouster and question of adverse possession of the property and the claim of the share on that basis was in issue, however, the facts and circumstances of the above case of Md. Mohammad Ali (supra) is not applicable to the present case.

Learned counsel for the petitioner has also placed reliance on 2000 (1) S.C.C. 712 (B.K. Narayan Pillai Vs. Parameswaran Pillai and another), where the general rule, no doubt, is that a party can not be allowed to seek amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. The Supreme Court in B.K. Narayan Pillai (supra) in paragraph-4 has held as under: -

"4. This Court in A. K. Gupta & Sons Ltd. v. Damodar Valley Corpn. [AIR 1967 SC 96: (1966) 1 SCR 796] held:

" The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or new cause of action is barred: Weldon v. Neal [(1887) 19 QBD 394: 56 LJ QB 621]. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Dasv. Amir Khan [AIR 1921 PC 50: ILR 48 Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co.[AIR 1957 SC 357" 1957 SCR 438].

The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes [Cropper v. Smith, (1884) 26 ChD 700: 53 LJ Ch 891: 51 LT 729] and secondly, that a party is strictly not entitled to rely on the statue of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended [Kisandas Rupchand v. Rachappa Vithoba Shilwant,{ ILR (1909) 33 Bom 644 :11 Bom LR 1042} approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda patil {AIR 1957 SC 363: 1957 SCR 595}].

The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill [(1873) 8 CP 107: 42 LJCP 98: 28 LT 32] in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd.[(1962) 2 All ER 24 (CA)] and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'new set of ideas': Dornan v. J.W. Ellis and Co. Ltd.[(1962) 1 All ER 303 (CA)]. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time."

Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court held: (SCC p. 399, para 22)

"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."

In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it was held: (SCC p. 93, para 4)

"4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."

The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as the question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the applicable for amendment of plaint or written statement."  

In my respectful consideration, the facts and circumstances of the case of B.K. Narayan Pillai (supra) are different, where the respondent-plaintiff filed a suit against the appellant-defendant praying for grant of mandatory and prohibitory injunction seeking eviction allegedly on the ground of his being a licensee and in the written statement filed by the appellant therein pleaded that he was not a licensee but a lessee. During the trial of the suit the appellant filed an application for amendment of written statement to incorporate an alternative plea that in case the Court found that the defendant was a licensee, he was not liable to be evicted as according to him the licence was irrevocable and the appellant wanted to add a plea that the first and second prayer in the plaint were barred by limitation and that as acting upon the licence he has executed works of permanent nature and incurred expenses in execution of the same, as such, his licence could not be revoked by the grantor under Section 60(b) of the Indian Easements Act, 1882, such prayer of the appellant was rejected by the trial court as also by the High Court on the ground that the proposed amendment was mutually destructive, which, if allowed, would amount to permitting the defendant to withdraw the admission allegedly made by him in the main written statement. The facts and circumstances of B.K. Narayan Pillai (supra) are different and distinguishable as there a prayer was made for altering the stand in the written statement, which might have frustrated the stand of the appellant. Here the amendment for possession prayed by the plaintiffs/ respondent nos. 3 and 4 was allowed by the Munsif on 21.3.1986, against which misc. revision no. 47 of 1986 was preferred before the District Judge, who considered and placed reliance on A.I.R. 1978 S.C. 484 and A.L.J. 1987 page 349, where it was indicated that the parties seeking amendment to bring the plea to extend their stand in the interest of justice and in the interest of purpose and their purpose should not be defeated. The lower revisional court has also noted in reference to A.I.R. 1983 S.C. 462 that amendment of the plaintiff, if accepted, by the trial court in the interest of justice is not to be interferred by the higher court.

I have heard learned counsels for the parties and perused the records. I find that the amendment at subsequent stage of the proceedings but before final adjudication of the suit, if either party intends to amend its stand in such manner on such permission as it is most reasonable and just and if the amendment to render proper assistance is necessary and rendered for the purpose of determining the relevant question in controversy amongst the parties and is not to directly or indirectly jeopardize the legal rights of the parties, the same could be allowed by a reasoned order passed by the concerned court. In these circumstances, I do not find any illegally and impropriety in the order dated 21.1.1988, the impugned order in the present writ petition, therefore, the amendment, which was sought by the plaintiffs-respondent nos. 3 and 4 could be allowed by the trial court in original suit no. 1058 of 12971.

In view of the above observations, writ petition is dismissed. However, this dismissal shall not affect the merits of the suit being adjudicated amongst the parties concerned before the trial court and the trial court is expected to decide the suit expeditiously with the co-operation of the parties and the parties concerned are expected to render all possible co-operation in expediting the same.

Dated:15.3.2004.

SKT/-        


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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