REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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2 CIVIL APPEAL NO. 7043 OF 2012
3 (Arising out of SLP (C) No. 6324 of 2008
Abdul Rehman & Anr. ...
Appellant (s)
Versus
Mohd. Ruldu & Ors. . ...
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is filed against the judgment and order dated 13.11.2007
passed by the High Court of Punjab & Haryana at Chandigarh in Civil
Revision No. 4486 of 2007 whereby the High Court dismissed the revision
filed by the appellants herein and confirmed the order dated 06.06.2007
passed by the Civil Judge (Jr. Division) Malerkotla in an application filed
by the appellants herein for amendment of the plaint.
3) Brief Facts:
(a) Originally one Jhandu, resident of Village Haider Nagar, was the
owner and in possession of land admeasuring 53 bighas 11 biswas at village
Haider Nagar, Tehsil Malerkotla and 33 bighas 15 biswas situated at Village
Binjoli Kalan, Tehsil Malerkotla. Jhandu died leaving behind Khuda Bux as
his son and Aishan and Kaki as his daughters. The mutation of inheritance
was sanctioned in favour of Khuda Bux alone being his son.
(b) Feeling aggrieved by the aforesaid mutation, Kaki and Aishan
(daughters of Jhandu) filed Suit No. 280/162 against Khuda Bux claiming
9/36 share each in the said lands before the subordinate Judge, Ist Class,
Sangrur, Camp at Malerkotla. By order dated 20.12.1971, the sub-Judge
dismissed the said suit.
(c) Challenging the said judgment, Kaki and Aishan filed an appeal being
Civil Appeal No. 21 of 1972 before the District Judge, Sangrur. Vide
order dated 04.07.1972 passed by the District Judge, the said appeal was
dismissed as withdrawn in terms of the compromise arrived at between the
parties. According to the terms of the compromise, it was agreed that Khuda
Bux shall be entitled to retain possession of land admeasuring 34 Bighas 13
Biswas in village Haider Nagar with the condition that he and his wife
Ramzanan will receive the produce of the suit land during their life time
but they will have no right to alienate it by way of sale, mortgage or any
other form. After the death of Khuda Bux and his wife, the said land would
be divided among the four sons of Khuda Bux in equal shares. The remaining
land owned by Khuda Bux in Binjoli and Haider Nagar was partitioned by him
amongst his four sons in the manner set out in the compromise deed.
(d) On 12.09.1986, Khuda Bux executed a sale deed transferring ownership
and possession of land admeasuring 17 Bighas and 10 biswas in village
Haider Nagar in favour of the appellants herein. Challenging the said sale
deed, the other two sons and two daughters of Khuda Bux filed a suit before
the sub-Judge, Malerkotla. The sub-Judge dismissed the said suit and set
aside the sale deed dated 12.09.1986. The said order was further confirmed
in appeal.
(e) After the death of Khuda Bux, Ramzanan - his wife filed Suit No. 308
of 2002 before the Civil Judge, Malerkotla for declaration and permanent
prohibitory injunction against all her children. In the above suit, on
24.12.2002, she also filed an application under Order XXXIX Rules 1 & 2 of
the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”)
seeking an injunction against the appellants herein from interfering with
her possession. The said application was dismissed. Against the dismissal
of the said application, she filed an appeal being C.M.A. No. 7 of 2003
before the Additional District Judge, Sangrur. By order dated 06.08.2003,
the Additional District Judge dismissed the same.
(f) Vide registered sale deed Nos. 1810 and 1811 dated 25.08.2003
Ramzanan (wife of Khuda Bux) and Bashiran and Rashidan (daughters of Khuda
Bux) sold some lands to respondent No.1 to 3 herein and tried to forcibly
dispossess the appellants and respondent No.4 herein from the lands under
their possession.
g) The appellants filed Suit No. 320 of 2003 in the Court of Civil Judge
(Jr. Division) Malerkotla, for permanent prohibitory injunction restraining
respondent Nos. 1-3 herein from forcibly and illegally dispossessing the
appellants from the land in dispute.
(h) In the said suit, the appellants herein filed an application on
17.09.2004 under Order VI Rule 17 read with Section 151 of the Code for
amendment of the plaint. The trial Court, by order dated 06.06.2007,
dismissed the said application.
(i) Being aggrieved by the said order, the appellants filed Civil
Revision No. 4486 of 2007 before the High Court of Punjab & Haryana. By
impugned judgment dated 13.11.2007, the High Court dismissed the said
revision.
(j) Aggrieved by the said judgment, the appellants have filed this appeal
by way of special leave.
4) Heard Ms. Manmeet Arora, learned counsel for the appellants. None
appeared for the respondents.
5) The only point for consideration in this appeal is whether the
appellants herein have made out a case for amendment of the plaint in terms
of Order VI Rule 17 of the Code.
6) Before considering the factual details and the materials placed by
the appellants praying for amendment of their plaint, it is useful to refer
Order VI Rule 17 which is as under:-
“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.”
7) It is clear that parties to the suit are permitted to bring forward
amendment of their pleadings at any stage of the proceeding for the purpose
of determining the real question in controversy between them. The Courts
have to be liberal in accepting the same, if the same is made prior to the
commencement of the trial. If such application is made after the
commencement of the trial, in that event, the Court has to arrive at a
conclusion that in spite of due diligence, the party could not have raised
the matter before the commencement of trial.
8) The original provision was deleted by Amendment Act 46 of 1999,
however, it has again been restored by Amendment Act 22 of 2002 but with an
added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails
absolute discretion to allow amendment at any stage. At present, if
application is filed after commencement of trial, it has to be shown that
in spite of due diligence, it could not have been sought earlier. The
object of the rule is that Courts should try the merits of the case that
come before them and should, consequently, allow all amendments that may be
necessary for determining the real question in controversy between the
parties provided it does not cause injustice or prejudice to the other
side. This Court, in a series of decisions has held that the power to
allow the amendment is wide and can be exercised at any stage of the
proceeding in the interest of justice. The main purpose of allowing the
amendment is to minimize the litigation and the plea that the relief sought
by way of amendment was barred by time is to be considered in the light of
the facts and circumstances of each case. The above principles have been
reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and
Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt.
Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind,
let us consider whether the appellants have made out a case for amendment.
9) It is true that originally the appellants have approached the trial
Court with a prayer for permanent prohibitory injunction restraining
respondent Nos. 1-3 herein from forcible and illegal dispossession of the
appellants herein from the land in dispute. Respondent Nos. 1-3 herein
(Defendant Nos. 1-3 therein) filed written statement wherein they
specifically alleged that they have stepped into the shoes of Ramzanan and
Smt. Bashiran and Rashidan on the basis of the sale deeds dated 25.08.2003.
It is the claim of the appellants that the above said Ramzanan and Smt.
Bashiran and Rashidan have no concern with the ownership of the land in
dispute and no right to alienate the suit land to the defendants or anybody
else. In view of the stand taken by the defendants in their written
statement, in the application filed under Order VI Rule 17 of the Code, the
appellants have specifically raised that the alleged sale deed Nos. 1810
and 1811 dated 25.08.2003 in favour of defendant Nos. 1-3 executed by
Ramzanan and Bashiran and Rashidan are liable to be set aside and have no
effect on the rights of the plaintiffs and Saifur-Rehman qua the suit land
and the mutation Nos. 781 and 782 sanctioned on the basis of above noted
sale deeds dated 25.08.2003 are also liable to be set aside. In view of
the claim of the appellants, we verified the necessary averments in the
written statement of Defendant Nos. 1 and 3 and we agree with the stand of
the appellants.
10) Next, we have to see whether the proposed amendments would alter the
claim/cause of action of the plaintiffs. In view of the same, we verified
the averments in the un-amended plaint. As rightly pointed out by Ms.
Manmeet Arora, learned counsel for the appellants that the entire factual
matrix for the relief sought for under the proposed amendment had already
been set out in the un-amended plaint. We are satisfied that the challenge
to the voidness of those sale deeds was implicit in the factual matrix set
out in the un-amended plaint and, therefore, the relief of cancellation of
sale deeds as sought by amendment does not change the nature of the suit as
alleged. It is settled law that if necessary factual basis for amendment
is already contained in the plaint, the relief sought on the said basis
would not change the nature of the suit. In view of the same, the contrary
view expressed by the trial Court and High Court cannot be sustained. It
is not in dispute that the relief sought by way of amendment by the
appellants could also be claimed by them by way of a separate suit on the
date of filing of the application. Considering the date of the sale deeds
and the date on which the application was filed for amendment of the
plaint, we are satisfied that the reliefs claimed are not barred in law and
no prejudice should have been caused to respondent Nos. 1-3 (defendant Nos.
1-3 therein) if the amendments were allowed and would in fact avoid
multiciplity of litigation.
11) Learned counsel for the appellants has also brought to our notice
that the amendments were necessitated due to the observations made by the
High Court in its earlier order dated 19.04.2007 in C.R. No. 3361 of 2007
to the effect that the appellants’ application for ad-interim injunction
without seeking cancellation of the sale deeds is not maintainable. This
aspect has not been noticed by the trial Court as well as the High Court
while considering the application filed under Order VI Rule 17 of the Code.
12) It is also brought to our notice that respondent Nos. 2 and 3 herein
– transferees under the sale deed, are the nephews of the appellants herein
and the transferors and the purchase of the suit land by them is void to
their knowledge as they were equally bound by the judgment dated 20.12.1971
and compromise deed dated 04.07.1972 declaring that under the applicable
customary law of inheritance to the parties therein, widows and daughters
have no right of inheritance in the presence of the sons. It is the claim
of the appellants that in view of the same, respondents – transferees are
not bona fide purchasers of the suit land. Learned counsel for the
appellants again brought to our notice that these facts were specifically
stated in the un-amended plaint and, therefore, amendment seeking
incorporation of relief of declaration that the sale deeds are void does
not change the nature of the suit. Because of those allegations in the un-
amended plaint, the same was denied by the defendants in their written
statement and we are satisfied that the necessary factual matrix as regards
the relief of cancellation was already on record and the same was an issue
arising between the parties.
13) In view of the stand taken by the respondent Nos. 1-3
herein/Defendant Nos. 1-3 in their written statement and the observation of
the High Court in the application filed for injunction, we are of the view
that the proposed amendment to include a relief of declaration of title, in
addition to the permanent injunction, is to protect their interest and not
to change the basic nature of the suit as alleged.
14) In Pankaja & Anr. vs. Yellapa (Dead) By Lrs. & Ors. AIR 2004 SC 4102
= (2004) 6 SCC 415, this Court held that if the granting of an amendment
really subserves the ultimate cause of justice and avoids further
litigation, the same should be allowed. In the same decision, it was
further held that an amendment seeking declaration of title shall not
introduce a different relief when the necessary factual basis had already
been laid down in the plaint in regard to the title.
15) We reiterate that all amendments which are necessary for the purpose
of determining the real questions in controversy between the parties should
be allowed if it does not change the basic nature of the suit. A change in
the nature of relief claimed shall not be considered as a change in the
nature of suit and the power of amendment should be exercised in the larger
interests of doing full and complete justice between the parties.
16) In the light of various principles which we have discussed and the
factual matrix as demonstrated by learned counsel for the appellants, we
are satisfied that the appellants have made out a case for amendment and by
allowing the same, the respondents herein (Defendant Nos. 1-3) are in no
way prejudiced and they are also entitled to file additional written
statement if they so desire. Accordingly, the order of the trial court
dated 06.06.2007 dismissing the application for amendment of plaint in Suit
No. 320 of 2003 as well as the High Court in Civil Revision No. 4486 of
2007 dated 13.11.2007 are set aside. The application for amendment is
allowed. Since the suit is of the year 2003, we direct the trial Court to
dispose of the same within a period of six months from the date of receipt
of copy of the judgment after affording opportunity to all the parties
concerned. The appeal is allowed. No order as to costs.
...…………….…………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
SEPTEMBER 27, 2012.
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