IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM
ANDARUNACHAL PRADESH)
Civil Revision Petition 16 of 2010
SHRI PRADIP KR. BANIK
S/O LT. HARENDRA BANIK
R/O VILL- PASCHIM SUALONI,
MOUZA- LAWIKHOWA,
P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
Petitioner.
Versus
1. MANINDRA MANDAL & ORS.
S/O LT. KAILASH MANDAL.
2. SHRI NIDANI MANDAL,
W/O SHRI MANINDRA MANDAL,
BOTH ARE RESIDENTS OF VILLAGE PASCHIMSUALONI,
MAUZA LAWIKHOWA, P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
3. Shri Prantosh Banik,
S/O Late Suresh Banik,
4. Shri Ranjit Banik,
S/O Late Satish Banik,
5. Shri Subhas Mandal,
6. Shri Sriram Mandal,
Both are sons of Late Moli Namasudra,
RESIDENTS OF VILLAGE PASCHIMSUALONI,
MAUZA LAWIKHOWA, P.O. AMBAGAN, P.S. RUPAHIHAT,
DIST. NAGAON, ASSAM.
Respondents.
!1. Mr. AK Purkayastha,
2. Mr. BJ Das,
3. Mr. MM Mali, Petitioner's Advocates.
^1. Mr. P Sundhi, Respondent's Advocate.
Coram
BEFORE
HONOURABLE MR JUSTICE I A ANSARI
Date of hearing and judgment:27/01/2010
:J U D G M E N T
O R D E R
O R A L
The petitioner herein instituted, as plaintiff, Title Suit No. 13 (K) of
2008, wherein he sought for a decree of declaration of his rights, title and
interest over the suit land and confirmation of possession thereof. The suit was
resisted by the defendants by filing written statement, wherein, apart from
denying the plaintiff-petitioner s title to the suit land, they also contended to
the effect that they had been in possession of the suit land and have a pucca
house with CI sheet roofing constructed on the eastern wide of the suit land
and, hence, the question of granting a decree, in favour of the plaintiff,
confirming his possession over the suit land, or any part thereof, does not
arise. In their written statement, the defendants also took the plea that there
was a proceeding under Section 145 Cr.P.C. between the parties concerned in
respect of the suit land, wherein it had surfaced that the suit land had been in
possession of the defendants.
2.Following the filing of the written statement, the plaintiff filed an
application, under Order VI Rule 17 CPC, seeking amendment of the plaint by
incorporating, in the plaint, facts to the effect that subsequent to the
institution of the suit, the defendants had entered into the suit land and
constructed pucca house, with CI Sheet roofing, over the same during the puja
vacation, when the civil courts were closed. This application for amendment
was resisted by the defendants by contending, inter alia, that in their written
statement, they had already indicated that they were in possession of the suit
land and this fact was known to the plaintiff and yet he had suppressed the
same and it is unbelievable that a pucca house could have been constructed
over the suit land after the institution of the suit. The defendants, therefore,
sought to get the application for amendment rejected.
3.By the order, dated 02-02-2009, passed in the said suit, as the learned
Munsiff, Kaliabor, has rejected the said application for amendment, the
plaintiff has impugned the same in this revision.
4.Heard Mr. AK Purkayastha, learned counsel for the petitioner, and Mr. P
Sundhi, learned counsel for the opposite parties.
5.While considering this revision, what needs to be noted is that the
plaintiff s application for amendment has been rejected by the learned Court
below by observing, in the impugned order, that it finds hard to digest the
plaintiff s contention that the defendants had encroached upon the eastern
side of the suit land and constructed a pucca house for CI sheet roofing during
the puja vacation. The observations, so made by the learned trial Court, show
that the learned trial Court has rejected the plaintiff s application for
amendment on the ground that the facts, sought to be incorporated in the
plaint by way of amendment, were untrue or false or, at least, highly
improbable or almost unlikely.
6.It may be pointed out that while considering an application seeking
amendment of pleadings, the Court is not to decide the veracity or correctness
of a factual assertion, which a party seeks to incorporate in his pleadings, for,
determination of such a question, if the amendment is allowed, would be at
the stage of trial. What is required to be determined by a trial Court, at the
stage of considering an application for amendment seeking to incorporate
certain facts in the plaint or written statement, is as to whether the
amendment, which is sought to be made, is necessary for determination of real
controversy in the suit and whether the amendment, if allowed, would amount
to allowing the plaintiff to change the nature or character of the suit or would
give rise to new cause of action, which is unconnected with the cause of action
in issue in the suit.
7.It may also be pointed out that while considering an application for
amendment, the Court has to proceed on assumption that the facts, sought to
be incorporated in the plaint or written statement, are true and, then,
determine whether the statements, made in the amendment application, can
help the Court in resolving the real controversy in issue in the suit, subject, of
course, to the condition that no amendment can be allowed to be made by the
plaintiff, which would amount to changing the nature and character of the suit
or would help to introduce into a suit a new cause of action, wholly
unconnected with the cause of action based on which the suit was instituted.
Whether, as a matter of fact, the statement, sought to be incorporated by way
of amendment, is or is not true, is a question, which can be decided, as
already indicated above, at the trial and not in an application for amendment.
8.I may, at this stage, refer to the case of Rajesh Kumar Aggarwal and
Ors.vs- K.K. Modi and Ors, reported in (2006) 4 SCC 385, wherein the Apex
Court observed and held as under:
11. Order VI Rule 17 consist of two parts whereas the first part
is discretionary (may) and leaves it to the Court to order amendment of
pleading. The second part is imperative (shall) and enjoins the Court to
allow all amendments which are necessary for the purpose of
determining the real question in controversy between the parties.
12. In our view, since the cause of action arose during the
pendency of the suit, proposed amendment ought to have been granted
because the basic structure of the suit has not changed and that there
was merely change in the nature of relief claimed. We fail to
understand if it is permissible for the appellants to file an independent
suit, why the same relief which could be prayed for in the new suit
cannot be permitted to be incorporated in the pending suit. As
discussed above, the real controversy test is the basic or cardinal test
and it is the primary duty of the Court to decide whether such an
amendment is necessary to decide the real dispute between the parties.
If it is, the amendment will be allowed; if it is not, the amendment will
be refused. On the contrary, the learned Judges of the High Court
without deciding whether such an amendment is necessary has
expressed certain opinion and entered into a discussion on merits of the
amendment. In cases like this, the Court should also take notice of
subsequent events in order to shorten the litigation, to preserve and
safeguard rights of both parties and to sub-serve the ends of justice. It
is settled by catena of decisions of this Court that the rule of
amendment is essentially a rule of justice, equity and good conscience
and power of amendment should be exercised in the large interest of
doing full and complete justice to the parties before the Court.
13. While considering whether an application for amendment
should or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. Likewise, it should
not record a finding on the merits of the amendment and the merits of
the amendment should to be incorporated by way of amendment are
not to be adjudged at the stage of allowing the prayer for amendment.
This cardinal principle has not been followed by the High Court in the
instant case.
9.Considered in the above backdrop of the position of law, it becomes
clear that the plaintiff s case, at the time of institution of the suit, was that he
not only had title to the suit land, but also possession thereof. In the face of
the pleadings in the written statement, the plaintiff seeks, in effect, to
incorporate, in his plaint, that subsequent to the institution of the suit, he had
been ousted from a portion of the suit land and he is, therefore, required to
incorporate his allegations as regards his ouster from the suit land and
consequential relief of recovery of possession from that part of the suit land
from where he claims to have been ousted or dispossessed. Ordinarily, a Court
shall allow pleadings to be amended in the light of the subsequent events, for,
it is the duty of the Court to ensure, as far as practicable, that litigations are
shortened and multiplicity of proceedings and suits are avoided. The facts,
which the petitioner sought to incorporate in the plaint, reflected, according
to the petitioner, events, which were subsequent to the institution of the suit.
Whether, as a matter of fact, allegations as regard such subsequent events,
were or were not true, is a question, which would be decided at the trial and
could not have been decided at the stage of considering the application for
amendment. This apart, in the face of the facts, which the petitioner seeks to
incorporate, in his plaint, would not change the basic structure of the suit and
there would only be a change in the nature of relief, which the petitioner, as
plaintiff had claimed, the changed relief being commensurate with the
subsequent development, as alleged by the petitioner.
10.In the facts and attending circumstances of the present case, the facts,
sought to be incorporated, by way of amendment, were, in the considered view
of this Court, necessary to be incorporated in the plaint for the purpose of
resolving the real controversy in the suit inasmuch as the decree passed in the
suit would be futile if the statements sought to be incorporated by the plaintiff
were true, but not allowed to be brought on record. Whether the plaintiff was
really in possession of the suit land or not at the time of institution of the suit
will remain a question for determination at the trial; but in the face of the
pleadings, which the petitioner seeks to make in his plaint, it cannot be said
that allowing the amendments, sought to be made in the plaint, would amount
to introducing a new cause of action in the suit.
11.Because of what have been discussed and pointed out above, this Court
finds that the impugned order, disallowing the amendment, suffers from
serious infirmity of law.
12.In the result and for the foregoing reasons, the impugned order, dated
02-02-2009, is hereby set aside and the learned trial Court is hereby directed to
pass appropriate order if the plaintiff-petitioner files amended plaint within
the statutorily prescribed period of time.
13.With the above observations and directions, this revision shall stand
disposed of.
14.No order as to costs.
JUDGE
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