Sufi Fasahat Hasan Shah and Another Vs Sufi Liaqa Husain and Another

Sunita Agarwal, J.@mdashHeard Sri Ajit Kumar, learned counsel for the petitioners and Sri Jafar Naiyer, learned Senior Advocate assisted by Sri Saurabh Srivastava, leaned counsel for the respondents. Writ petition No. 3434 of 2001 has been filed challenging judgment and order dated 16.9.2000 passed by respondent No. 2 in Civil Revision No. 17 of 2000 (Sajjada Nashin Sufi Liyaqat Hussain v. Fasahat Hussain Shah and another). Writ Petition No. 3436 of 2001 has been filed against order dated 16.9.2000 passed by respondent No. 2 in Civil Revision No. 18 of 2000 (Sajjada Nashin Sufi Liyaqat Hussain v. Fasahat Hussain Shah and another). It may be noted that both the revisions were consolidated and decided by a common order dated 16.9.2000. Challenge in both the writ petition is impugned order dated 16.9.2000 passed in Civil Revision No. 17 of 2000 and Civil Revision No. 18 of 2000. Thus, both the writ petitions are being decided by a common judgment.

2. Facts as stated in the writ petitions are that the petitioners filed Original Suit No. 702 of 1993 with the relief that the defendant respondent be restrained from raising construction over the portion shown in the plaint map and further they may not raise any projection towards the ''Mazar'' of Rahmat Shah Mian so as to affect the title of the plaintiff. It was stated in paragraph 1 of the plaint that the plaintiff was looking after the ''Mazar'' of Mohd. Inayat Hussain Shah and Mohd. Rahat Hussain Shah situated at plot No. 571. In the said suit, a written statement was filed by the defendant respondent No. 1. It was submitted in the written statement that the defendant respondent No. 1 was owner of plot No. 570 and the ''Mazar'' of Mohd. Abrar and Sri Abdul Aziz Mia existed on the said plot namely plot No. 570. It was further stated that the plot No. 571 is the property of Gaon Sabha and has been recorded as ''banjar'' in the revenue record. The plaintiff/petitioner encroached upon the said plot and had constructed the ''Mazar'' of Mohd. Rahat Hussain Shah. It was also stated in paragraph 8 of the written statement that the plot No. 571 is Gaon Sabha land and the defendant had shifted residences of various people from the plot No. 571 to another place and now he became owner in possession of plot No. 571 on which construction of rooms and shops were done. The ''Mazar'' of Sri Rahmat Hussain Shah had been illegally constructed by the plaintiff on the plot No. 571.

3. During the pendency of the said suit, the Original Suit No. 735 of 1993 was filed by respondent No. 1 on 10.12.1993 in which the petitioners were arrayed as the defendants. The suit No. 735 of 1993 has been filed for permanent injunction. The relief sought in the plaint was to restrain the defendants/petitioners from interfering in the construction being raised over the plot No. 570 area 0-218 over the ''Mazar'' of Janab Aziz Mian and further not to interfere in the possession of the plaintiff. A written statement was filed by the petitioners in Original Suit No. 735 of 1993. It was categorically stated in the written statement that the defendants petitioners had no right or share in plot No. 570. They had no concern with the plot No. 570 and never made any effort to get possession of the said plot. Only dispute raised in the written statement was that while raising construction over the plot No. 570, the plaintiff respondent No. 1 was trying to raise ''Chhajja'' towards the ''Mazar'' of Rahmat Mian and Inayat Shah and that is why the Original Suit No. 702 of 1993 was filed for injunction.

4. During pendency of the Original Suit No. 735 of 1993 an application for amendment of the plaint namely application No. 104-A was filed under Order 6 Rule 17 read with Section 151 CPC. By means of the said amendment in the plaint the prayer was made to add plot No. 571 in the plaint stating therein that the plaintiff respondent No. 1 was owner in possession of the plot No. 571 which is 0.470 Hectares and further relief was sought to grant decree of permanent injunction against the defendant and their agents etc. from interfering in the possession of the plaintiff over the constructed shops and rooms and open land of plot No. 571 area 0.470 Hectare. The said amendment application was rejected by the order dated 22.4.2000 passed by the Civil Judge (Junior Division), Rampur on the ground that the Original Suit No. 735 of 1993 was filed with respect to plot No. 570 and now by way of amendment a new cause of action was sought to be raised in the suit by adding plot No. 571 and seeking injunction with regard to the said plot. It was observed by the Court below by rejecting the amendment application that admittedly six years have passed from the date of filing of the Original Suit on 9.12.1993 and for prohibitory injunction three years limitation is provided in the Limitation Act from the date of cause of action. Relief sought has become time barred and therefore the application was rejected.

5. It may also be noted that another application 110-Ka was filed by the respondent No. 1 in the Original Suit No. 735 of 1993 under Order 6 Rule 7 CPC with the relief that the defendant and its agent be restrained from interfering in the possession of the plaintiff over shops and upon the land existing over plot No. 571 area 0.470 Hectare. The said application was rejected by the order dated 28.4.2000 by the Civil Judge(Junior Division) on the ground that by adding plot No. 571 through proposed amendment, the plaintiff is trying to change the subject-matter of the suit property and that would result in changing the nature of the suit property. The earlier application 104-Ka has already been rejected on 22.4.2000 and therefore the application No. 110-Ka was liable to be rejected.

6. Against rejection of the application 104-Ka, Civil Revision No. 17 of 2000 was filed and against the order dated 28.4.2000 rejecting application No. 110-Ka, Civil Revision No. 18 of 2000 was filed before the Court of District Judge, Rampur. Both the revisions were consolidated and decided by the impugned judgment and order dated 16.9.2000. Both the Civil Revisions No. 17 of 2000 and 18 of 2000 were allowed by the District Judge, Rampur on the ground that if the petitioners'' relief was in respect of the plot about which there was no dispute raised earlier, it cannot be said that entirely a new case was being set up by the plaintiff as the amendment was sought in view of the fact that the plot No. 571 was added by the defendant in his earlier suit No. 702 of 1993.

7. Learned counsel for the petitioners submits that the judgment and order dated 16.9.2000 passed by the District Judge, Rampur allowing both the revisions suffers from illegality and material irregularity. Reason given by the Court below in allowing the revisions and thereby allowing the two amendment applications is totally illegal. He categorically submits that both the suits No. 702 of 1993 and 735 of 1993 were tagged together to be decided by the Court below. However the amendment sought in Original Suit No. 735 of 1993 filed by the defendant respondent No. 1 is misconceived and it would result in changing the nature of the suit as the entire subject-matter of the suit would change.

8. He further submits that the question is not to add some plot in the suit as has been said by the revisional Court. The moot question is as to whether the injunction can be sought with respect to another plot on the basis of title of the plain tiff. Admittedly, initially suit No. 735 of 1993 was filed for injunction only in respect to plot No. 570 on which the ''Mazar of Aziz Mian'' exist. Plot No. 571 is the property adjacent to plot No. 570 and on the said plot ''Mazar of Rahmat Hussain Shah'' exist. Initially the plaintiff had not sought any relief claiming his ownership with respect to plot No. 571. The subject-matter of suit property in Original Suit No. 702 of 1993 is plot No. 571 and in the said suit written statement was filed by the defendant respondent No. 1. The categorical stand taken by the defendant respondent No. 1 is that the plot No. 571 is Gaon Sabha land and has been recorded as ''banjar''. A portion of the said plot has been encroached upon by the plaintiff in Original Suit No. 702 of 1993 and ''Mazar of Inayat Hussain Shah and Rahmat Hussain Shah were constructed. Now the defendant is claiming title over the plot No. 571 and on the basis of alleged title he sought injunction. In any case, the amendment sought could not have been allowed by the Court below as it had resulted in miscarriage of justice.

9. Refuting the submission of learned counsel for the petitioners, Sri Jafar Naiyer, learned Senior Counsel assisted by Sri Saurabh Srivastava appearing for the respondents submits that amendments sought was necessary in the Original Suit No. 735 of 1993 for the reason that in the suit filed by the petitioners namely Original Suit No. 702 of 1993, earlier plot No. 571 was not mentioned in the plaint and by way of an amendment in the plaint the plot No. 571 was added. The amendment was allowed on 16.9.2000. The dispute raised in both the suits namely Original Suit No. 702 of 1993 and 735 of 1993 are with regard to plot No. 570 and 571. The respondent No. 1 has never admitted ownership of the petitioners over the plot No. 571 and therefore, amendment application 104-Ka and application No. 110-Ka were moved in order to avoid multiplicity of the proceedings and with a view to get the controversy decided finally between the parties. As plot No. 571 is the subject-matter of Original Suit No. 702 of 1993, therefore amendment was rightly sought by the plaintiff respondent No. 1 in Original Suit No. 735 of 1993. The cause of action for filing the amendment arose in the month of February, 1999 after the petitioners had amended their plaint in Original Suit No. 735 of 1993. Therefore, the amendment could not have been rejected on the ground that it was time barred. Two revisions filed by respondents were rightly allowed by the Court below and the order passed by the Civil Judge was set aside.

10. Placing reliance upon the judgment of the Apex Court in State of Madhya Pradesh Vs. Union of India (UOI) and Another, , learned counsel for the petitioners submits that the Apex Court has held that it is the settled principle of law that leave to amendment will be refused if it introduces totally a new and inconsistent case or change the fundamental character of the suit. He further placed reliance upon judgment of the Apex Court in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Others, , in submitting that the Apex Court has considered the plea in the amendment application for inclusion of relief of specific performance in a suit filed for declaration of ownership of the appellant society with respect to the suit land and for permanent injunction. Having considered the plea of amendment, the Apex Court has held that inclusion of plea of specific performance by way of amendment virtually alter the character of the suit. Such amendment cannot be allowed. In the case of Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, , the Apex Court has considered the settled principle of law for grant of leave for amendment application. In paragraph 18 of the said judgment it has been stated that "....It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even on merits his claim is liable to be rejected...."

11. On the other side, learned counsel for the respondent No. 1 in the written statement filed by him placed reliance on judgment in the case of Sardar Ajeet Singh v. 2nd Additional District Judge, Bulandshahr and others, 2003 (2) ARC 76. A perusal of the said judgment indicates that in the said case the plaintiff by way of amendment sought to correct the description of the property mentioned in the plaint as the number of the property and the boundaries of the properties in the plaint were not correctly described. As such, the amendment was allowed by the learned Single Judge of this Court. Learned counsel for the respondent No. 1 in his written statement heavily relied upon the judgment of the Apex Court in B.K.N. Narayana Pillai Vs. P. Pillai and Another, . Emphasis has been laid on the observations in the judgment that the purpose and object of the Order 6 Rule 17 CPC is to allow either party to alter or amend pleadings in such a manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts and this Court. The Court while deciding the prayer for amendment should not adopt hyper technical approach. Liberal approach should be the general rule particularly in the cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

12. The facts of the case of B.K.N. Pillai are that the suit was filed for grant of mandatory and prohibitory injunction seeking eviction allegedly on the ground that the defendant in the written statement pleaded that he was not a licensee but a lessee. During the trial, the defendant filed an application for amendment of the written statement to incorporate and 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. Further pleadings was sought to be added that first and the second prayer in the plaint were barred by limitation, his licence cannot be revoked by the grantor u/s 60(b) of the Indian Easements Act, 1882. The prayer for proposed amendments were rejected by the trial Court as also by the High Court on the ground that, if allowed, it would amount to permitting the defendant to withdraw the admission allegedly made by him in the main written statement. The Apex Court observed that the alternative plea sought to be incorporated in the written statement is in fact the extension of the plea of the respondent plaintiff and rebuttal to the issue framed regarding liability of the appellant of being dispossessed on proof of the fact that he was the licensee liable to be evicted in accordance with the provisions of law. The plea sought to be raised is neither inconsistent nor repugnant to the pleas already raised in defence. The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting his prayer particularly when the respondent plaintiff could be compensated by cost. The Apex Court did not agree with the finding of the High Court that the proposed amendment virtually amounted to withdrawal of any admission made by the appellant and that such withdrawal was likely to cause irretrievable prejudice to the respondent. Thus in the facts and circumstances of the said case, the amendment was allowed.

13. In so far as judgment of the Apex Court in Olympic Industries Vs. Mulla Hussainy Bhai Mulla Akberally and Others, , is concerned, in the said case the appeal was directed against the judgment of the High Court in revision where the High Court had rejected the application for permission to file additional counter statement. The Apex Court has allowed the appeal setting aside the order of the High Court and directed that the application must be allowed subject to deposit of cost which was assessed as Rs. 10,000/-. In the case of Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, , the Original Suit was filed for the relief of permanent injunction and possession of the property mentioned at the foot of the plaint. During the pendency of the suit, the amendment was sought alleging therein that the defendant had further encroached into suit property to an extent of 5 ft. x 15 ft. and therefore amendment of the plaint was sought for seeking possession of the said encroached area also. In the written statement filed by the defendant, it was contended that the suit for injunction and possession without seeking a declaration of title was not maintainable. An amendment under Order 6 Rule 17 CPC was filed with the prayer for declaration that the plaintiffs are owner of the scheduled suit property i.e. the property mentioned at the foot of the plaint. The amendment application was rejected on the ground that it was filed at the belated stage. The Apex Court had observed that the law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation, an amendment should not be allowed. The jurisdiction to allow or not to allow an amendment being discretionary, the Court while exercising the said discretion should keep in mind as to whether such an amendment is in the interest of justice. The Apex Court considered the facts of the case and concluded that the Court below had erred in observing that the amendment sought for by the plaintiff introduced a different relief so as to bar the ground of prayer for amendment. Necessary factual basis has already been laid down in the plaint in regard to the title which of course, was denied by the respondent in his written statement which will be an issue to be decided in the trial. Thus, in the fact of the said case it was held that it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief.

14. Lastly, much reliance and emphasis has been laid by the learned counsel for the respondent No. 1 in his written submission on the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, , In the said case, a suit for partition and separate possession of the suit properties as fully described in paragraph 1 of the plaint was instituted. The defendant in their written statement admitted that the plaintiffs with defendant Nos. 1 to 7 were entitled to get 1/2 share in the suit properties. The written statement was filed on 28.2.2003 and an application for amendment in the written statement was filed on 18.6.2003 which was contested by the plaintiff. The said application was allowed by the Court below. On a writ petition filed before the High Court the order allowing the amendment was set aside and the application for amendment was rejected. In the application for amendment of the written statement, the defendant sought to add that the plaintiffs and defendant Nos. 3 to 7 could not acquire right, title and interest in the joint family property as they were illegitimate children of the deceased. In the application for amendment, it was sought to allege that the deceased was initially married to defendant No. 1. As she had no issue, the deceased took defendant No. 2 as his second wife. After coming into force of the Hindu Marriage Act, 1955. The plaintiff contested the application for amendment of written statement by filing a written objection in which the rejection of the amendment was sought mainly on the ground that since the defendant in their written statement had admitted that the plaintiffs and defendant Nos. 1 to 7 were jointly entitled to half share of the suit properties, they could not be permitted to withdraw such admission by amendment of the written statement. It was not permissible for them to withdraw such an admission by amendment of the written statement as it would amount to totally displacing the case of the plaintiff, causing irretrievable prejudice to him. The Apex Court after consideration of the facts and circumstances of the said case had decided that amendment is neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the defendants appellants in the written statement. By such an amendment, the defendants appellants had kept the admission intact and only added certain additional facts which need to be proved by the plaintiff and defendants 2 to 8 to get shares in the suit properties alleged to have been admitted by the defendants appellants in their written statement. The appellants are only raising an issue regarding the legitimacy of the plaintiff and defendant Nos. 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased. Therefore the High Court was not justified in reversing the order of the trial Court and rejecting the application for amendment of the written statement.

15. From perusal of all these cases relied upon by the learned counsel for the respondents it is apparent that all the cases were decided in the peculiar facts and circumstance of that particular case. As the facts an, circumstances of the present case is totally different from the cases discussed above, the judgments relied upon by the learned counsel for the respondents are of no benefit to him. They are distinguishable in nature.

16. Having considered the rival submissions of both the counsels and the judgments relied upon by them in detail, this Court is of the view that there cannot be any quarrel to the proposition that the Court should not adopt hyper technical approach while dealing with the amendment application. Technicality of the law should not be permitted to hamper the Court in the administration of justice between the parties. The amendments are to be allowed in the pleadings to avoid uncalled for multiplicity of litigation. However, it may further be noted that there is no quarrel to the proposition that the general rule, no doubt, is that a party is not allowed to amend and set up a new case or a new cause of action. The expression "Cause of action" for the present purpose would mean that a new claim is made on the new basis instituted by new facts. In the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , the basic principles have been laid down which ought to be taken into consideration while allowing or rejecting the application for amendment has been narrated in paragraph 63 which are as under:

63. On critically analysing both the English and Indian cases, some basic principles emerged which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) Whether the application for amendment is bona fide or mala fide;

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

17. Considering the principles laid down by the Apex Court and the General Rule for consideration of application under Order 6 Rule 17 for amendment, this Court finds that the proposed amendment seeking addition of a different subject-matter to the Suit no 735 of 1993 will virtually change the nature and character of the suit fundamentally. As has been stated by the applicant respondent No. 1 that the cause of action arose in the year 1999 for addition of plot No. 571 in Original Suit No. 735 of 1993 claiming title over the said plot and further seeking relief for injunction with respect to the said plot on account of the fact that the amendment was sought by the plaintiff petitioners in the suit filed by them i.e. suit No. 702 of 1993. Thus, as per the case of the applicant plaintiff in the Original Suit No. 735 of 1993 the cause of action for filing the amendment arose in the year 1999 during pendency of the suit. Moreover, fresh suit or the amendment sought was not barred by limitation on the date of application. In case, the defendants had any right with respect to the plot No. 571, they could have instituted fresh suit with respect to the said property. Moreover, it may also be noted that the dispute between the parties is with respect to plot No. 571 in the Original Suit No. 702 of 1993 filed by the plaintiff/petitioners wherein injunction was sought. In the suit No. 735 of 1993 filed by the respondent, the subject-matter of which was plot No. 570, the petitioners who are defendants had categorically stated in the written statement that they have no concern with plot No. 570. Whereas in the Original Suit No. 702 of 1993, the defendant respondent contested the claim of the plaintiff on the ground that the plot No. 571 is Gaon Sabha land and has been recorded as ''banjar''.

18. In view of the said conflicting pleas taken by the respondent No. 1, allowing the amendment application in the suit No. 735 of 1993 for adding plot No. 571 as subject-matter of the suit will virtually amount to setting up a new case with regard to the said plot wherein the respondent No. 1 claims title over the said plot. The said amendment cannot be said to be bona fide one and allowing said amendment would in fact lead to miscarriage of justice. Such amendment cannot be allowed in view of the settled law with regard to Order 6 Rule 17 CPC in dealing with the whole amendment application.

19. Sri Ajit Kumar, learned counsel for the petitioners also placed arguments on the jurisdiction of the revisional Court in passing the orders impugned and submitted that the power of the revisional Court u/s 115 CPC is limited and the orders of revisional Courts suffer from jurisdictional error. As the Court is satisfied on the merits of the case that the revisional Court should not have allowed the amendment, it does not think it necessary to go into details of the jurisdiction of the revisional Court. In view of the discussions made above, both the orders dated 16.9.2000 passed by the District Judge, Rampur Civil Revision No. 17 of 2000 and Civil Revision No. 18 of 2000 cannot be sustained and are being set aside. Both the application Nos. 104-Ka and 110-Ka for amendment of the written statement filed by the plaintiff in Original Suit No. 735 of 1993 are hereby rejected. In the result, both the writ petitions are allowed with no order as to cost.