Manoj Misra, J.—Heard Sri Amit Krishna for the defendant-revisionist and perused the record.
2. The instant revision has been filed against an order dated 30.11.2016 passed by the Additional Civil Judge (Sr. Div.), Court No. 1, Muzaffar Nagar in Original Suit No. 408 of 2011 by which amendment application 71 Ka filed by the plaintiff-respondents seeking certain amendments in the plaint, has been allowed.
3. A perusal of the record would go to show that the original suit no. 408 of 2011 was instituted by the plaintiff-respondents through their natural guardian/mother (Smt. Pushpa) for injunction against the defendants so as to restrain them from transferring the suit property and from evicting the plaintiffs. During the pendency of suit, amendment application was filed stating that the defendant no.1, after institution of the suit, had sold the property in dispute on 21.09.2015 to a non party for which she had no right and therefore the said sale be declared null and void and the vendee be impleaded as one of the defendants. In addition to above, some other corrections which were in the nature of removing typographical mistakes were also sought. The court below by the impugned order allowed the amendment application.
4. Learned counsel for the revisionist by placing reliance on a decision of this Court in Aditya Kumar Vajpai v. Vinod Kumar Tripathi and others 2014 (2) ARC 530 has submitted that where by amendment the suit for permanent prohibitory injunction is sought to be altered to that of declaration, the nature of the suit alters therefore such amendment ought not to be allowed.
5. I have considered the submission of the learned counsel for the revisionist.
6. In Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341, it was observed that 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 for doing full and complete justice between the parties.
7. In Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559, the question was whether in a suit for permanent prohibitory injunction which remained pending for 11 years the relief for declaration and recovery of possession should be allowed to be added by way of amendment or not. While allowing such amendments, in paragraphs 7 to 11 of the judgment, as reported, the apex court observed as follows:
"7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff''s revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.
8. In Rukhmabai v. Lala Laxminarayan AIR 1960 SC 335 this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well-settled rule of practise not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.
9. Order 6, Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma v. Mamtha Shenoy.)
11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed."
8. It is thus clear that pre-trial amendments which are required to address the real controversy between parties in the suit are not to be disallowed ordinarily, keeping in mind that it prevents multiplicity of suits, unless it seriously prejudices the interest of the other side.
9. It is equally well settled that while considering the amendment application the Court is not required to address the merit of the plea sought to be incorporated {(2006) 4 SCC 385: Rajesh Kumar Aggarwal v. K.K. Modi; (2007) 6 SCC 167: Andhra Bank v. ABN Amro NV Bank; (2008) 3 SCC 717: Usha Devi v. Rijwan Ahmed}.
10. In view of the legal position noticed herein above what is to be seen is whether the basis of the case changed by the proposed amendment or not as also whether the said amendment causes serious prejudice to the revisionist.
11. In the instant case, the suit was instituted by claiming that the suit property was a joint property and, therefore, without partition the defendants cannot sell any specific portion thereof nor they could evict the plaintiffs from any portion thereof. As sale deed was executed during the pendency of the suit, the amendment was sought to declare the sale void on the basis on which the suit for obtaining permanent prohibitory injunction was instituted.
12. This Court therefore finds that by the amendment, the basis of the suit has not changed. The relief added by way of amendment is to avoid multiplicity of the proceedings. Further, as it is not the case of the defendant-revisionist that the amendment was hit by the proviso of Order 6, Rule 17 C.P.C., this Court finds no good reason to interfere with the order passed by the court below. More so, when the revisionist has failed to demonstrate as to what prejudice has been caused to her by allowing of the amendment.
13. The revision is dismissed.
