Judgment Summarized by Delhi Law Academy – Jaipur
- In a suit for possession of land and for permanent injunction restraining the defendants from alienating the land by way of sale, exchange, gift etc., the plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking amendment of the plaint by making a prayer for declaring the judgment and decree dated 20-7-1993 passed in Civil Suit No. 135 of 6-2-1990 entitled Major Singh v. Balbir Kaur as null and void and ineffective against the rights of the plaintiff.
The application for amendment was dismissed mainly on the ground that the same has been filed without explaining the alleged inordinate delay. It was further held that the proposed amendment of the plaint was likely to change the foundation of the suit by introducing the distinct cause of action.
The purpose and object of Order 6, Rule 17, C.P.C. is to allow either party to alter or amend his pleadings in such 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 the Hon’ble Supreme Court of India.
It was held in AIR 1967 SC 96, AIR 1974 SC 1126, AIR 1978 SC 484 that the object of the rule was to decide the rights of the parties and not to punish them for their mistakes, by allowing the amendment of the pleadings in the appropriate cases. The exercise of such far-reaching discretionary power is governed by judicial considerations and wider the discretion greater has to be the care and circumspection on the part of the Court. On the basis of the different judgments it is settled that the following principles should be kept in mind in dealing with the applications for amendment of the pleadings:
(i) all amendments should be allowed which are necessary for determination of the real controversies in the suit;
(ii) the proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original lis was raised;
(iii) inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment.
(iv) proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs;
(v) amendment of a claim or relief barred by time should not be allowed;
(vi) no amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time;
(vii) no party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
(viii) the delay in filing the petitions for amendment of the pleadings should be properly compensated by costs;
(ix) error or mistake which if not fraudulent should not be made on ground for rejecting the application for amendments of pleadings.
It is true that amendment cannot be claimed as a matter of right and under all circumstances. The circumstances under which the prayer for amendment of the pleadings is to be allowed, as indicated hereinabove, are general and not exhaustive. The circumstances may differ from case to case and it would depend upon the facts of each individual case keeping in view the object that the Courts are to do substantial justice and not to punish a party on technical grounds. If the result of the application is only to force a party to start fresh litigation, such an approach must be discouraged and the parties allowed to litigate in the same lis with respect to the subject matter of the dispute without changing its basic character of the nature of the litigation.
It has been conceded by the learned counsel for the respondents that the plaintiff can file a fresh suit challenging the judgment and decree dated 20-7-1993 passed in Civil Suit No. 135 of 6-2-1990. It follows, therefore, that the relief claimed is not barred by time and by the proposed amendment no vested right of the respondent would be taken away. The amendment does not defeat any legal right allegedly having accrued to the opposite party and the delay in filing the petition for amendment can properly be compensated by costs.
Keeping in view the principles required to be kept in mind while dealing with the application for amendment as enumerated herein above, I am of the opinion that the Court below was not justified in rejecting the application of the petitioner-plaintiff vide the order impugned in this petition. The delay in seeking amendment could well be compensated by awarding costs.
Under the circumstances, the order impugned in the revision petition is set aside and the plaintiff is permitted to amend the plaint subject to payment of Rs. 1000 as costs.
There is consistent and reliable evidence establishing that all the accused had attacked the house of the informan