Case Law Details
Gurnam Singh Vs Gurpreet Singh (Jammu & Kashmir High Court)
The respondents had originally instituted a suit on 13 September 2018 seeking a declaration that a Will dated 11.08.1998 was null and void insofar as it related to land allotted to the displaced family of the deceased allottee, along with consequential relief for quashing the mutation sanctioned on the basis of the Will. The petitioner filed a written statement raising preliminary objections that the suit was barred by limitation and that a suit for declaration without seeking possession was not maintainable.
The respondents thereafter filed an application seeking amendment of the plaint to incorporate the relief of recovery of possession. They stated that the omission occurred due to inadvertence. They also explained that the application could not be moved earlier as their previous counsel had been suffering from serious ailments requiring repeated medical treatment and that further delay occurred during the COVID-19 pandemic.
The petitioner opposed the amendment, contending that it had been filed nearly four years after institution of the suit and was therefore grossly belated. It was argued that the omitted relief of possession could not subsequently be introduced by amendment and that the application was barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC). Reliance was placed on the Supreme Court decision in L.C. Hanumanthappa (Dead) through LRs v. H.B. Shivakumar.
After hearing the parties and examining the record, the High Court observed that it was undisputed that issues had not yet been framed and the trial had not commenced when the amendment application was filed. The Court reiterated that amendments sought before commencement of trial should ordinarily be allowed if they are necessary for effective adjudication of the real controversy between the parties and for avoiding multiplicity of proceedings. It further held that mere delay is ordinarily not a standalone ground for rejecting a pre-trial amendment, particularly where the delay has been explained.
The Court relied upon the principles laid down by the Supreme Court in Life Insurance Corporation of India v. Sanjeev Builders Private Limited. The Supreme Court had held that Order II Rule 2 CPC operates as a bar to a subsequent suit and not to amendment of pleadings. It further held that amendments necessary for determining the real controversy should ordinarily be permitted unless they introduce a time-barred claim, change the nature of the suit, are mala fide, withdraw admissions conferring rights on the opposite party, or deprive the other side of a valuable defence. The Supreme Court also emphasised that courts should adopt a liberal approach to amendments sought before commencement of trial, particularly where the amendment concerns relief founded on facts already pleaded.
Applying these principles, the High Court held that the respondents’ amendment sought only to incorporate an additional consequential relief based on the facts already pleaded in the plaint. The trial had not commenced, and the respondents had provided an explanation for the delay. The Court found no jurisdictional error in the Trial Court’s order allowing the amendment and held that the order was reasoned and in accordance with law.
The High Court further observed that the Supreme Court decision relied upon by the petitioner in L.C. Hanumanthappa was not applicable to the facts and circumstances of the present case.
Holding that interference under Article 227 of the Constitution of India was unwarranted, the High Court concluded that the petition was misconceived and dismissed it, thereby affirming the Trial Court’s order permitting amendment of the plaint to include the consequential relief of recovery of possession.
FULL TEXT OF THE JUDGMENT/ORDER OF JAMMU & KASHMIR HIGH COURT
1. The petitioner has assailed the order dated 05.04.2023 passed by the learned Special Mobile Magistrate (Passenger Tax & Shops and Establishments Act), Jammu (hereinafter referred to as the ‘Trial Court’) in the suit titled ‘Gurpreet Singh and others vs. Gurnam Singh and others’. By virtue of the impugned order, the application preferred by the respondents seeking amendment of the preamble and prayer clause of the suit to incorporate the recovery of possession of the suit land as a consequential relief has been allowed.
2. The petitioner has assailed the impugned order on the ground that the suit was instituted by the respondents on September 13, 2018, without seeking the essential relief of possession of the suit land mentioned in the Will. It is submitted that once the petitioner had explicitly objected in his written statement that a suit for declaration simpliciter was not maintainable, the application for amendment could not have been allowed by the learned Trial Court. This is particularly true given that the application was highly belated, having been filed on July 12, 2022, nearly four years after the institution of the suit. Furthermore, the petitioner contends that the amendment application was barred by the principles enshrined under Order II Rule 2 of the Code of Civil Procedure (CPC).
3. Mr. Manpreet Singh Saini, learned counsel appearing for the petitioner, has submitted that the amendment application could not have been allowed by the learned Trial Court after an inordinate delay of four years from the institution of the suit. He, therefore, submits that the instant petition be allowed and the impugned order be quashed. In support of his contentions, the learned counsel placed reliance upon the judgment of the Hon’ble Supreme Court of India in L.C. Hanumanthappa (Dead) through LRs v. H.B. Shivakumar, (2015) 14 SCC 974.
4. Per contra, Raghav Gaind, learned counsel for the respondents has argued thatdue to inadvertence, the relief of possession could not be sought initially. The application for amendment could not be filed earlier as the previous counsel representing the respondents was battling multiple serious ailments, requiring frequent travel to Delhi for medical treatment. He further argued that since issues have not yet been framed in the suit, the trial has not commenced. It is settled law that courts should adopt a liberal approach in allowing amendments to pleadings at a pre-trial stage
5. Heard learned counsel for the parties and perused the record.
6. Record depicts that the respondents had filed the suit for declaration to the effect that the alleged will executed on 11.08.1998 by Pyara Lal S/O Sh. Pheru Ram R/O Korotana Kalan, Tehsil R. S. Pura, District Jammu is null and void, being not applicable to the land allotted to the Displaced Persons Family of Late Sh. Para Lal over which occupancy rights were conferred on the allottee family comprised in Khasra No. 103 (04 Kanals 14 Marlas), 106 (01 Kanal 08 Marlas), 107 (08 Kanals 08 marlas), 108 (02 Kanals 02 Marlas), 109 (04 Kanals 08 Marlas) and 110 (03 Kanals 07 Marlas) situated at Suchetgarh, Tehsil R. S. Pura, District Jammu, with the consequential relief of quashing the consequential mutation No. 910 of Suchetgarh attested on the basis of said will.
7. The petitioner filed the written statement raising preliminary objections inter alia regarding the maintainability of the suit. It was contended that the suit was barred by limitation and that a suit seeking declaration of title without praying for the relief of possession was inherently not maintainable.
8. Thereafter, the respondents preferred an application seeking to amend the preamble and the prayer clause of the plaint to incorporate the relief of recovery of possession as a consequential relief. The respondents asserted that this relief was omitted initially due to sheer inadvertence. In paragraph 3 of the application, it was specifically pleaded that the amendment could not be moved earlier because their erstwhile counsel was suffering from serious ailments, and the subsequent delay was caused by the outbreak of the COVID-19 pandemic.
9. The petitioner resisted the amendment application, contending that it was grossly belated, having been filed nearly four years after the institution of the suit. The petitioner submitted that since the relief of possession was conspicuously omitted at the first instance, it could not be introduced subsequently by way of an amendment. Additionally, a specific plea was raised that the application was hit by the statutory bar under Order II Rule 2 of the Code of Civil Procedure (CPC).
10. The law is well settled that courts must liberally permit amendments to pleadings prior to the commencement of the trial. In the present case, it is undisputed that the trial had not yet commenced and issues were yet to be framed when the respondents moved the amendment application. Pre-trial amendments of the pleadings are required to be allowed, if the amendments are necessary to fully and effectively adjudicate the real controversy between the parties and also to prevent a multiplicity of proceedings. Furthermore, while a mere delay in filing is rarely a standalone ground to reject a pre-trial amendment, the respondents have, in any event, sufficiently explained why this relief could not be sought at the first instance
11. In Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another, 2022 INSC 896, Hon’ble the Supreme Court of India has held as under:
“70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
i. if the amendment is required for effective and proper adjudication of the controversy between the parties, and
ii. to avoid multiplicity of proceedings, provided
a. the amendment does not result in injustice to the other side,
b. by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
c. the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
i. By the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
ii. The amendment changes the nature of the suit,
iii. The prayer for amendment is malafide, or
iv. By the amendment, the other side loses a valid defence.
v. In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
vi. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
vii. Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
viii. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
ix. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
x. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
xi. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)
(emphasis added)
12. After perusing the order impugned, this Court does not find commission of any jurisdictional error on part of the learned trial court while allowing the application preferred by the respondents for amendment of the plaint. The order impugned is well reasoned and in accordance with law, therefore, interference by this Court under Article 227 of the Constitution of India is not warranted at all.
13. Moreover, judgment in case titled as C. Hanumanthappa (Since Dead) represented by his Lrs. Vs. H. B. Shivakumar reported in 2015 AIR (SC) 3364 relied upon by the learned counsel for the petitioner is not applicable to the present facts and circumstances of the case.
14. For what all has been discussed hereinabove, the present petition is found to be misconceived and the same is accordingly
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