The Union of India v. Defence Colony Shahpur Danapur

Patna High Court CWJC No.12601 of 2011 (5) dt.13-12-2013 Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’) for amendment of the plaint, has been allowed. The respondents had filed the said suit against the petitioners in which the relief claimed was for declaration of their title over the suit land as mentioned in Schedule A of the plaint and also for injunction to restrain the defendants from erecting the wall, digging trenches and making obstruction over the suit property which was used as a passage. The petitioners appeared in the suit and also filed their written statement and thereafter witnesses were also being examined on behalf of the respondents - plaintiffs. At this stage, the respondents filed an application under Order VI Rule 17 read with Section 151 of the Code by which the amendment sought was exhaustive and in effect the relief now sought in the suit was that their easementary right over the suit land be upheld. The petitioners filed their rejoinder objecting to such amendment basically on two grounds. Firstly, that the amendment was not permissible under the provisions of the Code as it had been sought after the trial had commenced and secondly, that the nature of the suit would change if the amendments were allowed. In this connection, learned counsel submits that the respondents had already examined four witnesses which clearly shows that the trial of the suit had proceeded to a large extent. As 3 Patna High Court CWJC No.12601 of 2011 (5) dt.13-12-2013 far as the question of the nature of the suit, it is submitted that initially the respondents had filed the suit for declaring their title over the suit land but by the proposed amendment, they had changed the nature of the suit inasmuch as now instead of claim of title over the suit land, they wanted a declaration with regard to having easementary rights over the suit land. Thus, in the submission of learned counsel for the petitioners, the amendment should not have been allowed both on law as well as on the facts. For such proposition he has relied upon a decision of the Hon’ble Supreme Court in the case of Revajeetu Builders & Developers v. Narayanaswamy & Sons. reported in 2009 (10) SCC 84, the relevant being at paragraph no. 63. Learned counsel for the respondents submits that the amendments which were sought were basically to ensure that injustice was not done to the plaintiffs and that the relief which was now sought was based on the averments which were already existing in the plaint and not on the basis of any fresh fact. It is submitted that the plaintiffs had made specific averments in the plaint that they were enjoying the facilities of the road for egress and ingress. It is submitted that the petitioners having been ex- defence personnel, having built their houses on private lands were using the suit land for access to the road and the same was not objected for a very long time by the authorities. It is also 4 Patna High Court CWJC No.12601 of 2011 (5) dt.13-12-2013 submitted that there is no danger to security if they are allowed to use the land in question. Learned counsel has also relied on the decision of the Hon’ ble Supreme Court in the case of Revajeetu Builders & Developers (supra), especially para 60 (1). Upon hearing counsels for the parties, this Court is of the opinion that the petitioners have been able to make out a case for interference. The settled fundamental law with regard to allowing amendment is that by the proposed amendment, the nature of the suit should not change. In the present case, it cannot be disputed or there is any controversy that the suit initially was brought seeking declaration of title of the plaintiffs to the suit land. This being the position, the subsequent amendment by which a declaration was sought with regard to them having easementary right, not only changes the nature of the suit but also gives up the initial claim. Thus, the reliefs sought through amendment were divergent and in fact contradictory to each other. The two reliefs cannot be balanced when on the one hand the relief sought is on the basis of having absolute title and right over the suit land whereas on the other hand the relief is sought on the basis of having easementary rights. Accordingly, on this short point, this Court is of the opinion that the order needs to be interfered with. However, since the petitioner has also raised objection with regard to the maintainability of amendment application at the 5 Patna High Court CWJC No.12601 of 2011 (5) dt.13-12-2013 stage of the suit this Court would also dwell on that aspect. Though after commencement of trial of the suit, such amendment is not permissible but the Code itself gives the discretion to the Court concerned to allow the amendment if it comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. This Court cannot give the benefit of doubt to the respondents with regard to the amendment sought under the proviso of Order VI Rule 17 of the Code to the respondents for the simple reason that they being the owners of the land on which they have built their houses, cannot be expected to be ignorant of the fact whether the land which they claimed in the suit belonged to them or belonged to the defendants – petitioners and that this basic fact with regard to title could not be raised by the party despite due diligence. Thus, on this ground also this Court finds that the amendment which was sought by the respondents, and allowed by the Court below, could not have been allowed in terms of the provisions of Order VI Rule 17 of the Code. The Court is tempted to reiterate the observations of the Hon’ble Supreme Court in the case of Revajeetu Builders & Developers (supra) in which at para 63 while summing up the factors to be taken into consideration while dealing with applications for amendments, it has been held that the Court also has to be 6 Patna High Court CWJC No.12601 of 2011 (5) dt.13-12-2013 mindful as to whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case. In view of the discussions made hereinabove, this Court finds that in the facts and circumstances of the case, the amendment could not have been allowed and thus the order impugned cannot be sustained. Accordingly, the order impugned dated 07.03.2011 passed in Title Suit No. 50 of 2002 by the Munsif, Danapur is set aside. The petition filed seeking amendment by the respondents on 27.01.2011 under Order VI Rule 17 read with Section 151 of the Code also stands dismissed. The Court shall proceed with the trial of the suit on the basis of the original plaint. The application stands allowed in the aforementioned terms. Prakash/- (Ahsanuddin Amanullah, J)