High Court · 2009

The petitioner as plaintiff instituted a Title Suit No. 4/02 in the cour t of Civil Judge (Junior Division) No.2 praying for declaration of right, title and interest and also for possession over the suit land and for injunction. The cause of action for the suit is stated to have been arose on 22.7.66 on which d ate suit land was exchanged on 10.1.70 when the money was paid on 15.1.02 when t he defendant instructed the plaintiff for constructing their house and continue d till the date of filing of the suit. At the stage of hearing the plaintiff fil ed an application for amendment of the plaint under Order 6 Rule 17 CPC. From th e amendment application as annexed to this writ petition as well as from the or iginal application submitted in assamese language it is very difficult to unde rstand the exact meaning of proposed amendment. The amendment petition has not b een drafted in a proper manner to understand manner and method of amendment of t he plaintiff and in what manner the amendment has been sought for. Written objec tion was also filed by the defendant wherein it was stated that the proposed ame ndment would change the nature and character of the suit altogether. Misc. case No.2/02 was stated to be filed praying for withdrawal of the suit with liberty to file a fresh application but that was refused by the learned trial court. Le arned trial court after hearing the learned counsel for both the sides vide impu gned order dated 8.4.04 rejected the prayer for amendment. The ground for reject ion of the amendment as disclosed from the impugned order is that the proposed a mendment would change nature and character of the suit. Mr. Khataniar, learned counsel for the petitioner submits that amendment would have been allowed since it will not change the nature and character of the suit. That apart, in view of the brought scope of Order 6 Rule 17 and the amendment petition having been file d before starting of the hearing of the suit, the learned trial court committed jurisdictional error in rejecting the prayer. It is further contended that sinc e the hearing of the suit has not been started the amendment would have been all owed and the amendment would not cause any prejudice to the defendant. I have considered the submission made by the learned counsel for the pet itioner. From the application of the amendment it is very difficult to understand what is the exact amendment as sought for by the plaintiff. The learned trial c ourt rejected the prayer for amendment on the ground that if the amendment is al lowed, it would change the nature and character of the suit. As indicated above the suit of the plaintiff is for declaration of right, title and interest and fo r confirmation of possession. By the proposed amendment, the plaintiff sought to incorporate in the cause title that in the event of plaintiff is dispossessed from the suit land than the suit land be recovered from the possession of th e defendant. Plaintiff also prayed for amendment of the paragraph 3 of the plain tiff which substantially affect the statements made therein. Prayer portion of the plaintiff is sought to be amended by adding Schedule ’Ka’ and ’Kha’and the s chedule also sought to be bifurcated by adding separate schedule as Schedule ’ Ga’ and the same be treated as Schedule ’Ka’ and ’Kha’ with certain modificati on in the boundaries. In the original plaint the basic cause of action of the su it was disclosed at paragraph 3,4,5,7 and 8. Those cause of action has been ment ioned at paragraph 10 of the plaint. The nature of suit cannot be changed from the original one. By way of am endment prayer also has been made for recovery of possession from the suit land in the event the plaintiff is dispossessed from the land but none the less the n ature would remain same. In order to get the decree declared it would be bounden duty of the plaintiff to prove the cause of action and the averment made in the suit. The question to be considered is as to whether the addition of some new f acts and certain change of the existing facts would change the nature and charac ter of the suit. The power of amendment of the pleading has come out after the amendment of 1999 CPC. The power of amendment is restrained by adding the proviso of Orde r 6 Rule 17 providing that application of amendment shall be allowed if the cour t comes to the conclusion that in stead of due diligence party could not have ra ised the matter before amendment of the suit. In the instant case neither of the proviso would be applicable inasmuch as trial of the suit was not commenced at the time of filing of the amendment petition. The power to allow the amendment i s very wide one and the court is to take liberal approach while considering such prayer for amendment. The basic prayer for amendment is that whether such amen dment is necessary for the just decision of the case and by way of amendment n ew case or new cause of action is not to be arised. Technicalities of law shoul d not be permitted to hamper the administration of justice between the parties a nd amendment are also required to be allowed referring the necessary of amendmen t. Falsity or otherwise of the proposed amendment is not required to be consider ed at the time of consideration of the prayer for amendment. Normally when certa in facts are sought to be brought by way of amendment in support of the cause of action already pleaded in the plaint, amendment is required to be allowed unles s covered by the proviso of Order 6 Rule 17 of the CPC. A perusal of the application for amendment discloses that the plaintiff proposed to amend the plaint in support of the cause of action. No new cause of action can be said to have been apprehended by way of amendment. The plaintiff i s also entitled to claim the alternative relief if not earlier prayed for by way of amendment and when the amendment would not change the nature and character o f the suit. The facts which has been pleaded by the plaintiff in support of the cause of action is required to be proved by the plaintiff and certain facts pr oposed to be incorporated in the plaint would advance the cause of justice and i t would be in the aid of proper and effective disposal of the suit. On perusal of the plaint as well as proposed amendment it cannot be said that by way of suc h amendment the nature and character of the suit would be changed. In view of th e above discussion I am of the opinion that the learned Munsiff has exercised his jurisdiction with material irregularities justifying interference by this co urt. Accordingly, it is interfered with and the impugned order is set aside and quashed. The amendment as prayed for is allowed and it is directed that the pla intiff shall file an amended plaint within a period of three weeks from to-day.