"•"^,,. . y-h, '%, 'if' ^•••^ ~% <- •Wf^ ^ y ftpfi. /\ HIGH COURT OF CHHATTISGARH AT BILASPUR ^ WRIT PETITION (0 No. 7071 of2006 PETmONERS RESPOT<DENT' 1. Smt. Asharani Gupta, widow of Late Dr. Mahaveer Singli Gtipta, Aged about 71 years. 2. Harshveer Singh Gupta, S/o Late Dr. Mahaveer Singh Gupta, Aged about 51 years. 3. Yashveer Singh Gupta, s/o Late Di'. Mahaveer Singli Gupta, Aged about 46 yeai-s. 4. Jaiveer Singh Gupta, S/o Late Dr. Mahaveer Smgh Gupta, Aged about 43 years. Petitoiaers/plaintiffs No., 1 to 4 above all residents of Near Chandi Mandir, Sliivpara, Durg, District: Durg, Chhattisgarh. VERSUS Siddharth Shukla S/o Late Dr. S.K.Shukla, Aged about 37 yeai-s, R/'o House No. HIG.B/5, Housias Board Area, Raipur Naka, G.E. Road, Durg, Tehsil & District : Durg, WRTTPETI21CTLUNDER AR.23CLE227 OF THE CONSTnUTION OF INDIA SB: Hon'ble Shri Satish K. Asnlhotri, J. Present: Shri Sanjay K..' Advocate for Shi-i Amiva Agrawal, Advocate wifh Shi-i Sourabh Shamia, petrtioners. Tiwari, Advocate forthe respondent. (Passed on 06m day of Februan', 2009) By tiiis petition, the petitioners seek to ehallenge the order dated 17.10.2006 (Annexure P/8) passed by the 4th Additional District Judge, Durg, in Civil Suit No. 4-A'2005, whereby fhe application filed by fhe petitioners/plaintifis under Order 6 Rule 17 of fhe Code of Civil Procedure, 1908 (for short 'the CPC') (Annexure P/6) for amendment of tlie plaint, has been rejected. The facts, in nutshell, are that the petitioners/plamtiffs filed a civil suit being No. 4-A/2005 (Amiexure P/'l), for eviction and permanent mjunction stating that the plot No. 85 was allotted by fhe Bhilai Steel Plaat in the name of husband of the plaintiiF No. 1 i.e. Late Dr. Mahaveer Singh Gupta, upon which tfae Dr. Gupta constructed a buildmg and started a clinic. TIie said climc was being mnjointly by Dr. Gupta aad one Dr. Smt. Usha Shuk'ia, after taking permissioa from ihilai Steel Plant. After the death of Dr. Gupta. his wife made an application to fhe Bhilai Steel Plant for carrying out aaother business in the said building. Dr. Usha Shukla was allowed to contiaue her climc ia the said building till the application for chaiige ofbusiness -was ailowed. Thereafter, the petitioners;;plamtij:fs, at several occasions, asked Dr. Shukla to remove her belongings kept in the said buildiiig. The respondent/defendant took the key Aom the petitioners stating that he shall remove all the belongiass kept in the building but he did not retumed fhe said key. The petitioners/plaintiffs sent a notice through their Advocate to the respondent/'defendant on 7.2.2005 stating fherem that the respondenVdefendant must retum the key wifhin 7 days of the receipt ofthe notice. Since the respondent'defendant did not retum the key, the petitioners/plaintifFs filed the above-stated suit. During the pendency of the suit the petitioners/plaiatiiS filed an application under Order 6 Ru!e 17 ofthe CPC (Annexure P/2). The said application was allowed. The rsspondent/defendant filed his written statement on 04.05.2005 (Armexure P/3). The petitioners/plaintiffs also filed an application under Order 39 Rule 1 and 2 read wifh section 151 ofthe CPC for grant oftemporarsr iniunction, which was allowed bv the trial court on 27.5.2006 (Annexure P/4). Tliereafter, on 19.6.2006, fhe petitioners/plaintifFs again filed an application under Order 6 Rule 17 for amendment in the plamt (Annexure P/6). The respondent/defendaat replied to the said application on 5.8.2006 (Annexure P/7). The leamed Trial Court, after hearing both Ifae parties, rejeeted fhe said application vide ord.er dated 17.10.2006 (Annexure P/8). Hence.this petition. Shn Sanjay K. Agrawal, leamed counsel appearmg for the petitioners/ plamtifls submits that the Court below ought to have allovved the application for amendment tiled by the petitioners/plaintiffs as the amendment has been sought prior to conimeacement ofthe trial. Neither the issues have been framed nor the case has been fixed for evidence. The amendment sought will not change the nature ofthe suit, Therefore, no prejudice is gomg to be caused to the respondent'' defendant if the said application is allowed. B 7. Shri Amiva Kant Tiwari, leamed counsel appearins for the respondent/defendant fairly submits that siace the trial has not coiimienced, the said application could have been allowed by the Trial Court. have heard leamed counsel for the parties, pemsed the pleadings aad documents appended thereto. Order 6 Rule 17 ofthe C.P.C provides for amendment ofthe plaint which reads as under: "17. Amendment of pleadmgs- The Court may at any stage of the proceedings allow eifher party to alter or amend his pleadings in such manner and on such terms as may be just, and all such ainendiiients shall be made as may be necessarv' for tiie purpose of determining the real questions iii controversy between the parties: Provided fhat no application for amendment shall be allowed after the trial has cotmnenced, unless the Court comes to the conclusion that inspite of due diligence, the pai-ty coiild not have raised the matter before flie conmiencement oftrial. The basic requirement is fSiat the amendment is permissible if it is necessarv' for the purpose of detemuning tlie real question in controversy between the parties. The amendment sought for by the plaintiffs/petitioners may detemiine the real question between tlie parties m fhe pending suit aad furthermore, fhe amendment has been souaht before conBnencement ofthe trial. The Hon'ble Supreme Court, iu the matter ofState ofA.P. and others v. Pioneer Biiiiders,A.P.. has settled the principles goveming amendment ofthe pleading which reads as under: "21.......Nevertheless. one distinct cause of action camiot be substituted for anotliei- nor tlie subject-matter ofthe suit can be changed bv means ofan amendment. Tlie following passage from the decision of the Viwy Council in Ma Shwe Mya v. Maung Mo Hnaung succuietly sunuTiarieses the principle which may be kept in mind while dealing with the prayer for ainendment oftlie pleadings: (2006) 12 SCC 119 10. 11. "Ali mles of court are nothing but provisions intended to seeure the proper adniiiiistration of justice, and it is therefore essential fhat they should be made to serve aiid be subordiiiate to tliat purpose, so that fall powers of amendment must be enjoyed and should always be liberally exercised, but nonefheless no power has yet been iiven to enable one distiiict cause of action to be substituted for another, nor to change, by means of amendiiient, the subject-matter of the suit......." Further, in Vidyabai & Others v. Padmakstha & another^, the Hon'b!e Supreme Court observed as under: "14. It is the primal duU'- ofthe courtto decide as to whether sueh aa ainendinent is necessary to decide fhe real dispute between the parties. Only if such a condition is fiilfilled, the amendineat is to be allowed. However, proviso appended to Order \rl Rule 17 of the Code restricts the power of tlie court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this natiire is limited. Thus, unless the junsdictioaal fact, as envisaged thei-ein, is found to be easting, the court will have no jurisdiction at all to allow the amaidment ofthe plaint." Applying fhe well settled prmciples of amendment of pleadings to the facts of the case wherein amendmeirt is sought before connnencement ofthe trial whereby no prejudice is going to be caused to fhe opposite party, the order impugned (Annexure P/8) rejecting the application for amendment ofthe plaint deserves to be set aside. In view ofthe foregoing and for the reasons mentioned hereinabove, the petition is allowed. No order asto costs. 12. Consequently, iaterim reliefsranted 011 03.01.2007 stands vacated. Amit Sd/- Satish K.Agnaiotri Judge 2009 (1) Suprems 238