IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12778 of 2011 Udeshwar Prasad Singh Versus Most.Raj Kumari Devi & Ors ---------------------------------- 10. 13.10.2011 This writ application has been converted from the civil revision application. In the civil revision notices were issued in admission matter. The respondents have already appeared and thereafter the revision application has been converted to this application under Article 227 of the Constitution of India. Heard the learned counsel for the petitioner. Nobody appeared on behalf of the respondents. This application under Article 227 of the Constitution of India has been filed against the order dated 3.4.2007 passed by Civil Judge (Junior Division), Rosera in Title Suit No. 22 of 2004 whereby the learned court below rejected the amendment application filed by the petitioner on the ground that the amendment sought for by the plaintiff will change the nature of the suit. The learned counsel for the petitioner submitted that earlier the petitioner filed the suit for injunction only praying for restraining respondents from interfering with the peaceful possession of the petitioner plaintiff. Thereafter by amendment the plaintiff sought for relief for declaration of title over the suit property and other ancillary reliefs. The learned 2 counsel submitted that only issues have framed still today and no evidence has been adduced but the learned court below rejected the application on the ground that it will change the nature of the suit. If the amendment is not allowed then the plaintiff will be compelled to file another suit and moreover according to the Apex Court the pre-trial amendment should be allowed liberally. From perusal of the impugned order it appears that the learned court below has mentioned that only issues have been framed in this case. In such circumstances there is no question of any prejudice to the defendants arises. Moreover, if the prayer is not allowed the plaintiff will have to file another suit. It is well settled principles of law that 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 amendments is wide and can be exercised at any stage of the proceeding in the interest of justice on the basis of guidelines laid down by various High Courts and the Apex Court. It is also well settled that the court while deciding prayer for amendment should not have a hypertechnical approach. The liberal approach should be the general rule particularly, in cases where the other side can be compensated with the cost. Technicalities of law should not be permitted 3 to hamper the courts in the determination of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigations. In 2002 (2) PLJR SC 187 Prem Bakshi Vs. Dharma Dev the Apex Court has held that it is almost inconceivable how mere amendment of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result miscarriage of justice. After all amendments of pleadings would not amount to decision on the issue involve. They only would serve advance notice to the other side as to the plea which a party might take of. Admittedly, in this case only issues have been framed and the parties are yet to adduce evidence. Therefore, it is pre-trial amendment. In (2008) 14 SCC 364 Rajkumar Gurawara (dead) through LRs Vs. S.K. Sarwagi and Company Private Limited and another the Apex Court has held that to put it clear, Order 6 Rule 17 C.P.C. confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of controversy between the parties shall be permitted to be made. Pre- trial amendments are to be allowed liberally then those 4 which are sought to be made after the commencement of the trial. As in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment to be made. In the latter case, namely after commencement of trial particularly, after completion of the evidence the question of prejudice to the opposite party may arise and in such event it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso to Order 6 Rule 17 of the Code of Civil Procedure. Considering the above facts and circumstances and the law laid down by the Apex Court, in my opinion, the impugned order is unsustainable in the eye of law. The learned court below could not have rejected the application for amendment when the said application for amendment is filed prior to the evidence started in the case. I, therefore, find that the learned court below has refused to exercise a jurisdiction vested in it by law and if the order is allowed to stand it will occasion failure of justice. Accordingly, the impugned order dated 3.4.2007 passed by Civil Judge (Junior Division), Rosera in Title Suit No. 22 of 2004 is hereby set aside and this application is allowed. The amendment application filed by the plaintiff petitioner is also allowed. S.S. (Mungeshwar Sahoo, J.)