IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18600 of 2011 Sadat Kamal Versus Dr.Sunil Kumar Bose & Ors ---------------------------------- O R D E R 3. 16.11.2011 1. Heard the learned counsel Mr. Ashok Kumar on behalf of the petitioner and learned senior counsel Mr. Kamal Nayan Choubey on behalf of the respondents. 2. The plaintiff petitioner has filed this application under Article 227 of the Constitution of India against the order dated 11.7.2011 passed in Title Suit No. 48 of 1990 passed by Munsif -2nd, Rohtas at Sasaram whereby the learned court below rejected the amendment application filed by the petitioner under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure. 3. The petitioner filed the aforesaid suit for removal of encroachment and illegal construction made over plot No. 404 under khata No. 32, plot no. 405 under KHATA No. 26 and plot no. 431 under khata No. 150. After ten years the defendant appeared and filed written statement on 18.8.2001. The evidences of both the parties were closed and suit was posted for hearing on 4.6.2003. Thereafter on 16.9.2006 the plaintiff filed an application for appointment of survey knowing pleader Commissioner alleging that the defendant in 2 the meantime is gradually encroaching and erecting brick walls over plot No. 431. Pleader Commissioner was appointed by terms of order dated 23.1.2004 to calculate the actual area encroached by defendant No.1. The pleader Commissioner submitted report which was rejected and another pleader Commissioner was appointed on 4.1.2007 who submitted report on 30.9.2008, which was confirmed by the court below by terms of order dated 12.11.2008. Thereafter the present application for amendment was filed which has been rejected by the court below. 4. The learned counsel for the petitioner submitted that the petitioner is the resident of Calcutta. Although the suit was filed for removal of encroachment detailed in Schedule B but during this long pendency of the suit the defendant taking advantage of absence of the petitioner gradually encroached the entire plot Nos. 404, 405 and 431. The pleader Commissioner also found that there is construction over entire area of plot No. 404 and 405 and plot No. 431 is bounded by boundary wall. Because of this subsequent event the plaintiff was compelled to file the amendment application praying therein for removal of all encroachments and sought for deleting Schedule B. The learned counsel further submitted that if amendment is not allowed then there will be difficulty in execution of the decree if ultimately 3 the plaintiff will succeed. By amendment neither the nature of the suit is being changed nor any prejudice will be caused to the defendant. 5. On the other hand, the learned senior counsel Mr. Choubey submitted that the amendment sought for is mala fide and it has been filed with a view to delay the disposal of the suit and moreover the amendment sought for is barred by law of limitation and further basic structure of the suit will be changed and likewise another subject matter of the suit will be substituted in place of the original subject matter i.e. Schedule B of the plaint. 6. It is not disputed here that the suit was filed by the plaintiff petitioner for removal of encroachment over Schedule B property. The amendment application has been filed alleging that during the pendency of the suit the defendant No.1 has made constructions and changed the encroachment portion and also to ascertain the encroachment, the pleader Commissioner was also appointed who has submitted his report and, therefore, in the light of the report of the pleader Commissioner it is necessary to amend the plaint and also the sketch map given in the plaint. 7. From perusal of the impugned order it appears that the learned court below observed that amendment petition has been brought by the plaintiff when the suit was fixed for argument and, therefore, 4 there is inordinate delay on the part of the plaintiff and further that the plaintiff wants to completely change the schedule B of the plaint when the evidences of both the parties have been closed and the complexion and cause of action and also valuation may also be changed if the amendment is allowed. 8. In (2006) 4 SCC 385 Rajesh Kumar Aggarwal and others v. K.K. Modi and others the Apex Court has held that the court should also take notice of subsequent event in order to shorten the litigation and to preserve and safeguard the rights of both the parties and to sub-serve the ends of justice. At paragraph 15 and 16 and 17 the Apex Court held as follows : “15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of 5 determining the real question in controversy between the parties. 17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.” 9. From perusal of the case of the parties and after hearing, it appears that there is no inconsistency with the case originally pleaded. The nature of the suit originally was for removal of encroachment. After amendment also the nature will remain the same. The amendment sought for appears to be because of subsequent encroachment made by the defendant. However, at this stage the merits of the amendment sought for cannot be adjudged. The only test is as to whether the amendment is necessary for the purpose of determining the real question in controversy between the parties. 10. In 2005 (13) SCC 89 Sajjan Kumar v. Ram Kishan the Apex Court has held that the proposed amendment was necessary for purpose to 6 bring to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complication at the stage of execution in the event of the plaintiff appellant succeed in the suit. It appears that in that case before the Apex Court the plaintiff filed amendment application seeking for correction of the description of the suit premises at the final stage of the suit. Here in the present case at our hand also if amendment is refused then the plaintiff will not be able to execute the decree if at all the plaintiff’s suit will be decreed because the description of an encroachment mentioned in schedule B is different then the encroachment with may be found by the pleader commissioner or that has been found by the pleader commissioner. 11. In (2009) 10 SCC 84 Revajeetu Builders and Developers Vs. Narayanaswami and sons and other the Apex Court has held that the courts have very wide discretion in the matter of amendment of pleadings but courts’ powers must be exercised judiciously and with great care. While deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. The first condition which must be satisfied before the amendment can be allowed by the court is whether 7 such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts’ discretion in grant or refusal of the amendment. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. In the said decision at paragraph 63 the Apex Court has enumerated some guidelines which is quoted hereinbolow: “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication o the case; (2) whether the application for amendment is bon fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to 8 multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the claims would be barred by limitation on the date of application.” 12. In view of the above facts and circumstances of the case, in my opinion, the trial court while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and thereby it has occasioned gross failure of justice and, therefore, the impugned order is unsustainable. 13. In the result, this writ application is allowed and the impugned order is set aside and the amendment sought for by the plaintiff petitioner is allowed. The petitioner shall incorporate the amendment within the time framed as provided in C.P.C. from the date of receipt of a copy of this order in the court below. S.S. A.F.R. (Mungeshwar Sahoo, J.)