Civil Revision No.5199 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Revision No.5199 of 2007 Date of Decision: May 05, 2009 Sunder Lal and another ..... Petitioners Vs. Anjuman Amdad Bahmi Co-operative Society, Khzri ..... Respondent CORAM:- HON'BLE MR. JUSTICE A.N. JINDAL Present:- Mr. R.P.S. Ahluwalia, Advocate for the petitioners. Mr. S.S. Dinarpur, Advocate for the respondent. **** A.N. JINDAL, J. This petition is directed against order dated 30.8.2007 passed by Additional District Judge, Yamuna Nagar at Jagadhari dismissing the application for amendment of the plaint filed by the plaintiffs/ petitioners (herein referred as `the petitioners'). It is second round of litigation and has a cheqered history. The petitioners had filed a suit for declaration 29.10.1992 challenging the sale deed dated 5.4.1957 executed in favour of the defendants and also mutation No.2585 in respect of the land as mentioned in the plaint being illegal, null and void and inoperative and not binding qua the rights of the petitioners. The said suit was dismissed. The appeal preferred against the said judgment was also dismissed by the Court of Additional District Judge, Yamuna Nagar, however, the High Court while condoning the delay in filing the appeal, remitted the case back for decision on merits. Now the said appeal is pending adjudication before Ms. Civil Revision No.5199 of 2007 -2- Navita Singh, Additional District Judge. During the pendency of the said appeal, the petitioners have filed an application for amendment of the plaint on the following two grounds:- 1. Firstly, the petitioners want to make correction in the date of sale deed which has been wrongly mentioned as 5.9.1957 in stead of 5.4.1997 in the suit; 2. Secondly, the liberty may be allowed to add the alternative plea to the effect that “in case Court comes to the conclusion that the registered document dated 5.4.1957 executed in favour of the plaintiffs is not treated as sale deed then it may be treated as a mortgage deed and the plaintiffs were ready to get the mortgage redeemed on payment of the requisite amount.” This application was contested by the respondent. Ultimately, it has been dismissed. As regards, first amendment, the date of a document is a question of fact which the defendant/ respondent does not dispute, Court could correct it by itself. As regards the second amendment, he argued that this amendment at the appellate stage cannot be permitted as it would be futile to allow the amendment at such belated stage that too by the appellate Court. The document sought to be challenged is dated 5.4.1957 regarding which the suit was filed on 29.10.1992. The suit remained pending before the trial Court for nine years and ultimately, it was decided on 17.1.2001 and the appeal against which was also dismissed. Thereafter, the matter also remained pending in the High Court but during that period, also the petitioners fully knew and were aware of the nature of said document. The document also reveals that the plaintiffs had transferred the Civil Revision No.5199 of 2007 -3- possession of the suit land on the date of execution of the same. Meaning thereby, it does not amount to usufructuary mortgage. Thus, if this document is taken as a mortgage deed even then the plaintiffs have lost their right to get the land redeemed after about 52 years of the execution of the document. The petitioners knew fully well and being aware of their rights cannot be allowed to take such inconsistent/ alternative plea at this stage. The respondents continued contesting one plea for 17 years and they have failed to establish the said plea and now want to raise another plea by requesting the Court to read the document as a mortgage deed in the alternative, but such plea, in the given circumstances of the case, may prima facie not succeed, then dragging of the parties in the unnecessary litigation would amount to nothing but misuse of the process. It has been observed in case B.K. Narayana Pillai vs. Parmeshwaran Pillair and Anr. 2000 (1) RCR (Civil) 511 that nevertheless, one distinct cause of action cannot be substituted for another nor the subject matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya vs. Maung Mo Hnaung, AIR 1922 Privy Council 249 succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings: “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by Civil Revision No.5199 of 2007 -4- means of amendment, the subject-matter of the suit.” The expression “cause of action” in the present context does not mean “every fact which it is material to be proved to entitle the plaintiff to succeed” as was said in Cooke vs. Gill, 1873 (8) CP 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson vs. Unicos Property Corporation Ltd. 1962 (2) All ER 24, and it seem to me to be the only possible view to take. Any other view would make the rule futile. The words “new case” have been understood to mean “new set of ideas” : Dorman v. J.W. Ellis and Co. Ltd. 1962 (1) All ER 303. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. The amendment of the pleadings is generally permissible when those are necessary for determination of the real controversy in the suit and power to amend the suit may be appropriately exercised in the interest of justice but the exercise of such power is governed by judicial consideration and should be exercised with great care and caution. The provision has been incorporated to do justice but at the same time liberal approach should not result in injustice and prejudice to the other side as well. Few of the principles which emerge from the decisions given by the Apex Court from time to time are that amendment would generally not be disallowed except on the following grounds :- 1. Where time barred claim is sought to be introduced, that too would be one of the factors for consideration; Civil Revision No.5199 of 2007 -5- 2. where it changes the nature of suit itself or is malafide; 3. The other party cannot be placed in the same position had the plaint been originally filed correctly i.e. to say the other side has lost right of a defence by subsequent amendment. 4. There is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. 5. The amendment should not cause prejudice to the other side which cannot be compensated by way of costs. 6. The parties should not be allowed to introduce by amendment an inconsistent or contrary plea to negate the facts originally admitted though a party may be allowed inconsistent plea on admitted facts by way of amendment.” In the instant case, the petitioner had earlier set his claim while treating document dated 5.4.1957 as sale deed, now while doubting that he Civil Revision No.5199 of 2007 -6- may not succeed to establish the said plea has sought to raise alternative plea after treating the document as a mortgage deed and thereby wants to substitute a distinct cause of action in place of earlier cause of action by way of the proposed amendment. By doing so, the whole trial will be reopened. Nevertheless the plaintiffs may not propose to lead any evidence yet the opportunity would have to be given to the respondents to defend the plea and then to rebut the same by leading evidence, as such at this appellate stage, it will be a travesty of justice to allow such an amendment rather it would be an injustice to respondent. Hence, finding no merit in the petition, the same is dismissed. May 05, 2009 ( A.N. JINDAL ) renu/deepak JUDGE