Civil Revision No.2168 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2168 of 1994 Date ofdecision: 5th September, 2009 Amarnath and others ......Petitioners Versus Parkash Chand and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. P.N.Aggarwal, Advocate for the petitioners. Mr. Surinder Garg, Advocate for the respondent no. 4. RAJIVE BHALLA, J. Prayer in this revision petition is to set aside an order dated 23.04.1994, passed by the Senior Sub Judge, Faridkot, dismissing the petitioners application for amendment of the plaint. The petitioners filed a suit for permanent injunction to restrain the respondents, including respondent no. 4, from raising any construction over the suit property that comprises an old mandir and two samadhs etc. It was alleged that Smt. Sukh Devi, was the owner of land measuring 4 kanals and 4 marlas. After her demise, her property devolved upon her grand children. Prakash Chand and Kalu Civil Revision No.2168 of 1994 2 Ram who are also her heirs, have allowed an organization, known as Shri Mahadev Kanwar Sangh, Pawan Dham Gaushala Road, Jaitu (respondent no.4) to intermeddle with the suit property. In response to the suit, respondent no. 4, apart from claiming ownership, on the basis of a gift deed allegedly executed by Sheela Devi etc., also claimed ownership by way of adverse possession. Faced with these pleas, the petitioners filed an application for amendment of the plaint so as to incorporate an alternative prayer for possession. The trial court dismissed the application, by holding:- that the application is belated, it would alter the basic nature of the suit, the suit had not been correctly valued for the purposes of court fee and as parties are co-sharers, the petitioners cannot claim possession. Counsel for the petitioner submits that as respondent no. 4, who is a stranger to the joint ownership and possession of the parties, has asserted ownership by way of a gift deed and also by adverse possession, the petitioners had no option but to pray for amendment of the plaint by raising an alternative prayer for grant of a decree of possession. It is submitted that as the plaintiffs do not propose to lead any evidence on the proposed amendment, and as the relief of possession is a natural out come of the claim of ownership by adverse possession put forth by respondent no. 4, the trial court should have allowed the amendment. It is further argued that respondent no. 4 is not a co-sharer and even if it is held to be so the petitioners being co-sharers are entitled to claim joint possession. Counsel for respondent no. 4, however, submits that the amendment, would alter the nature of the suit from a suit for grant of an injunction to a suit for possession. It is submitted that as the Civil Revision No.2168 of 1994 3 cause of action to pray for possession arose before the filing of the suit, the amendment was rightly declined. I have heard counsel for the parties and perused the impugned order. The endeavour of every adjudicatory process is to do justice. If in its quest for justice, a court arrives at a conclusion that a particular amendment is necessary, then procedural impediments apart, such an amendment must be allowed. Order 6 Rule 17 of the CPC, empowers a Court to allow amendments, as are necessary for determining the real question in controversy. The broad principles that govern the exercise of this power are: (a) it may be allowed at any stage of the proceedings. (b) where the application appears to be belated, the applicant shall have to satisfy the court that the delay is bona fide. (c) The amendment prayed for must be necessary for the purpose of determining the real questions in controversy. (d) The amendment must not alter the basic nature of a suit, though this would not apply to prayers for alternative reliefs. (e) a court shall not examine the merits of the plea or record any opinion thereon. (f) amendments should be allowed, where the refusal may otherwise lead to multiplicity of proceedings. (g) The power to accept or reject the prayer Civil Revision No.2168 of 1994 4 for amendment is discretionary. (h) the discretion so vested has to be exercised judicially. (i) Courts should adopt a pragmatic approach, particularly, where it appears that the amendment prayed for would advance the cause of justice and would facilitate a court in its endeavour to do justice. A perusal of the impugned order discloses that the trial court did not address the issue in hand correctly. The fact that the suit as originally filed, is for grant of injunction, would not necessarily bar the petitioners from claiming an alternative relief of possession. The petitioners prayer for possession was necessitated by the plea of ownership by adverse possession, raised by respondent no. 4. By asserting its ownership by adverse possession respondent no. 4, in essence admits the ownership or co-ownership of the petitioners. To deny the prayer for possession or joint possession to a co-sharer, would in my considered opinion, be a traversity of justice as rejection of their prayer for amendment would only lead to further litigation. It is a settled position in law that delay alone is insufficient to reject a prayer for amendment, which is otherwise, bonafide. The fact that the petitioners are co-sharers does not disentitle them to seek a declaration for joint possession as respondent no. 4, claims ouster of their title. I am therefore, satisfied that the trial court committed an error of jurisdiction while dismissing the application for amendment. In view of what has been stated hereinabove, the revision petition is allowed, the order dated 23.04.1994, passed by the Senior Sub Judge, Faridkot, is set aside and the application for amendment is Civil Revision No.2168 of 1994 5 allowed subject to payment of Rs.10,000/- as costs. Parties are directed to appear before the Senior Sub Judge, Faridkot, on 5.10.2009. [RAJIVE BHALLA] JUDGE 5th September, 2009 SKaushik