IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 38 of 2009 Date of Decision : October 5, 2009 Sh. Punjab Singh and others Petitioners Versus Sh. Gajey Singh and another Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioners : Mr. Rajiv Rai, Advocate, for the petitioners. For the respondents : Mr. Karan Singh Kanwar, Advocate, for the respondents. Sanjay Karol, J. (Oral) The plaintiffs have filed the present petition assailing the order dated 12.11.2008 passed by Civil Judge (Senior Division), Court No. 1, Paonta Sahib, District Sirmaur, H.P. in Civil Misc. Application No. 188/6 of 2008, titled as Punjab Singh and others versus Sh. Gajay Singh and another whereby the plaintiffs’ application under Order 6 Rule 17 CPC stands dismissed. The application has been dismissed on the ground that a new plea and prayer is sought to be incorporated which is not only false but factually contradictory. The dismissal of the plaintiffs’ earlier suit by 1 Whether reports of Local Papers may be allowed to see the judgment? 2 the Civil Court has also been considered as a factor while dismissing the application. Plaintiffs filed a civil suit No. 85/1 of 2007, dated 13.8.2007, titled as Sh. Punjab Singh and others versus Sh. Gajay Singh and another, before the Civil Judge (Senior Division), Paonta Sahib, Distt. Sirmarur, H.P. In the plaint it is averred that the plaintiffs are co-owners of the land comprised in Khata Khatauni No. 13/20 Kitas- 9, measuring 0-15-91 Hacts. situated at Mauja Up-Sampda Bata Mandi, Tehsil Paonta Sahib, Distt. Sirmaur, H.P. and that the defendants with a view to take forcible possession of the suit land, on 11.8.2007 started collecting material on the spot with a view to raise construction on the suit land. The plaintiffs prayed for the following prayers: “It is therefore respectfully prayed that a decree of Permanent injunction restraining the defenedants from collecting material and raising construction on the suit land i.e. land comprised in Khata Khatauni No. 13/20 Kitas-9 measuring 0-15-91 Hacts. situated at Mauja Up-Sampda Bata Mandi, Tehsil Paonta Sahib, Distt. Sirmaur, H.P. either through themselves, their servants or family members etc. in any member whatsoever.” The defendants resisted the suit on the ground that they are already in possession of the suit land and have perfected their title by way of adverse possession. The written statement was filed on 1.9.2007. 3 According to the plaintiffs, during the pendency of the suit they were forcibly dispossessed by the defendants from the suit land hence an application under Order 6 Rule 17 C.P.C. incorporating the following amendment in the prayer clause was necessitated: “Since the defendants have encroached upon the part of the suit land over Khasra 788 measuring 0-00-64 Sq. mts and Khasra No. 789 measuring 0-00-78 Sq. mtrs out of khata Khatauni No. 13/20 situated at mauja Bata Mandi Tehsil Paonta Sahib, Distt. Sirmour (HP) in the month of Aug. 2007 and the defendants are trespassers hence the plaintiffs are entitled for recovery of possession on the basis of title through decree of possession.” The amendment was opposed by the defendants on the very same pleas taken by them in the written statement. According to the defendants their houses are in existence on the suit land since long. The old houses were built by their ancestors which have become unfit for human habitation on account of vagaries of rain and bad weather and since they had fallen, in their place ‘pucca’ houses were built. However part of the ‘kacha’ house still in existence having roof of tin and broken walls made of mud and bricks was repaired by the defendants. The trial Court dismissed the plaintiffs’ application by holding as under: “The present case in hand filed by the applicants/plaintiffs on 13.8.2007 and the relief of permanent prohibitory injunction has been prayed for. 4 The amendment application filed after placing on record the written statement and copy of judgment relating to the previous suit. Some photographs were also placed on record by respondents/defendants those revealed that old chappar was fallen down which as per the case of respondents possessed by them and being fallen down, they intended to re-construct but stopped by plaintiffs after taking stay from this court. Once the suit is for permanent prohibitory injunction, changing the said suit for possession by narrating the encroachment during the pendency of the suit, does not give right to plaintiffs/applicants to seek the relief, otherwise it is upon plaintiffs to prove that despite due diligence on his part the said fact was not within his mind. In the present case, the applicants /plaintiffs failed to prove the due diligence on his part being reason in the written statement, the defence raised that respondents/ defendants are in possession of portion of the suit land of khasras No. 788 and 789 measuring 0-00-64 sq. mtrs. and khasra No. 789 measuring 0-00-78 sq. mtrs. and said fact was brought on record on 1.9.2007 when the written statement was filed to which application for amendment filed on 3.5.2008. Application filed alongwith one demarcation report which revealed demarcation conducted on 22.9.2007 and the said demarcation report also contradicted the case of the plaintiff by narrating that encroachment was done upon khasra No. 788 measuring 0-00-64 sq. mtrs. and shape of katcha chappar was found in fallen down state which stated by witness, belonging to Gajay Singh (defendant No. 1) and upon khasra No. 789 measuring 0-00-78 sq. mtrs. a pucca house was found which as per the 5 statement of witnesses belonged to Angoori Devi (defendant No. 2). Comparing the said report with photographs, this court can conclude that the said chapar and pucca house was within the knowledge of the plaintiffs when he filed the suit on 3.5.2008. the photographs further gives conclusion that it is not possible to raise such a huge structure within a short time but it contradicted the case of plaintiffs and it be held that the present application has been filed by suppressing the material facts relating to fallen katcha chappar and pucca houses were already in existence and by hiding such fact, the suit for permanent injunction has been filed. By no stretch of imagination, conclusion can be drawn that applicants acted bonafidly and the said amendment sought upon the true facts after applying the due diligence. Whereas, conclusion can be drawn that if this application is allowed, certainly, the suit which is for permanent prohibitory injunction shall change to suit for possession and further applicants/plaintiffs will raise a new plea which is otherwise not a case of applicants/plaintiffs while falling a civil suit whereas the said fact within his knowledge as it is not possible to raise pucca house and old fallen structure to be ignored at the time of filing the suit.” I have heard the learned counsel for the parties and have perused the record. From the record it is evident that earlier suit No. Civil Suit No. 2/1 of 2004, titled as Sh. Panjab Singh and others versus Smt. Angoori Devi, decided by the Civil Judge (Junior Division), Court No. 1, Paonta Sahib, District Sirmaur, H.P. on 23.5.2005 does not 6 pertain to the suit land. Hence the contention of learned counsel for the respondents that the subject matter of both the suits is same is misconceived. The record reveals that the plaint in question was presented on 13.8.2007 and the written statement was filed on 1.9.2007. The matter was fixed for consideration of issues on 15.11.2007 when it was adjourned for 4.12.2007, 4.1.2008, 20.2.2008 and 5.3.2008 as issues could not be framed. The adjournment was not on the asking of the plaintiffs. It was only on 26.4.2008 that the plaintiff prayed for an adjournment, intending to file an application under Order 6 Rule 17 C.P.C. and on the next date the needful was done. In the suit issues have not yet been framed. The finding of the Court below that the plaintiff has failed to take due diligence in moving the application at the earliest is thus incorrect and not borne out from the record. The plaintiffs are seeking to incorporate the relief of possession of the suit premises. How and in what manner it would change the nature of the suit has not been discussed by the Court below. In fact the amendment would in no manner change the character of the suit as the amendment sought is only to avoid multiplicity of proceedings and determination of all controversies in issue. The Court below has seriously erred in prejudging the issue on merits by concluding that the demarcation report and the 7 photographs contradicted the plaintiffs’ stand. The Court erred in presuming that the construction raised by the defendants could not have been carried out in a short span. The material placed on record by the parties including the photographs were yet to be proved in accordance with law hence the Court below seriously erred in judging the controversy on merits by referring to and relying upon the said material. The Court below erred in holding that the applicants had not acted bonafidely or that they had not taken due diligence. Learned counsel for the petitioners has rightly invited my attention to the ratio of law laid down by the Apex Court in North Eastern Railway Administration, Gorakhpur versus Bhagwan Das (Dead) by LRs, (2008) 8 SCC 511; Rajesh Kumar Aggarwal and others versus K. K. Modi and others, (2006) 4 SCC 385; Usha Devi versus Rijwan Ahamd and others, (2008) 3 SCC 717 and Baldev Singh and others versus Manohar Singh and another, (2006) 6 SCC 498. In the instant case the amendment sought to be brought in is only to curtail multiplicity of proceedings with the object of deciding the entire controversy in issue. The principle for allowing the amendments are now well settled and all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. 8 Amendments should be refused only when the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. The object of Order 6 Rule 17 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. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. In Usha Devi (supra) the Court has held as under: “As to the submission made on behalf of the respondents that the amendment will render the suit non-maintainable because it would not only materially change the suit property but also change the cause of 9 action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the respondent-defendants to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement.” For the aforesaid reasons the impugned order being illegal and contrary to record needs to be set aside. Ordered accordingly. The plaintiffs’ application for amendment is allowed. The amended plaint is already on record and the defendants are directed to file their amended written statement within eight weeks from today. The parties are directed to appear before the trial Court on 9th November, 2009. Records be sent back immediately. (Sanjay Karol), Judge. October 5, 2009 (PK)