IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 22 of 2009 Manu Maharani Hotels Ltd. ..……… Defendant/Revisionist Versus Thakur Dan Singh Bist Trust & another ……… Plaintiffs/Respondents. Hon’ble Tarun Agarwala, J. Heard Shri Deepak Dhingra, the learned counsel duly assisted by Shri Siddhartha Sah, the learned counsel for the revisionist and Shri Tribhuwan Phartiyal, the learned counsel duly assisted by Shri Anirudh Katoch, the learned counsel for the respondents. The defendant/applicant has filed the present revision u/S 115 of the Code of Civil Procedure questioning the veracity and legality of the order dated 18th August, 2009 passed by the trial court allowing the application of the plaintiffs under Order 6 Rule 17 of the C.P.C. seeking certain amendments in the plaint. The brief facts leading to the filing of the filing of the present revision is, that the plaintiffs filed a suit for mandatory injunction on 6th November, 2007 seeking a relief of possession of the property in question from the opposite party. The opposite party entered appearance and filed an application dated 07/12/2007 under Order 7 Rule 11 of the C.P.C. for the rejection of the plaint on various grounds, viz., that the suit was barred by the limitation that the court fee paid was insufficient and that no cause of action had arisen for filing the suit. The application of the defendant was rejected by the trial court by an order dated 10th April, 2008. The defendant preferred a revision before the High 2 Court which was allowed by an order dated 31st October, 2008. The Court remitted the matter back to the trial court to re-decide the application under Order 7 Rule 11 of the C.P.C. in the light of the observation made by the Court. Against this order, the plaintiffs preferred a Special Leave Petition which was entertained and the order of the High Court was stayed in the meanwhile. It has come on record that the said SLP is still pending consideration before the Supreme Court. Notwithstanding the aforesaid, the plaintiffs moved an application dated 18th April, 2009 under Order 6 Rule 17 of the C.P.C. for amendment of the plaint. This application was withdrawn and a fresh amendment application dated 4th May, 2009 was preferred seeking an amendment in the plaint. The amendment sought has been indicated in paragraph 5 of the application which is quoted hereunder:- “A) That the words “and again on 12-12-2008” be added in para 14 after the words “finally on 10-9-07” and before the words “when the notice”. B) That the words “and for damages respectively” be added in para 14 after the words “vacate/termination of license” and before the words “was sent”. C) That the words “and U.P.C. respectively” be added in para 14 after the words “registered A.D” and before the words “to the defendant”. D) That the letter “s” be added in para 14 after the word “notice” and before the words “by 17-9-07”. E) That the words “and 18-12-08 respective” be added in para 14 after the word “by 17-9-07” and before the words “when the plaintiff”. F) That the words “It is pertinent to mention here that since the relief sought for damages is yet to be ascertained by this Hon’ble Court, the court fees for the 3 same will be paid at the time of execution” be added at the end of para 16 after the word “claimed”. G) That the following paragraph 14 (a) be allowed to be added after paragraph 14 and before paragraph 15. “14 (a)That the defendant company have not bothered to heed to the notice dated 10-9-2007 nor to the notice dated 12-12-2008 and hence is liable to at least Rs. twenty lacs per month (Rs.20,000.00/month) for the portion of the grassmere Estate Trust premises used as Manu Maharani Hotel along with the appurtenant land in it’s possession as damages for unauthorized due of the aforesaid premises from the date of notice of termination of license till the handing over of the vacant possession of the aforesaid “PREMISES” to the plaintiff Trust”. H) That the following paragraph 17 (a) (1) be allowed to be added to the relief’s- “17 (a) (1) That defendant be directed to pay damages for the unauthorized use of the Grassmare Estate Trust premises used as Manu Maharani Hotel alongwith the appurtenant land in his possession from the date of termination of license till the date of handing over of the vacant possession of the aforesaid premises to the Plaintiff Trust through its Chairman.” after para 17 (a) and before para 17 (b).” In paragraph 4 of the application, the plaintiffs contended that the plea for damages was inadvertently left out in the plaint and, therefore, prayed that the plea of damages be incorporated in the plaint in the interest of justice. This application was opposed by the defendant contending that no permission was sought by the plaintiffs from the Court as contemplated under Order 2 Rule 2 of the C.P.C. and that the amendment sought was belated having been filed after more than 2-1/2 years since the institution of the suit. Further, the amendment sought was vague and further no damages had been quantified in the relief clause. The defendant, therefore, contended that the application for amendment was liable to be rejected with cost. 4 The trial court, after considering the matter, allowed the application and directed the plaintiffs to amend the plaint on payment of cost of Rs. 200/-. The defendant, being aggrieved by the aforesaid decision, has filed the present revision. The learned counsel for the defendant/applicant contended that the relief for damages was an independent cause of action for which a separate suit, if any, could be instituted by the plaintiffs and, therefore, there was no cause for the plaintiffs to move an application for amendment in the present suit. The learned counsel submitted that there had been a considerable delay in moving the application for amendment and, such amendment, being belated by more than 2-1/2 years, should not be allowed at this stage of the suit. The learned counsel further submitted that no leave of the Court, as contemplated under Order 2 Rule 2 of the C.P.C., was taken by the plaintiffs and, consequently, the amendment application could not have been allowed. In support of his contention, the learned counsel placed reliance upon a decision of the Supreme Court in the case of Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Sarugi and Ors, AIR 2007 SC 1478, wherein it was held that the amendment application which introduces a time barred claim could not be allowed. The learned counsel also placed reliance upon a decision of the Supreme Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, (2009) 10 SCC 84, wherein the Court held that the amendment application should not be allowed where it drags on the proceedings amounting to a misuse of the process of the Court. The learned counsel further placed reliance upon a decision of the Supreme Court in the case of Shiv Kumar Sharma Vs. Santosh Kumari, (2007) 8 SCC 600 and New Bank of India 5 thru. Punjab National Bank Vs. Inder Saran Mehra and others, 2008 I AD (DELHI) 573, wherein the court considered the provision of Order 2 Rule 2 of the C.P.C. and Order 2 Rule 4 of the C.P.C. as to when the leave of the Court could be taken. On the other hand, the learned counsel for the plaintiffs contended that a fresh suit for payment of damages was not barred and, in order to avoid multiplicity of litigation, an amendment was sought in the plaint since the plea of damages was accruing on the same cause of action for which no leave of the court was required under Order 2 Rule 2 of the C.P.C. The learned counsel submitted that the amendment sought does not change the nature of the suit, and that the nature of relief remained the same and that a liberal approach was required to be adopted which the lower court had taken. The learned counsel submitted that no prejudice was being caused to the defendant and that the compensation has been awarded which was just and proper. Having heard the learned counsel for the parties, it would be appropriate if the provision of Order 6 Rule 17 of the C.P.C. is extracted hereunder:- “Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” The general principles as culled out from the various decisions of the Supreme Court is, that an amendment can be allowed at any stage of the proceedings, in such manner, and on 6 such terms as may be just in order to determine the real question in controversy between the parties. The principle object of this rule is to decide the rights of the parties and not to punish them for the mistake they make in the conduct of their cases. No doubt, Order 6 Rule 17 of the C.P.C. has been mis-used by the parties which has entailed dragging the proceedings indefinitely. Delay is one of the factors where amendment could be refused in a given case by the Court but it does not mean that the court would not allow the amendment application merely because there had been a substantial delay. The Court has to decide the delay on the facts and matters in every given case. In the present case, the defendant alleges a delay of 2-1/2 years in moving the amendment application from the date of the institution of the suit. The plaintiffs, on the other hand, contend that if a fresh suit was filed, the same would have been within the period of limitation which fact has not been controverted by the defendant. The Supreme Court in a catena of decisions have held that there should be avoidance of multiplicity of proceedings. Since the plea of damages raised flows from the same cause of action, this Court is of the opinion, that the amendment in relation to the plea of damages was rightly allowed and the plea was allowed to be incorporated in the plaint. There was no delay in moving the application, especially when no written statement has been filed by the defendant till date. Further, the relief of damages could also be claimed in the instant suit instead of delegating the plaintiff in filing another suit. Amendments generally should be allowed unless it is shown that permitting such amendment would be unjust and would result in prejudice against the opposite party which could not be compensated in terms of cost or would deprive the opposite party 7 of a right which had accrued to him with the lapse of time. In the present case, the Court does not find that any prejudice has been caused to the defendant which could not be compensated in terms of cost nor any valuable right had accrued on account of lapse of time. Consequently, the trial court rightly exercised its power in allowing the amendment application by imposition of cost in favour of defendant. In North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by Lrs., (2008) 8 SCC 511, the Supreme Court held as under:- “Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. which still holds the field, it was held that 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. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166)” In Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, AIR 2006 SC 1647, the Supreme held as under:- “As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good 8 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. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. ” In Sampath Kumar Vs. Ayyakannu and another, AIR 2002 SC 3369, the Supreme Court held as under :- “9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. (See 9 observations in Siddalingamma v. Mamtha Shenoy, (2001) 8 SCC 561)” In the light of the aforesaid, the cardinal test and the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. The Court should also find out that the amendment sought would satisfy as to whether any injustice would be caused to the other side and that the amendment sought was necessary to determine the real controversy between the parties. If the amendment sought does not cause prejudice or injury, the same should be allowed and if any injury is being caused, the court is required to see as to whether the said injury could not be compensated in terms of cost. In the light of the aforesaid, this Court finds that the plea of damages is culled out from the same cause of action, namely, the relief of possession which the plaintiffs had initially prayed. Consequently, in order to avoid multiplicity of suit and in the absence of any prejudice being caused to the defendant and, in view of the fact that the amendment sought does not change the nature of the suit, the trial court rightly adopted a liberal approach and allowed the amendment so that the controversy involved between the parties could be decided together. In so far as the plea of leave not being taken under Order 2 Rule 2 of the C.P.C. is concerned, it is true that in terms of Order 2 Rule 2 of the C.P.C. all the reliefs which could be claimed in the suit should be prayed for. Order 2 Rule 3 provides for joinder of causes of action but there is an exception which is provided under Order 2 Rule 4 of the C.P.C. For joining causes of action in respect of maters covered by Clauses (a), (b) and (c) of Order 2 Rule 4, no leave of the Court is required to be taken. For facility, 10 the provision of Order 2, Rule 2, 3 and 4 of the C.P.C. are extracted hereunder:- “2. Suit to include the whole claim.- ( 1 ) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. --Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.- -A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. 3. Joinder of causes of action.- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they arc jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit. 4. Only certain claims to be joined for recovery of immovable property.- No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except-- (a) claims for mesne profits or arrear of rent in respect of the property claimed or any part thereof; (b) claims for damages for breach of any contract under which the property or any part thereof is held ; and (c) claims in which the relief sought is based on the same cause of action : 11 Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property." From a perusal of the aforesaid, no leave of the court is required under Order 2 Rule 4 of the C.P.C. to include the claim of damages. This view of mine is supported by a decision of the Supreme Court in the case of Shiv Kumar Sharma Vs. Santosh Kumari, (2007) 8 SCC 600, wherein the Court has held as under:- “16. In terms of Order II, Rule 2 of the Code, all the reliefs which could be claimed in the suit should be prayed for. Order II, Rule 3 provides for joinder of causes of action. Order II, Rule 4 is an exception thereto. For joining causes of action in respect of matters covered by Clauses (a), (b) and (c) of Order II, Rule 4, no leave of the court is required to be taken. Even without taking leave of the court, a prayer in that behalf can be made. A suit for recovery of possession on declaration of one's title and/ or injunction and a suit for mesne profit or damages may involve different cause of action. For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order II, Rule 4 of the Code, however, such causes of action can be joined and therefor no leave of the court is required to be taken. If no leave has been taken, a separate suit may or may not be maintainable but even a suit wherefor a prayer for grant of damages by way of mesne profit or otherwise is claimed, must be instituted within the prescribed period of limitation. Damages cannot be granted without payment of court fee. In a case where damages are required to be calculated, a fixed court fee is to be paid but on the quantum determined by the court and the balance court fee is to be paid when a final decree is to be prepared.” In view of the aforesaid, this Court does not find any error in the order passed by the trial court allowing the amendment application. The present revision, consequently, fails and is dismissed. In the circumstances, there shall be no order as to cost. Dated 05.05.2010 Shiv (Tarun Agarwala, J.)