HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETIHON (227} No. 5094 0f2008 PETETIONERS : 1. Ishwar S/o Kanwal Smgh aoed about 70 vears Caste — Dhun Rfo V1llage Kabhi Tahsd and Distnut Dhamtan (CG) Ghasnm Bax D/o Kanwal Smgh W/o Nohar Smgh, aged about 65 vears R/o V1llage Kash1 'IahSII & Dlstrlct Dhamtan (C G ) VERSUS RESPONDENTS : 1. Ghanaram aged about 70 years S/o Kanwai Smgh Dhun 2. Krishna Kumar aged about 50 years S/o Kanwa] Smgh lDhurI 3. Ramrakhan aged about 40 years WO Kanwai Singh Dhurl 4. Bhauram, aged about 35 years S/o Kanwal Slngh Dilun 5. Ananch Ba: aged about 55 years D/o Kanwal §mgh Dhurr w/o Shrv Kumar 6. Durgr Ba1 aged about 45 veals D/o Kanwal Singh Dhurl All R/o village Kashi, Tahsil & District Dhamtari (C.G.) 7. State of Chhattisgarh, Through Collector, Dhamtari, District Dhamtari (C.G.) " WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA p SB: Hon’ble Shri Satish K. Agnihotri, J. Present: bhn Rakesb Thakur Advocate tor the pet1t1oners Sim Shashank Thalmr Panel Lawyer for the State/respondent \Io 7 ORAL ORDER (Passed on 23$ day of September, 2008) In the present petition, the petitioner irnpugis the legaiity and validity of the order dated 31.03.2008 (Annexure P/l) passed by the First Civil Judge: Class II, Dhamtari in Civil Suit No. 212-A/2006, whereby the application of the petitioner filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short ‘C.P.C) for amendment in the plaint, was rejected. 2. The petitioner/plaintiff filed a suit in the Court of first Civil Judge. Class II, Dhamtari for declaration and permanent injunction against the respondents. In the suit, the petitioner prayed for the following reliefs: E%W§W$W 61W$HWW%:— a. 21E i%$ mama w 1m tm‘zFm—5 aim m—m mm 1i ma iim Eow‘o 143, 153 .3 ' i 233/1. WT 0.05. 316/2 WT (L32. 436/1 WT 0.12, 451/3 m 0.12, 3561 .92, 2501 9.39. 436/4 m 0.07 éa 436/7 me $3! wt) :r’a as a a. §5wwqéum1,($wwmwm) $Ww§uW$m€g%%$ mmmmmarmmm‘km “6?! H. mmmgm/WW Wau‘1'qwi W$Gn€m1§qr$1r Accoding to learned counsel for the petitione, in response to para 1 f r r ] o theittcn statement f11ed by the respondent No 1 and 2 (defendant N. wr . o 1 and 2), that the petitioner has not prayed any consequential relief, thus, e suit was not maintainabie; the petitioner flied an aplication under th p Order VI Rule 17 ofthe C.P.C without stating the facts to the following efe ct: f %W#H§MH€I atarc‘hmnt'dqaiaaSHlermwwijh eemwaam‘mamagmemer ei" EW%W§ ds/swtt mm W Learne civil Judge, after having considered submsions of the arties d is p observed as under: "mahnata‘aautgemgmmmmmeeg ariatrwthmiiatedanlh’k‘d’élnl‘E nmmaamdmtewmatmw awlwa'mteetmel Efrain: Hen are?? wWaaeqatw§gunaM€i€§ mgmww‘s‘lmgadne‘ mmwwaétel-aduew antaret$agl%eanwmwmm lW‘ ? m mem‘ia ammm ww $1ate‘temdmQmaiemehaé 1AW 9/ 0/ W 06 Qa Ewo / 0 / W .1%0W13.03§03WW§ W$H$9£2EWW vi WW asrme éa um $ 3,5. gm) an 1‘06 €0 §, w 9mm E51 Wu$mw§m w$o2 m @ m 2W$W WWW 6 ,46 W W, mm m m%w&m &§m mmg wwWW mv m mwwim$vsi§wmumW$W @I wumw$m§ma3m m m$§w%aw@#mmmanw wWW€waw$Wi§w1¥w mw$w$wmmmm WW§F 5. Shri Rakesh Thakur, iearned counsel appearing for the petitioner submits that the additional relief sought for by way of amendment in the plaint does not change the nature of the suit. Even further court fee is not required to be paid. The suit for declaration could not have been filed Without relief which was sought for by the petitioner in the application. Ihave heard learned counsel for the petitioner, perused the pleadings and documents appended thereto. Order VI Rule 17 ofthe C.P.C provides for amendment ofthe plaint which reads as under: “17. 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 alter the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the patty could not have raised the matter before the commencement oftria .” ’7. The basic requirement is that the amendment is permissible if it is necessary for the purpose of determining-the real question in controversy between the parties. The amendment sought for by the petitioner does not determine the real question between the parties in the pending. suit. This is an alternative prayer which cannot be granted without there being a background of the earlier partition of the land and possession of a panicular share to the petitioner, thereon. The Hon’ble Supreme Court, in the matter of State ofA.P. and Others v. Pioneer Builders, AP.’ has settled the principles governing amendment ofthe pleading which reads as under: “21 .......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 v. Maung Mo Hnaung succinctly summarieses 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 attraction to be substituted for another: nor to change, by means of amendment, the subject-matter ofthe suit.......” Applying the well settled principles of amendment of pleadings to the facts ofthe case wherein the cause of action and the subject matter ofthe suit is sougt to be changed by means of amendment, the order impugied is legal and proper. 10. Without expressing any opinion on the merits of the case, the petition is dismissed in limine. No order asto costs; ll; Consequently, LA. No. l, application for grant of interim relieffstay, also stands disposed of. Sd/- .Satish K. Agnihotri i(2006) 1‘2 SCC li§ Jndge