Amendment in the Plaint is Brought only When it Changes the Nature and Characteristic of Suit: High court of Shimla

 Hig h C o urt of H.P on 03 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 2120 Decided on: March 31 2021 _____________________________________________________________ Ritesh Sharma .. Petitioner Versus Pardeep Kumar Samantaroy and another ….Respondents _____________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1 yes. _____________________________________________________________ For the petitioner : Mr. Vivek Singh Attri Advocate. For the respondents : Mr. Aman Sood Advocate. _____________________________________________________________ Sandeep Sharma Judge:(oral) Instant petition filed under Art. 227 of the Constitution of India is directed against order dated 18.12.2019 passed by learned Civil Judge Dalhousie District Chamba whereby an application having been filed by respondent plaintiffunder Order VI rule 17 CPC praying therein for amendment of plaint came to be allowed. 2. For having a bird’s eye view of the matter certain undisputed facts emerge from the pleadings available on record are that plaintiff filed suit for permanent prohibitory and mandatory injunction restraining respondents defendantsfrom interfering in any manner in the suit land comprised Khata Khatauni No.268 375 Khasra No. 1 Whether the reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 03 04 HCHP 2 Kita 26 measuring 1 42 30 hectares situate at Mauja Bakrota Tehsil Dalhousie Chamba Himachal Pradesh2635). 9. Similarly Hon’ble Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal “63. On critically analyzing both the English and Indian cases some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: whether the amendment sought is imperative for proper and effective adjudication of the case whether the application for amendment is bona fide or mala fide the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. refusing amendment would in fact lead to injustice or lead to multiple litigation. Hig h C o urt of H.P on 03 04 HCHP 6whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case and as a general rule the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 10. It is quite apparent from the aforesaid exposition of law that court while considering application under Order VI rule 17 CPC for amendment of plaint is required to see whether proposed amendment if denied would in fact lead to injustice or lead to multiplicity of litigation. Similarly it is also required to be seen by the court while considering application under Order VI rule 17 CPC that whether application for amendment is bona fide or mala fide and amendment if allowed would fundamentally change the nature and character of the suit. 11. This Court in Rajeev Kumar Singhal vs. Mukul Garh and others 2019Him. L.R.899 has held that courts should be extremely liberal in granting prayer for amendment unless irreparable loss is caused to the other side. 12. In the case at hand it is not in dispute that the application seeking amendment of plaint came to be filed Hig h C o urt of H.P on 03 04 HCHP 7 immediately after filing of written statement by the defendants wherein defendants specifically took objection with regard to authorization and capacity of the plaintiff to file the suit. As has been observed above court while exercising power under Order VI rule 17 CPC can proceed to allow amendments which are necessary for deciding the controversy inter se parties 13. In the case at hand plaintiff filed suit for permanent prohibitory and mandatory injunction qua Khata Khatauni No. 268 375 Khasra Nos. Kita 26 measuring 01 42 30 Hectare situate at Mauza Bakrota Tehsil Dalhousie District Chamba Himachal Pradesh. By way of amendment plaintiff seeks to amend description of the suit property and also wants to clarify his capacity to file the suit. Since the plaintiff has specifically filed suit qua Khasra numbers as detailed herein above amendment as sought for if allowed would in no manner amount to changing the nature of suit. Perusal of original plaint itself suggests that plaintiff has filed suit for permanent prohibitory injunction restraining the defendants from interfering in the suit property which stands entered in the record of rights in the name of Church of England Khyber House which contains St. John Church and the shops and the houses adjoining it. If the amendment to the name and description of the suit property is allowed suit property remains same in Khata Hig h C o urt of H.P on 03 04 HCHP 8 Khatauni No. 268 375. Plaintiff has claimed in the application that the description of property has been inadvertently mentioned as St. John Church and the shops and the houses adjoining to it. Since the defendants resisted the plaint on the ground that the suit has been filed by an incompetent and unauthorized person claiming himself to be the Chairman Church of English Jnana Mission Property plaintiff with a view to clarify aforesaid aspect of the matter sought permission to amend the plaint. As per plaintiff is he is Bishop Diocese of Amritsar Chairman of Church of England Janana Mission Property at Khyber House Upper Bakrota Tehsil Dalhousie District Chamba. Though in the case at hand suit stands filed in the name of Bishop Diocese of Amritsar Chairman of Church of England Janana Mission Property at Khyber House whereas it ought to be Chairman of Amritsar Diocesan Trust Association which owns and possesses Church of England Jnana Mission Property. By way of amendmentplaintiff wants to clarify his capacity to institute the suit and the amendment if permitted in no manner would change the nature of the suit. Plaintiff has averred in application that he was unable to mention the photographs which he wants to place on record to show his ownership of the suit property. Since plaintiff has filed suit for permanent prohibitory and mandatory injunction photographs Hig h C o urt of H.P on 03 04 HCHP 9 intended to be placed on record may be necessary to demonstrate possession of the plaintiff over the suit property. In the case at hand plaintiff by way of amendment wants to amend description of suit property and his authorization to file the suit. Since Khasra Numbers of the suit property would remain the same despite there being amendment allowed qua description of the suit property and authorization of plaintiff no serious prejudice can be said to be caused to the defendants in case amendment is allowed. 14. In the case at hand amendment has been sought before settlement of issues and nature of amendment if permitted is not such that it would change the nature and characteristic of the suit rather amendment if allowed would enable learned court below to decide the controversy inter se parties in a most effective manner. 15. Having perused the amendment proposed by the plaintiff in its entirety this court is in full agreement with learned court below that proposed amendment if allowed would not cause any prejudice to the defendants and in no manner change complexion of the suit.. 16. Consequently in view of the detailed discussion supra the impugned order is upheld as a result whereof present petition is dismissed. Hig h C o urt of H.P on 03 04 HCHP 10 Pending applications if any are disposed of. Interim direction if any is vacated. Judge March 31 2021

Summary: The amendment in plaint is to be sought before settlement of issues, that it would change the nature and characteristic of the suit. This honorable judgement was passed by High Court of Shimla in the case of Ritesh Sharma Versus Pardeep Kumar Samantaroy and another [CMPMO No. 213 of 2020] by Hon’ble Mr. Justice Sandeep Sharma The petition was filed under Art. 227 of the Constitution of India, was directed against order whereby an application had been filed by respondent-plaintiff under Order VI rule 17 CPC, therein for amendment of plaint came to be allowed. For having a bird’s eye view of the matter, certain undisputed facts emerge from the pleadings available on record were that plaintiff filed suit for permanent prohibitory and mandatory injunction restraining defendants from interfering in any manner in the suit land comprised Khata Khatauni, Khasra No. Kita 26, measuring 1-42-30 hectares situate at Mauja Bakrota, Tehsil Dalhousie, Chamba, Himachal Prades. Defendants claimed in the written statement that the subject “Khyber House” was different property from St. John Church and the shops and the houses adjoining to it. By way of amendment, plaintiff also prayed to clarify his capacity to file the suit as Bishop of Diocese of Amritsar and to correct the title of suit, from Chairman of Church of England, Jnana Mission Property to Bishop of Diocese of Amritsar, Chairman Church of England, Jnana Mission, which owns and possesses Church of England, Jnana Mission Property. Plaintiff claimed that the amendments sought by way of application are necessary for proper adjudication of the case. The learned council referred the case of Gurbhaksh Singh and othersr vs. Buta Singh and another, 2018 AIR (SC) 2635, Chakreshwari Construction Private Limited vs. Manohar Lal, (2017)5 SCC 212 and Rajeev Kumar Singhal vs. Mukul Garh and others, 2019. The court opinioned that, “By way of amendment plaintiff wants to clarify his capacity to institute the suit and the amendment, if permitted, in no manner would change the nature of the suit. Plaintiff has averred in application that he was unable to mention the photographs, which he wants to place on record to show his ownership of the suit property. Since Khasra Numbers of the suit property would remain the same, despite there being amendment allowed qua description of the suit property and authorization of plaintiff, no serious prejudice can be said to be caused to the defendants, in case amendment is allowed.”