SAMPATH KUMAR versus AYYAKANNU AND ANR.

Leave granted. The plaintiff-appellant filed a suit for issuance of permanent injunction alleging the plaintiff-appellant's possession over the suit property which is an agricultural land. The defendant in his written statement denied the plaint averments and pleaded that on the date of the institution of the suit he was in possession of the suit property and therefore the suit for injunction was liable to be dismissed. The suit was instituted in the year 1988.

pp. 398–399, margin G

In the year 1999, but before the commencement of the trial, the plaintiff moved an application under Order VI Rule 17 CPC seeking an amendment in the plaint. It is alleged in the application that in January 1989, that is, during the pendency of the suit, the defendant has forcibly dispossessed the plaintiff. On such averment the plaintiff sought for relief of declaration of title to the suit property and consequential relief of the delivery of possession. The suit was proposed to be valued accordingly along with payment of court fee. The prayer for amendment was opposed on behalf of the defendant· respondent submitting that the plaintiff was changing the cause of action through amendment which was not permissible and also on the ground that the defendant has perfected his title also by adverse possession over the suit property rendering the suit for recovery of possession barred by time and therefore a valuable right had accrued to the defendant which was sought to be taken away by the proposed amendment.

p. 399, margin B

The Trial Court rejected the application for amendment. During the course of its order the Court observed that the appropriate course for the plaintiff was to bring a new suit. This order has been maintained by the High Court in revision. Although the plaintiff had sought for some more amendment so as to correct the description of the suit property; however the part of the prayer for amendment was not later pressed by the plaintiff before the Court.

p. 399, margin D

The short question arising for decision is whether it is permissible to conve11 through amendment a suit merely for permanent prohibitory injunction into a suit for declaration of title and recovery of possession.

p. 399, margin F

It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possessio1{di'the property since b,efore the institution of the suit itself. . ·. .:.:::':.f;;:~;

p. 399, margin F

In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is souglit to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was one to the plaintiff to file a fresh suit .and that is one of tile reasons which has prevailed with the Trial Court littd With the High Court in refusing the prayer for amendment and also in dismissing the plaintiffs revision. We fail to understand, if 1t is permissible for the plaintiff to file an independent suit, why the same relief.which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.

pp. 399–400, margin G

In Mst. Rukhmabai v. Lala Laxminarayan and Ors., AIR (1960) 335, this Court has taken the view that whe're a suit was filed without seeking an appropriate relief, it is a well settled rule of practke not to dismiss the suit automatically but to allow the plaintiff to make ttecessaty amendment if he seeks to do so.

p. 400, margin B

Order 6 Rule 17 of the 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 permitkd 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 proce.eded. 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 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 strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.

p. 400, margin C

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 observation in Siddalingamma and sec 561.

pp. 400–401, margin F

In the present case the amendment after the date of the institution of the suit. instituting a new suit seeking relief of possession on the same basic facts as of issuance of pennanent prohibitory order to avoid multiplicity of suits it would to permit the relief of declaration of title sought for in the pending suit. The plaintiff for the reliefs now sought to be added pendency of the suit. The merits of the by way of amendment are not to be judged for amendment. However, the defendant already perfected his title by way of accrued should not be allowed to be and seeking a new relief which would thereby depriving the defendant of the time, by excluding a period of about prescriptive title claimed to have been of the defendant can be protected by declaration of title and recovery of possession, the prayer in that regard shall be deemed which the application for amendment

p. 401, margin A

On the averments made in the application., allowed. If the facts alleged by plaintiff defendant to take such plea in the written in substantiating the factual averments substantiating the plea which he would pleading by way of consequential amendment be dismissed. The defendant is not prejudiced, was sought for commencement of the

p. 401, margin E

For the foregoing reasons, the appeal of the High Court and the Trial Court to incorporate the pleas sought to be original plaint foregoing the plea to the Trial Court, However, in view of the A amendment, it !~ directed that the plaintiff shall pay a cost of Rs. 2,000 (Rupees Two Thousand only) as a condition precedent to incorporating the amendment in the plaint. The prayer for declaration of title and recovery of possession shall be deemed to have been made on the date on which the

pp. 401–402, margin G

application for amendment was filed. B R.P. Appeal allowed.

p. 402