Bakhtawar Singh v. Bakhtawar Singh

1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 22.9.2014 by which the trial court has dismissed the application for amendment filed by the petitioner/plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) on the ground that if the amendment as prayed for is allowed, it will amount to setting up by the petitioner/plaintiff of a totally new case and which will in fact be contradictory to the stand as set up in the existing pleadings.

2. The subject suit was a suit for declaration, mandatory and permanent injunction filed by the petitioner/plaintiff claiming that respondent/ defendant 2014:DHC:6726 was wrongly representing himself as son of Sh. Sarmukh Singh but the defendant is actually the son of Sh.Hazoor Singh and the petitioner/plaintiff is the real Bakhtawar Singh son of Sh. Sarmukh Singh. The respondent/defendant was pleaded to be in illegal possession of the suit land and consequently necessary reliefs were claimed as per the plaint on the cause of action/ basis that the respondent /defendant had absolutely nothing to do with the suit land inasmuch as the respondent/defendant had illegally occupied the suit land. Appropriate reliefs were claimed as per the plaint for mandatory injunction to restitute status quo aute with respect to the suit land ie of joint possession of the plaintiff ie effectively plaintiffs seeking possession.

3. Trial court in the present case notes that if the amendment is allowed, a case which is in total conflict with the earlier case would be set up because by allowing amendment, the same would amount to setting up a totally new case because in the original plaint respondent/defendant was pleaded to have absolutely no right in the suit land but by the amended plaint it was now sought to be putforth that the respondent/defendant is not an illegal occupant of the suit land but respondent/defendant was inducted as a lessee by the petitioner/plaintiff. Also, the trial court notes that a preliminary issue in the suit was framed way back in 2011 and decision on which is delayed for one reason or the other including the subject application being filed. The suit was stated to be identified as an old suit inasmuch as it was more than 5 years old. The relevant observations of the trial court for dismissing the amendment application are contained in para 15 of the impugned order dated 22.9.2014 and which para reads as under:- “15. Keeping the above discussed legal proposition in mind, if we examine the facts of the case, it would be clear that plaintiff in the present application is seeking amendment of plaint to incorporate the relief of declaration, recovery of lease amount/mesne profits and also the relief of possession subject to the outcome of CM(main)/revision pending before Hon’ble High Court. Evidently, the prayer for amendment to incorporate relief of possession and for damages/mesne profits has already been dismissed vide order dated 02.11.2012 of Ld. Predecessor of this court and thereafter, review application of plaintiff has also been dismissed vide order dated 22.07.2013. These orders have been challenged by way of revision before Hon’ble High Court. Now the same relief alongwith relief of declaration and recovery of lease amount has been sought to be incorporated. Such relief could have been asked even earlier but have not been sought for reasons best known to the plaintiff. Though the counsel for the plaintiff submitted that such amendment are necessary but obvious question arises if that was the situation why such facts and prayer were not sought earlier now even the prayer as sought to be incorporated by way of amendment are barred by law of limitation. Moreover, it would be clear from the averrments of the plaint that it is stated that defendant had grabbed the land of the plaintiff fraudulently whereas in the earlier application for amendment also it was alleged that defendant is in unauthorized and illegal possession of the land but now in the present application for amendment, plaintiff for the first time as come up with the version that plaintiff had given the land to the defendant who happens to be his cousin for cultivating and defendant used to pay lease charges earlier, which he subsequently stopped paying and started claiming himself to be owner. Evidently, versions taken at different stage are different. This court is very much conscious of the fact that court is not required to go into merits and veracity of the facts sought to be incorporated by way of amendment but at the same time it is also required to be examine that whether such the proposed amendment are bonafide and necessary for proper adjudication of the matter. Keeping the yardstick as propounded by Apex Court in judgment of “Ravajeetu Builders and Developers’s case” keeping those legal principles in mind I find that the proposed amendments are only lacking the necessary and specific particulars but are contradictory to the earlier pleadings of the plaintiff and in that sense do not appear to be bonafide. Without commenting as to the legal maintainability of those pleas/prayers sought in the proposed amendments, I find that proposed amendments are in fact not necessary for proper adjudication of the matter.” (underlining added)

4. No doubt courts are liberal in allowing amendments, however it is settled law that amendments which set up a totally new case cannot be permitted. In the present case, in fact besides the aspect that a totally new case is now pleaded through the amendment, the amendment application filed is also malafide because of the reason of a total change in the nature of the case.

5. In view of the above, I do not find any reason to interfere with the impugned order in exercise of the extraordinary and discretionary jurisdiction under Article 227 of the Constitution of India.

6. Dismissed.

DECEMBER 04, 2014 VALMIKI J. MEHTA, J. ib