- Bookmark
- Share
- CaseIQ
Suit Batni And Others v. Shri Tej Singh .
Structured Summary of the Opinion
Factual and Procedural Background
The respondent instituted a suit against the petitioners seeking a mandatory injunction. The plaint alleged that the property in suit belonged to the Union of India, that the respondent purchased it at an auction sale, and that the petitioners were licensees whose license determined on 23-3-1964 but who had not vacated the property. The respondent sought an injunction directing the petitioners to remove goods, luggage and persons and restraining them from interfering with the respondent's possession.
The petitioners contested the suit, denying that the property belonged to the Union of India or that they were licensees and alleging instead that they were tenants under a lease from the real owner, Hakumat Khan. They also raised preliminary objections, including that the respondent, being admittedly out of possession, could not maintain a suit for injunction without suing for possession.
The written statement was filed on 13-7-1964. On 1-8-1964 the respondent applied to amend the relief clause of the plaint to add an alternative prayer: if the plaintiff failed to prove the defendants were licensees, then a decree of possession be passed in favor of the plaintiff and against the defendants. The application asserted the amendment was necessary to determine the real questions in controversy and to avoid multiplicity of litigation.
The petitioners opposed the amendment as not bona fide, as introducing an inconsistent and different cause of action, and as impermissible because the plaint did not disclose any cause of action on which the added relief could be granted. The learned Senior Subordinate Judge allowed the amendment. The petitioners filed the present revision petition challenging that order.
Legal Issues Presented
- Whether the amendment to the relief clause — adding an alternative prayer for possession — was permissible or whether it substituted a distinct cause of action or changed the subject-matter of the suit.
- Whether the amendment could be allowed consistent with the principle that amendments should not work injustice to the other side and must be necessary to determine the real questions in controversy between the parties.
- Whether allowing the amendment unjustly deprived the petitioners of their preliminary objection that a suit for injunction was not maintainable (i.e., whether the amendment effectively defeated a defence that would have led to dismissal).
- Whether the application to amend was bona fide or mala fide in the face of earlier notice indicating the petitioners were trespassers and not licensees.
- Procedural (raised later by respondent): whether acceptance of costs by the petitioners in respect of the amendment precluded them from challenging the order allowing amendment in revision.
Arguments of the Parties
Petitioners' Arguments
- The amendment was not bona fide and was an afterthought intended to introduce a different and inconsistent cause of action.
- The amendment would introduce a totally different case and change the subject-matter of the suit, which should not be permitted.
- Allowing the amendment would cause injustice because it deprived the petitioners of their plea that a suit for mere injunction was not maintainable (they argued the respondent should have sued for possession first).
- The respondent knew, before filing suit, that the petitioners were trespassers (as evidenced by a notice dated 12-12-1963), so the amendment was mala fide; the respondent should have sued for possession in the first instance.
- The petitioners relied upon Sukh Ram v. Narainoo (AIR 1952 Him Pra and Bilaspur 38) and Ludhomal Purtomal and Co. v. Secy. of State (AIR 1918 Sind 6) to support their objection to the amendment.
Respondent's Arguments
- The amendment was necessary to determine the real questions in controversy and to avoid multiplicity of litigation, and it was moved at the earliest stage (shortly after the written statement was filed).
- The amendment did not substitute a distinct cause of action or change the subject-matter of the suit but sought relief in the alternative (possession if licensee status not established).
- The application for amendment was bona fide; any earlier mistake in framing the suit (seeking injunction rather than possession) could be corrected by amendment and courts should decide rights rather than punish parties for mistakes in conduct of their cases.
- The amendment would not work injustice to the petitioners because it was sought early, the subject-matter remained the same, and costs were awarded in favour of the petitioners.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249 | Amendments should be liberally allowed to secure justice, but cannot be used to substitute one distinct cause of action for another or to change the subject-matter of the suit. | The court invoked this principle to frame the general boundary for amendments and concluded the present amendment did not substitute a distinct cause of action nor change the subject-matter. |
| Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 | Amendments should be allowed if they (a) do not work injustice to the other side and (b) are necessary to determine the real questions in controversy; amendments should be refused where they cause irreparable injury that cannot be compensated by costs (e.g., a fresh claim barred by limitation). | The court applied this two-condition test and held the amendment satisfied these conditions (early application, necessary to determine controversy, no irreparable injustice). |
| Sukh Ram v. Narainoo, AIR 1952 Him Pra and Bilaspur 38 | Cited by petitioners as authority against allowing certain amendments in pleadings (case-specific facts invoked). | The court examined and distinguished the facts of that case (where amendment sought was not permissible under Order 8 R.5 CPC) and held it was not applicable to the present facts. |
| Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 | Permits a party to make inconsistent sets of allegations and claim relief in the alternative. | The court relied on this authority to support the proposition that a party may plead inconsistent alternatives, so adding an alternative prayer for possession was not impermissible per se. |
| Mukh Ram v. Har Kesh, AIR 1928 Lah 112 | Authority where amendment for possession was allowed in a suit instituted for injunction. | Used as persuasive support that amendments adding possession relief in an injunction suit can be allowed to avoid multiplicity of suits. |
| Maruti v. Ranganath, AIR 1955 Hyd 1 (FB) | Authority where amendment for possession was allowed in a suit for injunction (supporting the practice of allowing such amendments). | Cited alongside Mukh Ram to demonstrate existing practice of allowing possession prayers to be added in injunction suits. |
| Charan Das v. Amir Khan, AIR 1921 PC 50 | Shows that amendments have been allowed even where they had the effect of depriving the opposite party of certain pleas (example context). | The court cited this to counter the argument that amendment must be refused merely because it defeats a preliminary plea (e.g., that the suit was not maintainable). |
| L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., (citations in text: AIR 1967 SC 357 and AIR 1957 SC 383) | Cited in the context of authorities permitting amendment even though the result may be to defeat a defendant's plea (support for liberal approach to amendment). | Mentioned as further support for the proposition that an amendment may be allowed even if it thwarts a defence (the court relied on this line of authority conceptually). |
| Ludhomal Purtomal & Co. v. Secretary of State, AIR 1918 Sind 6 | An authority where an application for amendment was refused because it was made late and was not necessary to determine the real question in controversy. | The court distinguished that case on its facts, noting the present amendment was sought at the earliest stage and was necessary, so Ludhomal was not applicable. |
| Order 8, Rule 5, Civil Procedure Code (as referenced) | Rule that, in certain circumstances, allegations in the plaint are to be deemed admitted if not denied in the written statement (invoked in discussion of Sukh Ram facts). | The court noted that Sukh Ram was decided in the context of Order 8, R.5 CPC consequences and distinguished those facts from the present case. |
Court's Reasoning and Analysis
The court proceeded by applying settled principles governing amendments. It first recalled the rule from Ma Shwe Mya that while amendment powers are to be liberally exercised to secure justice, they do not permit substitution of an entirely distinct cause of action or a change in the subject-matter of the suit.
The court then applied the two-condition test from Pirgonda Hongonda Patil: an amendment should be permitted if (a) it does not work injustice to the other side and (b) it is necessary to determine the real questions in controversy. The court examined the nature of the amendment: it introduced an alternative prayer for possession only if the respondent failed to establish that the petitioners were licensees. The court found that this did not substitute a different cause of action or alter the subject-matter of the suit; rather, it provided an alternative relief related to the same controversy.
Addressing the contention that the amendment introduced inconsistent allegations, the court relied on Firm Sriniwas Ram Kumar to note that a party may plead inconsistent sets of allegations and claim relief in the alternative; thus inconsistency alone did not bar the amendment.
The court examined the petitioners' reliance on Sukh Ram v. Narainoo and distinguished it: Sukh Ram turned on specific facts and the effect of Order 8, R.5 CPC in that context, which did not correspond to the facts at hand.
On the claim that the amendment caused injustice by defeating the petitioners' preliminary objection (that a suit for mere injunction was not maintainable), the court observed that it is not an absolute rule that amendments cannot be allowed when they deprive the opposite party of a potentially successful plea. The court cited authorities where amendments were permitted even though they affected a defendant's plea and concluded that in the present case the amendment was made at the earliest stage, did not change the subject-matter, and the petitioners were awarded costs — all factors indicating absence of irreparable injustice.
Regarding the mala fides contention (the respondent allegedly knew before filing suit that the petitioners were trespassers), the court held that assuming such knowledge, it would amount to a mistake in initial pleading, and correcting that mistake by amendment did not constitute mala fide conduct. The court reiterated the principle that courts seek to decide rights rather than punish honest mistakes in case conduct, and distinguished Ludhomal Purtomal where the amendment was late and unnecessary.
Having applied the governing principles and authorities, the court concluded that the learned Senior Subordinate Judge was justified in allowing the amendment and that the revision petition challenging that order therefore failed on merits.
The court also recorded that a separate preliminary objection raised by the respondent — that acceptance of costs by the petitioners precluded the revision — was not decided because the revision failed on merits.
Holding and Implications
Holding: The court held that the learned Senior Subordinate Judge was justified in allowing the respondent's application to amend the plaint, and accordingly the revision petition challenging that order was dismissed. The revision-petition is dismissed.
Implications:
- Direct effect on the parties: The amendment to the plaint stands; the respondent may pursue the alternative prayer for possession if he fails to prove the petitioners are licensees. The petitioners' challenge to the order allowing amendment fails and the petition is dismissed. The court ordered that parties are to bear their own costs (the lower court had awarded costs to the petitioners in relation to the amendment, but the final sentence of the opinion leaves parties to bear their own costs).
- Precedential effect: The decision applies established principles on amendment of pleadings and distinguishes authorities urged against amendment on their facts. The opinion does not purport to lay down a new principle of law; it applies existing tests (e.g., no substitution of a distinct cause of action; amendments must not work injustice and must be necessary). No new precedent is announced beyond the application of these settled principles to the facts of this case.
End of summary — prepared strictly from the content of the provided opinion.
1. This revision-petition is directed against an order of the learned Senior Subordinate Judge, Mandi, allowing an application of the respondent, for amending the plaint. The respondent had instituted a suit, against the petitioners, for the issue of a mandatory injunction the allegations, in the suit, were that the property, in suit belonged to the Union of India, that the respondent had purchased the property at an auction sale, that the petitioners were the licensees of the property and that the license of the petitioners determined on 23-3-1964 but they had not vacated the property. The respondent prayed for the issue of a mandatory injunction directing the petitioners to remove their goods, luggage and persons from the property and restraining them from interfering with the possession of the respondent.
2. The petitioners contested the suit, on various grounds. It is not necessary, for the decision of the revision petition, to set out all those grounds. Suffice it to say that the petitioners denied that the property belonged to the Union of India or that they were mere licensees. The petitioners pleaded that they were in possession of the property as tenants on the basis of a lease granted by the real owner of the property, Hakumat Khan. The petitioners had, also, taken up preliminary objections, against the maintainability of the suit. One of the preliminary objections was that the respondent being, admittedly, out of possession, was not entitled to maintain a suit for injunction, without suing for possession.
3. The written statement was filed, in the suit, on 13-7-1964. On 1-8-1964, an application, for amending the plaint, was put in, on behalf of the respondent the amendment was sought in the relief clause. The amendment sought was “even in alternative, if the plaintiff falls to prove that the defendants are licensees, then as the defendants are in possession of the suit property without any right, title or interest, then a decree of possession be passed in favour of the plaintiff and against the defendants with costs.” It was alleged, in the application, that the aforesaid amendment was necessary for the purpose of determining the real questions in controversy between the parties and would avoid multiplicity of litigation.
4. The application for amendment was opposed, on behalf of the petitioners. It was pleaded that the application was not made bona fide, that the amendment would introduce an inconsistent and totally different cause of action and that the amendment in the relief clause could not be allowed as the plaint did not disclose any cause of action upon the basis of which the relief sought could be granted.
5. The learned Senior Subordinate Judge allowed the application for amendment.
6. The petitioners have come up in revision against the order allowing amendment. The principles, with respect to the amendment of pleadings, are well settled. It was observed by their Lordships of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249 that:
“All rules of Courts are nothing but provisions intended to secure the proper, administration of justice, and it is therefore I 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 none the less no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject matter of the suit.”
7. Again, it was laid down in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil (S) AIR 1957 SC 363 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 lie 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. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim the ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?”
8. The learned counsel for the petitioners contended that the amendment allowed by the learned Senior Subordinate Judge, had introduced a case, which was totally different from, and inconsistent with, the case set up in the plaint and that it should not, therefore have been allowed the learned counsel placed reliance on Sukh Ram v. Narainoo, AIR 1952 Him Pra and Bilaspur 38. The contention of the learned counsel is not sound the suit of the respondent was based on the allegation that he had purchased the property, at an auction sale and that the petitioners were licensees. The amendment, sought, was to the effect that even if the petitioners were held not to be licensees, they were trespassers and the respondent was entitled to get possession as against them. The amendment did not substitute one cause of action for another distinct cause of action. It did not change the subject-matter of the suit or introduce a totally different case. It is true that the prayer for possession was not consistent with the allegation that the respondent was in possession of the property in suit. But the prayer for possession was made in the alternative there is nothing in law to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative, vide Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177. In a suit for perpetual injunction, an amendment for including a prayer for possession should, generally speaking, be allowed unless the amendment would cause injustice to the opposite party. Such an amendment avoids multiplicity of suits. Amendment for possession was allowed in suits, instituted for the issue of an injunction, in Mukh Ram v. Har Kesh, AIR 1928 Lah 112 and Maruti v. Ranganath, (S) AIR 1955 Hyd 1 (FB). The authority AIR 1952 Him Pra and Bilaspur 38, relied upon by the learned counsel for the petitioners, is not at all applicable to the facts of the present case the facts, in that authority, were that the plaintiffs' father had created occupancy rights in favour of ten persons. Thereupon, the plaintiffs filed a suit for a declaration that the alienation would not be binding on them after the death of their father because the property alienated was ancestral property and the alienation was made without consideration or legal necessity. The trial Court had decreed the suit. Thereupon, the alienee-defendants filed an appeal in the Court of the District Judge. On the date of hearing of arguments, in the appeal, an application was presented, on behalf of the alienee-defendants, for amendment of their written statement, by being allowed to plead that the property in suit was not ancestral qua the plaintiffs but was rather the self-acquired property of their father. The application was contested by the plaintiffs. The District Judge allowed the amendment. The plaintiffs came up in revision to this Court. The revision-petition was allowed and the order of the District Judge was set aside. It was observed by this Court that in view of the provisions of Order 8, R. 5 of the CPC, the alienee-defendants should be deemed to have admitted the allegation, in the plaint, about the ancestral nature of the property and that having been unsuccessful, on the pleas raised, they wanted to try their luck on an additional plea by way merely as an afterthought and that the amendment should not have been allowed. The facts in the present case are entirely different. The decision in AIR 1952 Him Pra and Bilaspur 38 cannot have any application to the present case.
9. It was, nest, contended by the learned counsel for the petitioners, that the amendment allowed had caused injustice to the petitioners inasmuch as they had been deprived of their right to get the suit dismissed on the plea that a suit for mere injunction was not maintainable. It is not a universal rule that an amendment cannot be allowed because its effect would be to deprive the opposite party of a plea which would have resulted in the dismissal of the suit. There are decisions, in which amendment, was allowed, though its effect was to deprive the opposite party of his right to plead limitation. Reference in this connection, may be made to Charan Das v. Amir Khan, AIR 1921 PC 50. L.J Leach and Co. Ltd. v. Jardine Skinner and Co., (S) AIR 1967 SC 357 and (S) AIR 1957 SC 383 supra. The learned Senior Subordinate Judge had the power to allow the amendment of the plaint even though the result of the amendment was to defeat the plea raised by the petitioners that the suit was not maintainable. The application for amendment was made by the respondent at the earliest. The nature or the subject-matter of the suit was not changed. The petitioners were awarded costs. In the circumstances, the amendment could not be said to have worked injustice to the petitioners.
10. Lastly, it was contended by the learned counsel for the petitioners, that the application for amendment could not be considered to have been made bona fide as the respondent was aware, before the filing of the suit, that the petitioners were in possession as trespassers and that he should have sued for possession, in the first instance. In this connection, the learned counsel referred to the notice dated the 12th December, 1963, issued on behalf of the respondent, by Shri Vishwa Nath, Advocate. It was stated, in this notice, that the petitioners were in possession of the property, in suit, as trespassers. Assuming for the sake of argument that the respondent knew that the petitioners were in possession of the property, in suit, as trespassers and not as licensees, this fact alone would not make the application for amendment as having been made mala fide. The failure of the respondent to institute a suit for possession in the first instance was only a mistake and he was entitled to get that mistake corrected by seeking an amendment. As has been rightly pointed out by the learned Senior Subordinate Judge, the object of Courts is to decide the rights of the parties and not to punish them for mislakes they make in the conduct of their cases. The case Ludhomal Purtomal and Co. v. Secy. of State, AIR 1918 Sind 6, relied upon by the learned counsel for the petitioners, is distinguishable. It was held, in that case, that the application for amendment had been made at a late stage and that the amendment sought was not necessary for the purpose of determining the real question in controversy between the parties. In the present case, the amendment was sought at the earliest and was necessary for the purpose of determining the controversy between the parties.
11. The conclusion from the above discussion is that the learned Senior Subordinate Judge was justified in allowing the application of the respondent for amendment. The revision-petition must fail.
12. Before concluding, it may be pointed out that the learned counsel for the respondent had raised a preliminary objection against the maintainability of the revision-petition. The objection was that as the petitioners had accepted costs of the amendment, they were precluded from disputing the correctness of the order, allowing amendment. The reply of the learned counsel for the petitioners, to the preliminary objection, was that the costs were accepted under protest and that the petitioners were, therefore, not barred from challenging the correctness of the order. As the revision-petition fails on merits it is unnecessary to record a finding on the preliminary objection, taken up by the learned counsel for the respondent.
13. The revision-petition is dismissed. However, parties are left to bear their own costs.
II/K.S.B
14. Revision dismissed.
Alert