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Attorney(S)
  • Sunder Lal
  • J.N.Bhan
  • J.L.Choudhary
Judges
  • Hon'ble Sh. Justice Janki Nath Wazir
  • Hon'ble Sh. Justice Janki Nath Bhat
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Citation Codes
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citation codes
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Attorney(S)
  • Sunder Lal
  • J.N.Bhan
  • J.L.Choudhary
Judges
  • Hon'ble Sh. Justice Janki Nath Wazir
  • Hon'ble Sh. Justice Janki Nath Bhat
Acts
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Smart Summary

Judgment Summary — Fazl Ali, J. (with concurrence of Wazir, C.J.)

Factual and Procedural Background

Two suits were instituted by the plaintiff, Shrimati Shakuntala Devi, seeking possession of properties on the basis of a right of preemption founded upon contiguity. One suit was against Sobaydar Fatah Ali and others; the other against Mst. Gulab Bibi and others. The suits were filed on 11-8-1958. On 22-4-1963 the plaintiff applied to amend the plaint to assert preemption on the basis of a right of easement (in addition to the earlier contiguity-based plea).

The defendants objected (among other things) that the right of contiguity was ultra vires Article 19 of the Constitution. The trial court, after hearing the parties, allowed the plaintiff's application for amendment. The defendants challenged that order by way of revision to the High Court.

Legal Issues Presented

  1. Whether the application for amendment of the plaint (to add a plea of easement) should have been allowed under Order 6 Rule 17 CPC, having regard to the principles governing amendments.
  2. Whether the plaintiff's application for amendment was bona fide, given that she had earlier based her claim on contiguity and did not include the easement plea when the plaint was originally filed.
  3. Whether the omission to plead the easement earlier was reasonably explained (i.e., could it be attributed to oversight), and whether that explanation sufficed.
  4. Whether the proposed plea was barred by limitation at the time of the amendment application and, if so, whether allowing the amendment would unfairly deprive the defendants of a valid defence.
  5. Whether the change in the law (decisions declaring contiguity-based preemption to be void as repugnant to Article 19(1)(f)) constituted special circumstances justifying the amendment.

Arguments of the Parties

Defendants' Arguments

  • The plaintiff's application to amend was not bona fide.
  • The plaintiff had already based her claim on right of way (contiguity) and provided no reasonable explanation for not pleading the additional right of easement at the time the plaint was filed.
  • The amendment application did not state that contiguity had been declared ultra vires Article 19; instead it alleged an oversight — this was inadequate.
  • The plea the plaintiff sought to introduce was barred by limitation as on the date of the amendment application, and allowing it would deprive the defendants of a valid defence.

Plaintiff's Position (as reflected in the opinion)

  • The amendment was filed promptly after a Division Bench decision of the High Court (published in the Kashmir Law Journal) and after relevant Supreme Court authority, which had changed the legal position regarding contiguity-based preemption.
  • The omission to include the easement plea in the original plaint was an oversight; filing the amendment soon after publication of the decision showed bona fides and that the amendment was intended to strengthen the plaintiff's case in light of the change in law.
  • The circumstances (change in law and timing of the amendment) constituted special circumstances justifying allowance of the amendment even if limitation would otherwise operate at the date of the application.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Charan Das v. Amir Khan, AIR 1921 PC 50 Authority that courts have power to allow amendments even where such amendment might take away a defendant's right accrued by lapse of time, though such power should be sparingly used; special circumstances can justify allowance. The Court relied on this passage to show that amendment may be permitted despite lapse of limitation where special circumstances outweigh prejudice to the defendant.
Mohummed Zahoor Ali Khan v. Mussumut Thakooranee Rutta Koer, 11 Moo Ind App 467 (PC) Example of a case where considerations favour amendment despite lapse of time (cited in Charan Das). Referred to by the Privy Council (in Charan Das) as an example; the present Court accepted that such examples demonstrate exceptions to the general rule.
Pirgonda Hongonda v. Kalgonda Shidgonda, AIR 1957 SC 363 Supreme Court endorsement that the main test for allowing amendment is whether serious injustice would be caused to the other side; courts may allow amendments where a plea becomes barred at the time of application but was available at suit institution, if special circumstances exist. The Court invoked this decision as authoritative support for permitting amendments where the balance of justice favours the applicant and no serious injustice would be caused to the opponent.
Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644 View (of Batchelor, J.) that courts can allow amendment under certain circumstances; this view was endorsed by the Supreme Court. Used to show judicial support for permitting amendments in appropriate cases; the Court noted the endorsement by the Supreme Court of this approach.
State of J. and K. v. Babu Ghulam Qadir, First Appeal No. 94 of 1962 (Division Bench, 28-12-1962) Observation that allowing an amendment that would deprive a party of a limitation defence must be considered from the point of view whether allowing it would work injustice; defective drafting may justify amendment even if right becomes barred later. The Court quoted these observations to support the proposition that an amendment may be allowed where it merely removes an undue advantage gained through defective pleading and does not deprive the opponent of a real accrued right.
Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476 Held that the law of preemption based on vicinage (contiguity) insofar as it deals with urban immovable and house property was void as repugnant to Article 19(1)(f) of the Constitution. The Court relied on this Supreme Court decision to show that the contiguity-based right had been declared void, creating the special circumstance justifying the plaintiff's amendment.
Tara Chand v. Durga Das, 1963 Kash LJ 1 (AIR 1963 J. and K. 27) Division Bench decision of the High Court declaring that the right of prior purchase on the basis of contiguity was void (interpreting the Supreme Court decision). The Court observed that this Division Bench judgment (published in the Kashmir Law Journal) was a proximate cause for the plaintiff's amendment and constituted the special circumstances justifying it.
Galodhu v. Nanak Chand, AIR 1955 J. and K. 25 (Full Bench) Earlier full-bench holding that the contiguity-based right was not repugnant to Article 19(1)(f). The Court noted that this full-bench decision had been superseded by later Supreme Court and Division Bench rulings, and thus was no longer good law for the present purposes.

Court's Reasoning and Analysis

The Court began with the applicable procedural provision and principle: Order 6 Rule 17 CPC confers a discretion on the trial court to allow amendments, but that discretion must be exercised according to well-established principles. The underlying constraint is that an amendment should not be allowed if it causes serious injustice to the other side or alters the very nature of the suit.

The Court analysed the present amendment request in light of those constraints:

  • The proposed amendment did not alter the nature of the suit — it remained a suit for preemption; the amendment substituted or added a basis (easement) for the preemption claim rather than converting the suit into a different kind of action.
  • The central practical question was whether the plea sought to be introduced was barred by limitation and, if so, whether that bar alone justified refusal of the amendment.
  • The Court surveyed authorities (including Privy Council, Supreme Court and High Court decisions) establishing that courts may allow amendments even where a defendant's limitation defence might be adversely affected, provided special circumstances exist and the defendant will not be seriously prejudiced. The governing test is whether serious injustice to the other side would result.
  • The Court found that there were special circumstances in this case: earlier law recognised contiguity-based preemption (see the Full Bench decision in Galodhu), but subsequent Supreme Court authority (Bhau Ram) and a Division Bench decision of this High Court (Tara Chand v. Durga Das) declared the contiguity-based right void as repugnant to Article 19(1)(f). The plaintiff filed the amendment application promptly after the Division Bench decision was published in the Kashmir Law Journal.
  • Because the change in law occurred after the suit was instituted, and because the amendment was sought soon after the relevant judicial pronouncements, the Court concluded that the omission to plead easement earlier could be regarded as an oversight rather than mala fides, and the timing and context constituted special circumstances justifying the amendment.
  • The Court rejected the argument that preemption being a 'weak right' justified stricter standards for amendment in preemption suits. It held that procedural rules of the Code apply uniformly; to disallow amendment merely because the suit relates to preemption would create different procedural regimes for different types of suits, which the Court would not countenance.
  • Finally, because the trial court had exercised its discretion in allowing the amendment, the revisional court would not disturb that exercise unless there was an error of jurisdiction. No such error was found.

Holding and Implications

Core Ruling: APPLICATIONS DISMISSED; RULE DISCHARGED.

Consequences for the parties:

  • The revision applications brought by the defendants against the trial court's order allowing the amendment were dismissed.
  • The trial court's allowance of the plaintiff's amendment (to plead a right of easement in support of preemption) stands.
  • There will be no order as to costs.

Broader implications:

The Court applied established principles governing amendments under Order 6 Rule 17 CPC and confirmed that a change in law occurring after institution of proceedings — especially where an amendment is promptly sought after publication of the relevant decision — can constitute special circumstances justifying an amendment even if the plea would be barred by limitation at the time of the application. The opinion does not purport to lay down novel law beyond applying and reaffirming these existing principles.

Show full summary ...

    Mst. Gulab Bibi v. Shakuntala Devi

    Fazl Ali, J.:— These two applications involve common points of law and I propose to deal with them by one common judgment.

    2. Two suits were filed by the plaintiff Shrimati Shakuntala Devi one against Sobaydar Fatah Ali and ors. and the other against Mst. Gulab Bibi and others for Possession of the properties in suit on the ground that the plaintiff had a right of preemption based on contiguity. The suits were filed on 11-8-1958 and on 22-4-1963 the plaintiffs filed an application for amending the plaint so as to preempt the property on the basis of a right of casement.

    3. The defendants had also made a prayer praying for taking an additional objection that the right of contiguity was ultra vires of Article 19 of the Constitution of India. The court, after hearing both the parties allowed the amendment sought for by the plaintiff find the defendants respectively. It is against this order that the defendants have come up in revision before this Court.

    4. The main grounds taken by the defendants in this case are:—

    i) That the application of the plaintiff was not bona fide.

    ii) That since the plaintiff had already based her claim on the right of way, no reasonable explanation has been given for not including the additional right of easement claimed when it could have been taken at the time When the plaint was filed.

    iii) That there is no mention in the application that the amendment was sought for because the right of contiguity has been declared to be ultra vires of Article 19 of the Constitution of India, but the ground taken is that the plea was left out due to over-sight.

    iv). That the plea now sought to be taken is barred by limitation on the date when the application for amendment was filed and if the plea is allowed the defendants Would be deprived of a valid defence to the action filed by the plaintiff.

    5. We have heard the arguments of the learned counsel for the parties at length. Order 6 R. 17 of the CPC does not in any way fetter the discretion of a Court in granting an amendment in order, however, to exercise its discretion the court is to be guided by certain well established principles. The underlying principle being that no amendment should be allowed where it works serious injustice to the other side or where the amendment seeks to alter the very nature of the suit. In the instant case, it is manifest that if the amendment is allowed, the nature of the suit will not be altered because the suit will still be a suit for preemption based on a right of easement. The only question to be considered is as to whether or not the plea sought to be taken is barred by the law of Limitation. In Charan Das v. Amir Khan, AIR 1921 PC 50, their Lordships of the Privy Council observed as follows:—

    “It may be noticed that in the claim the relief sought is so awkwardly set out that it would be quite open to the interpretation that they had in fact claimed preemption and not a declaration of the right, were it not or the fact that the plaintiffs themselves appear for foolish reasons stoutly to have maintained that was not their object. That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases (see for example Mohummed Zahoor Ali Khan v. Mussumut Thakooranee Rutta Koer, 11 Moo Ind App 467 (PC)), where such considerations are out-weighed by the special circumstances of the case and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one.”

    6. Those observations of their Lordships of the Privy Council were endorsed by a recent decision of the Supreme Court reported in Pirgonda Hongonda v. Kalgonda Shidgonda, (S) AIR 1957 SC 363 at p. 365. In that case, their Lordships pointed out that the main test to prevail with the Court should always be the question as to whether or not serious injustice is caused to the other side. Where a plea which is open to the plaintiff has not been taken due to his default or foolishness and becomes barred at the time when the application for amendment is made though not at the time when the suit was instituted, but later on the Court may allow the plaintiff to amend the pleadings in order to incorporate such a plea. This was also the view taken by Batchelor, J. in Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644 which has been endorsed by the Supreme Court in the above noted Case. A Division Bench of this High Court had an occasion to go into this matter in first appeal No. 94 of 1962, State of J. and K. v. Babu Ghulam Qadir, decided on 28th December, 1962, (J. and K.) where the following observations were made:

    “Thus the question as to whether an amendment should be allowed so as to deprive a party of a right to plead limitation would have to be considered from the point of view as to whether allowing of the amendment would work injustice to the other side. Here also a sharp and nice distinction should normally be made. There may be cases where due to faulty or defective drafting of a plaint a relief has not been claimed in the plaint and at a subsequent stage, the plaintiff seeks to add the relief or to amend the plaint. It may be that at the time when the prayer for amendment is made, the plaintiffs right for that particular relief is barred by limitations though not at the time of the suit in these circumstances, the Court may very well allow the amendment because this will not deprive the defendant of a real right that has accrued to him but it would merely take away an undue advantage which the other side has gained by a defective drafting of the plaint.”

    7. In view of this, the position that emerges is as follows:— As a general rule, the court would allow amendment where a plea is barred by time at the time when the application for amendment is made, where the circumstances of a particular case outweigh the mischief which may be caused to the defendant by allowing such a plea, provided that if the plea were taken in the original pleadings, it is not barred. In the instant case, it seems to us that the sheet anchor of the plaintiff's case was the right of preemption based on contiguity, as contained in clause sixthly of Section 15 of the Right of Prior Purchase Act. The Supreme Court, in its decision reported in Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476, laid down in the clearest possible terms that the law of preemption based on vicinage in so far as it deals with urban-immoveable property and house property was void being, repugnant to Article 19(1)(f) of the Constitution of India, This decision came to be considered by a decision of this court in Tara Chand v. Durga Das, 1963 Kash LJ 1 : (AIR 1963 J. and K. 27), where their Lordships of the Division Bench declared that the right of prior purchase on the basis of contiguity was void. The Judgment of the Division Bench of this court Interpreting the decision of the Supreme Court stated above, was given on 15-1-1963 and was published in January and February issues of the Kashmir Law Journal. In view of this judgment, it appears F that the plaintiff filed the present application for amendment to add an additional plea of easement. Thus there can be no doubt that there were special circumstances I, which justified the plaintiff to amend her plaint. Before the judgment of this court as also that of the Supreme Court the right of contiguity was a valid statutory right. A full bench of this Court in its decision reported in Galodhu v. Nanak Chand, AIR 1955 J. and K. 25 had held that this right was not repugnant to Article 19(1)(f) of the Constitution of India. In view of the Supreme Court judgment as interpreted by a Division Bench of this court, it follows that the full bench decision was no longer good law. In these circumstances, therefore, it cannot be sail that there was no justification for the plaintiff to have coma forward with a prayer to amend the plaint. Having, regard to these special circumstances, therefore, even if the plea was barred by limitation at the time when the I application for amendment was made, the court could I have allowed the amendment.

    8. As regards the contention that the application was mala fide inasmuch as the plaintiff having already pleaded one right did not plead the additional ground of easement which, she seeks by virtue of the amendment, in our opinion, this by itself does not indicate that the application for amendment was mala fide. It is always open to a party to take a number of pleas in the plaint and if by an over-sight any plea is left out and the plaintiff seeks to introduce that plea, the conduct of the plaintiff cannot be characterised as being anything but bona fide. It is true that in the application for amendment there is no reference by the plaintiff regarding the change in position of law with respect to the right of J contiguity but the very fact that the amendment application Page: 84was filed soon after the Division Bench decision of this Court was published in the Kashmir Law Journal shows that the basic idea behind the amendment was to streng-than the plea of easement as the main plea of contiguity could not be pressed in to action. For these reasons, therefore, this contention is over-ruled.

    9. Lastly, it was contended that since preemption is a weak right which could have been defeated by legal device or by the vendee improving his position before the decree was passed, the court should have refused the application for amendment which allowed the plaintiff to strengthen this right by adding an additional plea of easement. The argument is, no doubt, attractive but on a Closer scrutiny, it does not appear to be tenable. Even though preemption may be a weak right, it will be difficult to lay down too different standards for allowing amendment in cases arising out of Prior Purchase Act and other cases. After all the Code of Civil Procedure governing the procedure of all suits is as much applicable to a suit based on preemption as to any other suit. To disallow amendment in a preemption suit would be to lay down two different kinds of procedure for various types of cases. In these circumstances, therefore, we are unable to agree with this contention. Moreover, we find that the trial Court has exercised its discretion in allowing the amendment. Where the trial Court has exercised its discretion one way or the other, the revisional Court will not interfere even if it were to exercise a discretion in a different way because no error of jurisdiction is involved.

    10. For these reasons, the applications are dismissed and the rule is discharged. In the circumstances of the case, there will be no order as to costs.

    11. Wazir, C.J:— I agree.

    G/CWM/D.V.C

    12. Applications dismissed.

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    Comments

    Mst. Gulab Bibi v. Shakuntala Devi
    (Sep 10, 1963)