high court himachal

Amendment to plaint will be allowed in a liberal manner unless they cause any prejudice to the defendants or change the complexion of the suit: High Court of Himachal Pradesh

Over time, it has been observed that courts should be extremely liberal in granting prayer for amendment of the plaint and written statement unless the irreparable loss is caused to the other side. Amendments necessary for deciding controversy will be allowed at any stage of the suit especially if by way of amendment capacity to institute the suit is being clarified and the amendment in no manner would change the nature of the suit. This auspicious judgment was passed by the High Court of Himachal Pradesh in the matter of RITESH SHARMA V. PARDEEP KUMAR SAMANTAROY AND ANOTHER & ANR. [CIVIL MISCELLANEOUS PETITION (u/Article 227) No. 213 of 2020] by Honourable DR. Justice Sandeep Sharma.

This instant petition is filed under Art. 227 and is directed against an order dated 18.12.2019 passed by learned Civil Judge, Dalhousie, District Chamba whereby an application under Order VI Rule 17 CPC, for amendment of the plaint was allowed.

Certain undisputed facts emerge from the pleadings available on record as the plaintiff filed suit for permanent prohibitory and mandatory injunction restraining respondents from interfering in any manner in the suit land. However, later after the respondents argued about the ownership of the suit land and the land next to it and also raised objections with regard to the competence of the plaintiff to institute the suit and details of the suit property. 

Later, the plaintiff filed an application under Order VI Rule 17 CPC for amending his plaint since, despite due diligence, he inadvertently mentioned the name of the church as “Saint John Church” whereas, its real name was “Sadhu Sunder Singh Chapel”. Besides this, the submitted words “and the shops” as mentioned in the description of suit property were also required to be deleted by him. Additionally, he sought to attach photographs, he failed to attach previously, as material on record to demonstrate his ownership and possession. Also, by way of this amendment, he sought to clarify his capacity to file the suit since he prayed that amendments sought by way of application are necessary for proper adjudication of the case.

Defendants opposed this amendment since it would amount to changing the nature of the suit and thereby also introducing a new plaintiff however the Learned Civil Judge allowed these amendments and hence, the defendants are praying to quash the order allowing the amendment.

The Court after hearing learned counsel for the parties and perusing the material available on record observed that, “this court finds no illegality or infirmity in the impugned order, as such, no interference is called for.” Since, as per the Gurbhaksh Singh & Ors vs. Buta Singh & Anr  2018 AIR (SC) 2635 it is, “well settled that power to allow an amendment is wide and can be exercised at any stage of proceedings in the interest of justice, provided that party seeking amendment is able to show that pleading sought to be incorporated by way of the amendment could not be pleaded at first instance at the time of filing suit/written statement, despite due diligence.”

Additionally, the court relied on the principles laid down by the SC in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017)5 SCC 212 and stated that “while considering an application under Order VI, Rule 17 CPC for amendment of the plaint is required to see whether the 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 an application under Order VI, Rule 17 CPC, that whether an application for amendment is bona fide or mala fide and amendment, if allowed, would fundamentally change the nature and character of the suit.”

Also, in this case, the application of amendment was filed immediately after the defendant’s objection thus showing that there was no mala fide intention. The court stated that, “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.”

Therefore, the Court upheld the impugned order and dismissed the suit.

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