Chamber Summons No.27 of 2002,Suit No.1984 of 1981

5th April, 2004

Petitioner Counsel: Shri. A.I.I. PATEL

Cases Cited:
Raghu Thilak D. John Vs. S. Rayappan, 2001(1) ALL MR 853 (S.C.)=AIR 2001 S.C. 699 [Para 3,7]
Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Goregao, AIR 1969 S.C. 1267 [Para 3,8]
Mudra Salt and Chemical Industries Vs. Collector, Thane, 2001(3) ALL MR 356=2001(3) Mh.L.J. 151 [Para 3,9]

JUDGMENT

JUDGMENT :- This Chamber Summons is taken out by the plaintiff and prayed as under;

"(a) That the delay of 21 years in filing the above Chamber Summons be condoned.

(b) That this Hon'ble Court be pleased to allow the plaintiff to carry out amendment to the plaint and proceeding in terms of schedule annexed."

2. The basic suit filed by the plaintiff is pending in the High Court, for trial. The issues are framed. The trial is not yet begun. The main prayer in the suit is for possession of the premises in question i.e. 600 sq. feet structure, bearing Municipal Ward No.M-2561 (24EA) situated at Vashi Naka, Near Burmah Shell Colony, Chembur, Bombay-400074.

3. The basic prayer according to the plaintiff is that pending the suit for possession, he is entitled for compensation per month as referred in the suit. The plaintiff has claimed compensation from 31st May, 1984. The plaintiff has relied on the following judgments.

1. AIR 2001 S.C. 699 : 2001(1) ALL MR 853 (S.C) (Raghu Thilak D. John Vs. S. Rayappan and others).

2. AIR 1969 S.C. 1267 (Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Goregaon).

3. 2001(3) Mh.L.J. 151 : 2001(3) ALL MR 356 (Mudra Salt and Chemical Industries Vs. Collector, Thane and others).

4. None appeared for defendants, Plaintiff's Advocate Mr. A.I.I. Patel made a statement, that the parties are duly served. On this statement, we are proceeding with the matter.

5. The learned Counsel, referred Order 6, Rule 17, newly amended provisions, with effect from 7/7/2002 which is reproduced as under:

"Rule 17.- Amendment of Pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

6. Based on this, plaintiff submits that, as trial has not yet commenced and only issues are framed and as the present amendment, as sought, is not changing the nature in earlier pleas and it is based on the pleadings already made, no injustice or prejudice will be caused to the other side, if this amendment is allowed.

7. He conceded, so far as limitation is concerned in view of A.I.R. 2001 S.C. 699 : 2001(1) ALL MR 853 (S.C), para 6 which is reproduced as under;

"If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for."

Thus in view of the above the point of limitation is kept open, to be decided at appropriate time. The defendants shall have full opportunity to file the amended written statement to oppose the same also. I feel that in the circumstances, as the plea of limitation is kept open no injustice or prejudice would be caused to the other side, if the amendment is allowed.

8. The Counsel for the plaintiff further relied on the Judgment of Supreme Court in AIR 1969 S.C. 1267. He contended that the discretion should be exercised in the favour of granting amendment, and amendment should not be refused on technical grounds.

9. He further relied on the Judgment 2001(3) Mah.L.J. 151 : 2001(3) ALL MR 356 (Mundra Salt and Chemical Industries Vs. Collector, Thane and others). He contended that while considering application for amendment under Order 6, Rule 17 of the C.P.C., merits of the amendment need not and should not be considered. He referred to para 13, which is reproduced as under;

"It is well settled that while considering application for amendment, merits of the amendment need not be and should not be considered. In this behalf reference may be made to a decision of the Supreme Court in the case of Suraj Prakash Vs. Raj Rani, AIR 1981 SC 484 (para 7) and of High Court of Himachal Pradesh in the case of Hari Dass Vs. Kali Dass, A.I.R. 1979 HP 54 (para 5) which reads as under:

It is well settled that when considering whether the amendment should be allowed, the Court need not or ought not to go into the alleged falsity of the case in the amendment nor the Court ought to give its findings on the merits of the amendment sought for without first allowing the amendment, frame the issue therein and allowing both the sides to adduce evidence.

The trial Court was therefore, wrong in rejecting the application for amendment considering the merits thereof. This course was not permissible.

In the circumstances, the impugned order rejecting application for amendment is set aside. Applicant Exh.49, seeking amendment to the plaint is allowed. Petitioner to carry out amendment within 15 days from the date of receipt of writ from this Court and defendant shall also be at liberty to make consequential amendment to the written statement within 15 days thereafter, if so advised."

10. Considering the above settled law and in view of the fact that the plea of limitation is kept open, and further I see no reason to disallow the amendment application as prayed.

11. Furthermore, in this case the trial itself has not yet commenced. Therefore, even as per newly added proviso to Order 6 Rule 17, such delayed amendment is not totally impermissible. So far as, delay in filing this amendment application in question, to which plaintiff's case is that no prejudice will cause, if this amendment is allowed. The basic pleadings are same and cause of action is continuous. The case of continuous illegal use, occupation and possession of the defendants of the suit premises after efflux of time cannot be over looked. However, as there is no opposition or any affidavit filed on record by the respondents/defendants, I see there is no reason to disallow the Chamber Summons. However, plaintiff is directed to deposit Rs.1000/- in the Legal Aid Department, as a cost.

12. In view of this the Chamber Summons is allowed in terms of prayer (a) and (b).

13. The amendment be carried out within three weeks.

14. Chamber summons is disposed of.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Chamber Registrar of this Court.

Petition allowed.