Case Note & Summary
The petitioner, original plaintiff, filed a suit for declaration that a notice dated 29th January 2008 issued by the first respondent (Commissioner of Bhiwandi Nizampur City Mahanagarpalika) was illegal. The petitioner claimed to be the owner in possession of the suit property. Subsequently, another notice dated 28th February 2008 was issued. The petitioner filed an application at Exhibit 35 seeking amendment of the plaint to correct the description of the suit property, specifically challenge the second notice, and implead one Raghunath Kunjan Rai as a party. The trial court rejected the application on two grounds: first, that the application was not verified in accordance with Order VI Rule 15 CPC, and second, that the petitioner had not pleaded necessary facts giving rise to a cause of action for the relief of declaration. The trial court also observed that Ajit Dynanoba Chavan was already impleaded as the second defendant and the application sought to implead Raghunath Kunjan Rai as the second defendant, which was inconsistent. The High Court noted that the suit was filed in 2008 and the amendment application was moved in September 2008. The court held that the defect in verification is not fatal and can be cured; the trial court should have granted an opportunity to rectify it. Regarding the cause of action, the court found that the plaint already contained averments about the second notice in paragraph 8, and the amendment was merely to add a specific challenge. The court also noted that the trial court's observation about impleadment was factually incorrect because the application sought to implead Raghunath Kunjan Rai as an additional defendant, not as the second defendant. The High Court allowed the writ petition, set aside the trial court's order, and permitted the amendment subject to payment of costs of Rs. 1,000 to the respondents.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Liberal Approach - The court held that amendments should be liberally allowed if no prejudice is caused to the other side and the amendment is necessary for determining the real controversy. The trial court's rejection on technical ground of verification was set aside. (Paras 4-5) B) Civil Procedure - Verification of Pleadings - Order VI Rule 15 CPC - Technical Defect - The court held that defect in verification is not fatal and can be cured. The trial court ought to have granted an opportunity to rectify the defect instead of rejecting the application. (Para 4) C) Civil Procedure - Impleadment of Party - Necessary Party - The court held that impleading a person who claims interest in the suit property is necessary for effective adjudication. The trial court's observation that the proposed party was already impleaded was factually incorrect. (Para 5)
Issue of Consideration
Whether the trial court was justified in rejecting the application for amendment of plaint on the ground of lack of proper verification and absence of necessary pleadings.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 5th January 2010, and permitted the amendment subject to payment of costs of Rs. 1,000 to the respondents. The amendment application was allowed.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Verification of pleadings
- Order VI Rule 15 CPC
- Liberal approach to amendments
- Prejudice test
