Case Note & Summary
The petitioners, Gaimukh Deosthan (a private trust) through its occupants/managers, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 19/03/2011 passed by the learned 2nd Joint Civil Judge, Senior Division, Nagpur, rejecting their application for amendment of the plaint in Special Civil Suit No.777/2004. The trust was created by Ganpatrao Pande and owned properties including Ganesh Bhuvan, Civil Lines, Nagpur. The petitioners alleged that the respondents (Yogesh Pande, Meena Pande, and Akshay Pande) forcibly took possession of 3000 sq. ft. of the property on 05/05/2004. Consequently, the petitioners filed Special Civil Suit No.777/2004 under Section 6 of the Specific Relief Act, 1963 for restoration of possession. However, due to inadvertence, the plaint did not include a specific prayer for restoration of possession and removal of illegal construction/encroachment. The respondents filed a written statement and later moved an application for dismissal of the suit on the ground that the suit lacked a prayer for possession and was thus not maintainable under Section 6. In response, the petitioners filed an amendment application on 16th October 2010 to incorporate the necessary prayers. The trial court rejected the amendment application citing delay and that the suit was fixed for hearing, and that the amendment was not based on subsequent events. The High Court, after hearing both sides, set aside the trial court's order. The court held that since the trial had not commenced and issues were not framed, the amendment was at a pre-trial stage and should be allowed liberally. The court emphasized that the amendment was necessary to bring the plaint in conformity with the cause of action under Section 6 of the Specific Relief Act and that no prejudice would be caused to the respondents. The court allowed the amendment application and directed the trial court to proceed with the suit in accordance with law.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Pre-trial stage - The court held that since the trial had not commenced and issues were not framed, the amendment application was at a pre-trial stage and ought to have been allowed liberally. The trial court erred in rejecting the amendment solely on the ground of delay, as the amendment was necessary to bring the plaint in conformity with the cause of action under Section 6 of the Specific Relief Act, 1963. (Paras 5-6) B) Specific Relief Act - Suit for Possession - Section 6 - Prayer for Possession - The suit was filed under Section 6 of the Specific Relief Act, 1963 for restoration of possession, but inadvertently the prayer for possession and removal of encroachment was omitted. The court held that such an amendment is permissible to cure the defect and does not change the nature of the suit. (Paras 3, 5) C) Civil Procedure - Amendment of Pleadings - Delay - The court observed that mere delay is not a ground to reject an amendment if no prejudice is caused to the opposite party and the amendment is necessary for the determination of the real controversy. The trial court's reasoning that the amendment was not based on subsequent events was erroneous as the amendment was to incorporate a prayer that was inadvertently omitted. (Paras 4-6)
Issue of Consideration
Whether the trial court was justified in rejecting the application for amendment of the plaint on the ground of delay when the suit was at the stage of hearing and the amendment was necessary to incorporate a prayer for possession and removal of encroachment in a suit under Section 6 of the Specific Relief Act, 1963.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 19/03/2011, and allowed the amendment application. The trial court was directed to proceed with the suit in accordance with law.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Section 6 Specific Relief Act
- 1963
- Delay in amendment
- Pre-trial stage amendment
- Liberal approach to amendment
