Case Note & Summary
The petitioners, Barkatali Abdul Razzak Kazi, Noorjahan Gafoor Shijwalkar, and Aishabi Jabbar Thakur, filed a writ petition in the Bombay High Court challenging an order dated 26 November 2013 passed by the learned Civil Judge, Junior Division, Panvel. The impugned order rejected the petitioners' application for amendment of the plaint under Order I Rule 10 and Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC). The petitioners are siblings of the respondent No. 1, Manzoor Abdul Razzak Kazi. Their father, Abdul Razzak Kazi, died on 11 July 1998. The properties in dispute were originally belonging to their grandmother, Sonabai, and were acquired for the New Bombay project. Awards were passed in Sonabai's name, and proceedings for enhancement of compensation were pending. The petitioners filed a suit for declaration of title and injunction against the respondent No. 1 and CIDCO (respondent No. 2). During the pendency of the suit, the petitioners sought to amend the plaint to add an alternative prayer for partition and separate possession, and to delete certain defendants. The trial court rejected the amendment on the ground that it would change the nature of the suit. The High Court considered the issue of whether the amendment should be allowed. The court noted that the suit was at the pre-trial stage and no issues had been framed. The court held that the amendment did not change the nature of the suit because the alternative prayer for partition was based on the same cause of action and was consistent with the existing pleadings. The court emphasized that pre-trial amendments should be liberally allowed to avoid multiplicity of proceedings and to do complete justice between the parties. The court also allowed the deletion of CIDCO as a formal party. The High Court set aside the trial court's order and allowed the amendment application, directing the petitioners to carry out the amendment within two weeks. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Amendment of Plaint - Order VI Rule 17 CPC - Alternative Relief - The court considered whether an amendment seeking to add an alternative claim for partition and separate possession changes the nature of the suit. Held that the amendment does not change the nature of the suit as it is based on the same cause of action and seeks alternative relief in the alternative. The court allowed the amendment, emphasizing that pre-trial amendments should be liberally allowed to avoid multiplicity of proceedings and to do complete justice between the parties. (Paras 7-10) B) Civil Procedure - Impleadment - Order I Rule 10 CPC - Deletion of Parties - The court allowed deletion of a formal party (CIDCO) at the risk of the petitioners, as it was not necessary for the adjudication of the dispute between the siblings. (Para 1) C) Civil Procedure - Amendment of Plaint - Change in Nature of Suit - The court held that adding an alternative prayer for partition does not change the nature of the suit because the suit was originally for declaration of title and injunction, and the alternative prayer is consistent with the existing pleadings. The court relied on the principle that amendments should be allowed to determine the real question in controversy. (Paras 8-10)
Issue of Consideration
Whether the amendment of the plaint seeking to add an alternative claim for partition and separate possession, and to delete certain defendants, should be allowed, and whether such amendment changes the nature of the suit.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 26th November 2013, and allowed the amendment application. The petitioners were directed to carry out the amendment within two weeks from the date of the order. No order as to costs.
Law Points
- Amendment of plaint
- Order VI Rule 17 CPC
- Order I Rule 10 CPC
- Alternative relief
- Change in nature of suit
- Pre-trial amendment
- Liberal approach
- Effective adjudication
