WPMS/1004/2006 of SUMER SINGH Vs COMMISSIONER, GARHWAL MANDAL and ORS.

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Writ Petition No. 1004 of 2006 (M/S)

Sumer Singh, S/o Sri Kalyan Singh R/o Village Marhi Maichak, pargana Parwadoon, District Dehradun

…petitioner

versus

Commissioner, Garhwal Mandal,

Pauri and others

. …Respondents

Mr. B.P.Nautiyal, Senior Advocate assisted by Mr. Mohd. Matloob, Advocate for the petitioner.

Hon’ble Sharad Kumar Sharma, J. (Oral)

The petitioner is plaintiff in Suit for declaration of his rights under Section 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950, wherein he sought declaration in relation to the land lying in Khasra No. 186/1 having an area of 0.07 and Khasra No. 183/2 and having an area of 0.46 acres. The suit was instituted before the Court of Assistant Collector on 09.03.1995.

2. According to provision of Zamindari Abolition and Land Reforms Act, under Section 341 the Code of Civil Procedure has been made applicable on the proceedings under Zamindari Abolition and Land Reforms Act out and it is due to this reason that invariably in all proceedings under Zamindari Abolition and Land Reforms Act, in particular the proceedings under Section 229B or 209 the State constitutes to be necessary party and that is why the notice under Section 80 is issued to the State or the Authorities as defined under

Section 80 to ensure knowledge to them about the institution of the suit may it be that the relief might not have been sought against them. On reading of the plaint here the petitioner’s relief in the Suit is only vis-à-vis against respondent no. 3 & 4 and not against the respondent nos. 5 & 6. Hence, to comply with the condition of Section 80 the notice was already given to the State and the D.G.C revenue was contesting the proceedings before the court below.

3. The petitioner subsequently realising that there happens to be certain mistakes in the description of the property given in the plaint had filed an amendment application seeking to amend the description of the property by moving an application under Order 6 Rule 17 on 21.06.2005. It is this application which has been rejected by the Assistant Collector on 09.08.2005. The reason which has been assigned by the Assistant Collector for rejecting the application was that such an amendment cannot be permitted, because amendment in the description of the property, which is sought to be incorporated by way of amendment if allowed there would be non compliance of under Section 80 so far it relates to the newly disputed property, hence the notice given earlier will not constitute as to be in the notice under Section 80 of Code of Civil Procedure as given to the State at the time of the Suit.

4. In the instant case, since after the notice and initiation of the proceedings in 1995 till the time when the amendment application was filed in 2005 the State’s interest was being protected before the court below and by making of an amendment when the petitioner had confined his declaratory rights against the private respondents. It was not adversely affecting any interest of the State. Hence, not referring the Khasra numbers which have been sought to be incorporated by way of an amendment in Section 80 C.P.C. notice is irrelevant for the purpose of the proceedings of the Suit.

5. Being aggrieved against the order dated 09.08.2005 of the Assistant Collector rejecting the amendment application, the petitioner preferred revision invoking Section 333 of Zamindari Abolition and

Land Reforms Act which was too dismissed by the impugned judgment dated 25.07.2006.

6. At this stage, this Court feels that the reason which has been assigned for rejecting the application is contrary to the intention of law as to for what purpose the notice under Section 80 C.P.C. is intended to the issue to the State and public authorities. Thus, the reason for rejection of Order 6 Rule 17 is untenable. Other wise also allowing of amendment in pleadings lenient view has to be taken as it will not prejudice right of any party, they will have ample opportunity to controvert the amended plea. By allowing amendment it only enable the parties to place their case freely, rejection of amendment at times may be fatal as the party to the proceedings may to go for trial with fractured pleadings.

7. In the judgment of Hon’ble Apex Court reported in 2002 (7) SCC 559 in the case of Sampath Kumar vs. Ayyakannu and Another. Para 9 is quoted herein below:- (7) SCC 559 in the case of Sampath Kumar vs. Ayyakannu and Another. Para 9 is quoted herein below:-

(7) SCC 559 in the case of Sampath Kumar vs. Ayyakannu

“ 9. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amendment. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that mere delay cannot be ground for refusing prayer for amendment.”

8. Another judgment of Hon’ble Apex Court reported in 2001 (8) SCC 97 in the case of Estralla Rubber vs. Dass Estate (P) LTD. Para 8 is quoted herein below:-

“8. It is fairly settled in law that the amendment of pleadings under Order 6 Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing amendment should not result in injustice to the other side; normally clear admission made conferring certain right on plaintiff is not allowed to be withdrawn by way of amendment by defendant resulting in prejudice to such right of plaintiff, depending on facts and circumstances of given case. In certain situations, time-barred claim cannot be allowed to be raised by proposing an amendment to take away the valuable accrued right of party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cause serious prejudice to the opposite side. This Court in recent judgment in B.K. Narayana Pillai vs. Parameswaran Pillai after referring to number of decisions, in para 3 has stated, thus:-"3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation."

9. In that view of the matter, the writ petition is allowed. The impugned order for quashing the amendment application as filed by the petitioner on 21.06.2005 is, allowed. The petitioner, who is plaintiff before the court of Assistant Collector, is directed to incorporate the necessary amendment to the plaint and the Assistant Collector is directed to proceed with the case expeditiously pending before the Assistant Collector for consideration since 1995 and should conclude the same preferably within period of nine months from the date of this order.

(Sharad Kumar Sharma, J.)

25.07.2017

Nahid