"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- MISC. SINGLE No. - 3088 of 2009
Petitioner :- Sirajuddin
Respondent :- Additional District Judge/ Special Judge (E.C Act) Gonda
Dated;Date: 23.04.2012
Hon'ble Saeed-Uz-Zaman Siddiqi,J.
This writ petition has been filed under Article 226 of the Constitution of India by which the petitioner has sought for quashing of orders passed by Civil Judge, Gonda and District Judge by which amendment application moved by the petitioner in original suit no.1428 of 1998 has been rejected.
Admittedly, the petitioner was inducted by the respondents to enter into the premises of the respondents to open a shop of fruit seller at the rate of Rs.620/- per month and Rs.40/- per month for electricity dues. The petitioner was delivered possession of the shop on 1.3.1997 for a period up to 31.12.1998.
After expiry of the said period, the petitioner did not vacate the premises and filed regular suit bearing no.1428 of 1998 for injunction in the form of mandamus. During the pendency, plaintiff moved an amendment application after filing of written statement by the respondents by which removal of word "Theka" was to be substituted by the word "Kirayanama". The learned Trial Court rejected the amendment application dated 11.09.2008 on the ground that the plaintiff (now petitioner before this court) is changing the nature of the suit and as such, said amendment cannot be permitted. The plaintiff (petitioner) preferred a revision under Section 115 of CPC bearing no.273 of 2008 before the District Judge, who also rejected the revision petition and confirmed the order passed by the learned Trial Court against which this writ petition has been preferred.
I have heard learned counsel for parties and have gone through the records.
The only indiscripancy in the impugned order was brought to the notice of this court by the learned counsel for the petitioner is that the learned Trial Court has observed that the petitioner/plaintiff has not filed rent receipts. Whereas, the District Judge has mentioned in the judgment that the revisionist (petitioner) has filed rent receipts. It is absolutely inmmaterial and has no bearing to the case.
The law of amendment is settled by the Apex Court and has well been reported in M/s Revajeetu Builders & Developers v. Narayanaswamy & sons and others in Civil Appeal No.6921 of 2009, arising out of SLP (c) No.1552 of 2007, that if said amendments are allowed, other parties will be irretrievably prejudiced by being denied the opportunity of obstructing the amendment of the defendant. In the case of M/s Revajeetu Builders & Developers v. Narayanaswamy & sons and others (supra), the Apex Court has observed as under:
"If we carefully examine all the cases, the statement of law declared by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung has been consistently accepted by the courts till date as correct statement of law. The Privy Council Observed:
"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.
It was further observed by the Apex Court:
"In the leading English case of Cropper v. Smith, the object underlying amendment of pleadings has been laid down by Browen, L.J. in the following words: It is a well established principle that the object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct in their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ... it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right."
In this case the Apex Court has traced the legislative history, observation reasons for incorporating Order 6 Rule 17 of CPC not because it was necessary to dispose of the case but a large number of applications under Order 6 Rule 17 CPC are filed. Courts are flooded with such cases (AIR 1922 PC 249). Indiscriminate filing of applications of amendments is one of the main causes of delay in disposal of civil cases.
In view of the law as discussed above, the amendment application has been moved with ulterior motive and to keep the premises in occupation. The petitioner was bound to vacate the premises on 31.12.1998 and he is still in occupation as submitted before me by learned counsel for the respondents. Learned counsel for the petitioner submitted that the suit before the learned Trial Court is proceeding and is fixed for final hearing. Temporary injunction application has also been rejected by the learned Trial Court. Even then, the opposite parties are not getting it vacated and are, thus, committing breach of trust as against their employer, the Corporation.
When the learned Trial Court did not issue temporary injunction in favour of the plaintiff, the respondent nos. 3 to 6 were bound to get the premises vacated, after expiry of the term of license which they did not.
I must mention here that occupation of the petitioner in the government premises after 31.12.1998 is adverse in nature which could have been legalized only by granting fresh license for a fresh period of one year by respondent nos. 3 to 6. If the license has not been renewed, the respondent nos.3 to 6 are obviously guilty of dereliction of duty and have behaved unlike that of a vigilant government servant for which they deserve to be pulled.
With these observations, writ petition is dismissed with cost.
Date: 23.04.2012
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- MISC. SINGLE No. - 3088 of 2009
Petitioner :- Sirajuddin
Respondent :- Additional District Judge/ Special Judge (E.C Act) Gonda
Dated;Date: 23.04.2012
Hon'ble Saeed-Uz-Zaman Siddiqi,J.
This writ petition has been filed under Article 226 of the Constitution of India by which the petitioner has sought for quashing of orders passed by Civil Judge, Gonda and District Judge by which amendment application moved by the petitioner in original suit no.1428 of 1998 has been rejected.
Admittedly, the petitioner was inducted by the respondents to enter into the premises of the respondents to open a shop of fruit seller at the rate of Rs.620/- per month and Rs.40/- per month for electricity dues. The petitioner was delivered possession of the shop on 1.3.1997 for a period up to 31.12.1998.
After expiry of the said period, the petitioner did not vacate the premises and filed regular suit bearing no.1428 of 1998 for injunction in the form of mandamus. During the pendency, plaintiff moved an amendment application after filing of written statement by the respondents by which removal of word "Theka" was to be substituted by the word "Kirayanama". The learned Trial Court rejected the amendment application dated 11.09.2008 on the ground that the plaintiff (now petitioner before this court) is changing the nature of the suit and as such, said amendment cannot be permitted. The plaintiff (petitioner) preferred a revision under Section 115 of CPC bearing no.273 of 2008 before the District Judge, who also rejected the revision petition and confirmed the order passed by the learned Trial Court against which this writ petition has been preferred.
I have heard learned counsel for parties and have gone through the records.
The only indiscripancy in the impugned order was brought to the notice of this court by the learned counsel for the petitioner is that the learned Trial Court has observed that the petitioner/plaintiff has not filed rent receipts. Whereas, the District Judge has mentioned in the judgment that the revisionist (petitioner) has filed rent receipts. It is absolutely inmmaterial and has no bearing to the case.
The law of amendment is settled by the Apex Court and has well been reported in M/s Revajeetu Builders & Developers v. Narayanaswamy & sons and others in Civil Appeal No.6921 of 2009, arising out of SLP (c) No.1552 of 2007, that if said amendments are allowed, other parties will be irretrievably prejudiced by being denied the opportunity of obstructing the amendment of the defendant. In the case of M/s Revajeetu Builders & Developers v. Narayanaswamy & sons and others (supra), the Apex Court has observed as under:
"If we carefully examine all the cases, the statement of law declared by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung has been consistently accepted by the courts till date as correct statement of law. The Privy Council Observed:
"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.
It was further observed by the Apex Court:
"In the leading English case of Cropper v. Smith, the object underlying amendment of pleadings has been laid down by Browen, L.J. in the following words: It is a well established principle that the object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct in their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ... it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right."
In this case the Apex Court has traced the legislative history, observation reasons for incorporating Order 6 Rule 17 of CPC not because it was necessary to dispose of the case but a large number of applications under Order 6 Rule 17 CPC are filed. Courts are flooded with such cases (AIR 1922 PC 249). Indiscriminate filing of applications of amendments is one of the main causes of delay in disposal of civil cases.
In view of the law as discussed above, the amendment application has been moved with ulterior motive and to keep the premises in occupation. The petitioner was bound to vacate the premises on 31.12.1998 and he is still in occupation as submitted before me by learned counsel for the respondents. Learned counsel for the petitioner submitted that the suit before the learned Trial Court is proceeding and is fixed for final hearing. Temporary injunction application has also been rejected by the learned Trial Court. Even then, the opposite parties are not getting it vacated and are, thus, committing breach of trust as against their employer, the Corporation.
When the learned Trial Court did not issue temporary injunction in favour of the plaintiff, the respondent nos. 3 to 6 were bound to get the premises vacated, after expiry of the term of license which they did not.
I must mention here that occupation of the petitioner in the government premises after 31.12.1998 is adverse in nature which could have been legalized only by granting fresh license for a fresh period of one year by respondent nos. 3 to 6. If the license has not been renewed, the respondent nos.3 to 6 are obviously guilty of dereliction of duty and have behaved unlike that of a vigilant government servant for which they deserve to be pulled.
With these observations, writ petition is dismissed with cost.
Date: 23.04.2012
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