SAMPATH KUMARversusAYYAKANNU AND ANR.

                           SAMPATH KUMAR                                       A
                                     v.
                        AYYAKANNU AND ANR.

                          SEPTEMBER 13, 2002

               [R.C. LAHOTI AND BRIJESH KUMAR, l]                              B


      Code of Civil Procedure, 1908:

       Order 6, r.17-Suit-Amendment-Plaintiff. after JI years of filing of
suit, b111 before trial of suit began, seeking amendment of plaint of suit for C
pernianenl injunction and converting it into s11it for declaration of title and
recovery of possession-According to him, cause of action arose pending
suit-Defendant contending that as he was already in possession and had
perfected his title by adverse possession suit for injunction was not maintainable
and amendment could not be allowed-Trial court declining lo allow D
amendment held that appropriate co11rse for plaintiff was to file a new Sllit-
Held, Order 6, r. I 7 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-In the instant case, basic structure of E
the suit is not altered by the proposed amendment -Though plaintiff is not
debarred from instituting a new suit on the same basic facts-Allowing the
amendment would c11rtail multiplicity of legal proceedings-However, interest
of defendant can be protected by directing that so far as relieft for declaration
of title and recovery of possession are concerned, the prayer in that regard F
would be deemed to have been made on the date the application for amendment
was filed-Plaintiff allowed to incorporate the amendment accordingly-It is
open to defendant to take the conseq11ential pleas-Since the amendment was
so11ght for before the commencement of the trial, defendant is not prejudiced--
Amendment of plaint-Doctrine of relation back.
                                                                               G
      Mst. R11khmabai v. Lala Laxminarayan and Ors., AIR (1960) SC 355,
referred to.

       Amendment of plaint-So11ght after 11 years but before commencement
of trial-Delay-Effect-Held, the q11estion of delay in moving an application
                                    397                                        H
    398                       SUPiU~ME COURT REPORTS (2002) SUPP. 2 S.C.R.

A for umettdme»I "should be decided not by calculating the pel"iodfrom the date
  of institution of the suit olt>tte but by reference 10 the stage to which the
  hearing in the suit ltd$ proceeded-Pre-trial amendments are allowed more
  liberally than t~ which are sought to be made after the commencement of
  the /rial or ttfter conclusion thereof-In former case generally it can be as.mmed
B thal tlte defendant is not prejudiced because he will have full oppor/llnity of
  meeting the case of the plaintiff as amended-In the latter cases the question
  ofprejudice to the oppos1'te patty may arise and that shall have to be answered
  by reference to the/iN:f'S find circumstances ofeach individual case-No strait-
  jacket formula ean be laid down-The fact remains that a mere delay cannot
  be a ground for refusing a prayer for amendment-Code of Civil Procedure,
C 1908-0rder 6, r.17.
          Doctrine of relation back-Suit-Amendment of plaint-Held, an
    amendment once incorporotttd 1'1!late8 back to the date of the suit-However,
    the doctrine of relation bttclc iH lhi? context of amendment ofpleadings is not
    one of universal application and in appropriate cases the court is competent
D   while permilling an amendment to direct that the amendment permitted by it
    shall not relate back to the date of the suit and to the extent permitted by it
    shall be deemed to have been brought before the court on the date on which
    the application seeking the amendment was filed-Code of Civil Procedure,
    1908-0rder 6, r.17.
E           Siddalingamma and Anr. v. Mamtha Shenoy, f2001 I 8 SCC !!61, relied
    on.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5839 of
    2002.
F        From the Judgment and Order dated 6.8.2001 of the Chennai High
    Court in C.R.P. No. 2046 of 200 I.

            V. Prabhakar, Ms. Reena and M.K.D. Namboodiri for the Appellants.

            P.V. Yogeswaran, Balaji Srinivasan and R.C. Kaushik, for the
G Respondent.
            The following Order of the Court was delivered :

            Leave granted.

H           The plaintiff-appellant filed a suit for issuance of permanent prohibitory
                         SAMPATH KUMAR v. AYY AKANNU                             399
    injunction alleging the plaintiff-appellant's possession over the suit property      A
    which is an agricultural land. The defendant in his written statement denied
    the plaint averments and pleaded that on the date of the institution of the suit
    he was in possession of the suit property and therefore the suit for injunction
    was liable to be dismissed. The suit was instituted in the year 1988.

            In the year 1999, but before the commencement of the trial, the plaintiff    B
    moved an application under Order VI Rule 17 CPC seeking an amendment
    in the plaint. It is alleged in the application that in January 1989, that is,
    during the pendency of the suit, the defendant has forcibly dispossessed the
    plaintiff. On such averment the plaintiff sought for relief of declaration of
    title to the suit property and consequential relief of the delivery of possession.   C
    The suit was proposed to be valued accordingly along with payment of court
    fee. The prayer for amendment was opposed on behalf of the defendant·
    respondent submitting that the plaintiff was changing the cause of action
    through amendment which was not permissible and also on the ground that
    the defendant has perfected his title also by adverse possession over the suit
    property rendering the suit for recovery of possession barred by time and            D
    therefore a valuable right had accrued to the defendant which was sought to
    be taken away by the proposed amendment.

          The Trial Court rejected the application for amendment. During the
    course of its order the Court observed that the appropriate course for the
    plaintiff was to bring a new suit. This order has been maintained by the High        E
    Court in revision. Although the plaintiff had sought for some more amendment
    so as to correct the description of the suit property; however the part of the
    prayer for amendment was not later pressed by the plaintiff before the Court.
)
          The short question arising for decision is whether it is permissible to        F
    conve11 through amendment a suit merely for permanent prohibitory injunction
    into a suit for declaration of title and recovery of possession.

          It is true that the plaintiff on the averments made in the application for
    amendment proposes to introduce a cause of action which has arisen to the
    plaintiff during the pendency of the suit. According to the defendant the            G
    averments made in the application for amendment are factually incorrect and
    the defendant was not in possessio1{di'the property since b,efore the institution
    of the suit itself.                  . ·. :- ·.        .:.:::':.f;;:~;
                                                                ~ \'f




         In our opinion, the basic structure of the suit is not altered by the
    proposed amendment. What is souglit to be changed is the nature of relief            H
    400                      SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A sought for by the plaintiff. In the opinion of the Trial Court it was one to the
    plaintiff to file a fresh suit .and that is one of tile reasons which has prevailed
    with the Trial Court littd With the High Court in refusing the prayer for
    amendment and also in dismissing the plaintiffs revision. We fail to
    understand, if 1t is permissible for the plaintiff to file an independent suit,
    why the same relief.which could be prayed for in a new suit cannot be
B   permitted to be incorporated in the pending suit. In the facts and circumstances
    of the present case, allowing the amendment would curtail multiplicity of
    legal proceedings.

          In Mst. Rukhmabai v. Lala Laxminarayan and Ors., AIR (1960) 335,
C   this Court has taken the view that whe're a suit was filed without seeking an
    appropriate relief, it is a well settled rule of practke not to dismiss the suit
    automatically but to allow the plaintiff to make ttecessaty amendment if he
    seeks to do so.

          Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow
D 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 permitkd to be made. The question of delay in
    moving an application for amendment should be decided not by calculating
E   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 proce.eded. 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 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 amended. In the latter
F   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 strait-jacket formula can be laid down. The fact remains
    that a mere delay cannot be a ground for refusing a prayer for amendment.

          An amendment once incorporated relates back to the date of the suit.
G However, the doctrine of relation back in the context of amendment of
    pleadings is not one of universal application and in appropriate cases the
    Court is competent while permitting an amendment to direct that the
    amendment permitted by it shall not relate back to the date of the suit and
    to the extent permitted by it shall be deemed to have been brought before the
H   Court on the date on which the application seeking the amendment was filed.
                      SAMPATH KUMAR v. AYY AKANNU                           401
  (See observation in Siddalingamma and Anr. v. Mamtha Shenoy, [2001] 8 A
  sec 561.
         In the present case the amendment is being sought for almost 11 Years
  after the date of the institution of the suit. The plaintiff is not dabarred from
  instituting a new suit seeking relief of declaration of title and recovery of
  possession on the same basic facts as are pleaded in the plaint seeking relief B
  of issuance of pennanent prohibitory injunction and which is pending .. In
  order to avoid multiplicity of suits it would be a sound exercise of discretion
  to permit the relief of declaration of title and recovery of possession being
  sought for in the pending suit. The plaintiff has alleged the cause of action
  for the reliefs now sought to be added as having arisen to him during the C
  pendency of the suit. The merits of the averments sought to be incorporated
  by way of amendment are not to be judged at the stage of allowing prayer
  for amendment. However, the defendant is right in submitting that if he has
  already perfected his title by way of adverse possession then the right so
' accrued should not be allowed to be defeated by pennitting an amendment
  and seeking a new relief which would relate back to the date of the suit and D
  thereby depriving the defendant of the advantage accrued to him by lapse of
  time, by excluding a period of about 11 years in culcating the period of
  prescriptive title claimed to have been earned by the defendant. The interest
  of the defendant can be protected by directing that so .far as the reliefs of
  declaration of title and recovery of possession, now sought for, are concerned E
  the prayer in that regard shall be deemed to have been made on the date on
  which the application for amendment has been filed.

        On the averments made in the application., the same ought to have been
  allowed. If the facts alleged by plaintiff are not correct it is open for the
  defendant to take such plea in the written statement and if the plaintiff fails   F
  in substantiating the factual averments and/ or the defendant succeeds in
  substantiating the plea which he would obviously be pennitted to raise in his
  pleading by way of consequential amendment then the suit shall be liable to
  be dismissed. The defendant is not prejudiced, more so when the amendment
  was sought for commencement of the trial.                                         G
        For the foregoing reasons, the appeal is allowed. The impugned orders
  of the High Court and the Trial Court are set aside. The plaintiff is pennitted
  to incorporate the pleas sought to be raised by way of amendment in the
  original plaint foregoing the plea to the extent given up by him before the
  Trial Court, However, in view of the delay in making the application for H
    402                    SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A amendment, it !~ directed that the plaintiff shall pay a cost of Rs. 2,000
    (Rupees Two Thousand only) as a condition precedent to incorporating the
    amendment in the plaint. The prayer for declaration of title and recovery of
    possession shall be deemed to have been made on the date on which the
    application for amendment was filed.

B R.P.                                                         Appeal allowed.




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