IMPORTANT POINT
It is permissible to convert through amendment a suit merely for permanent prohibitory injunction into a suit for declaration of title and recovery of possession as the basic structure of suit is not altered by the amendment. However, as amendment is sought 11 years after suit, it will take effect from date of making the application with costs as condition precedent.

Headnote:Civil Procedure Code, 1908-Order 6 Rule 17-Amendment of plaintiff-Suit for permanent prohibitory injunction-Belated amendment to convert it into a suit for declaration of title and recovery of possession-Disallowed both by trial Court and High Court-Appeal against-Whether it is permissible to convert through amendment a suit merely for permanent prohibitory injunction into a suit for declaration of title and recovery of possession? (Yes)-Amendment allowed on payment of costs w.e.f. date on which amendment application was filed and not from date of suit-Case law discussed.
       Held : In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff s revision. We fail to understand, if it 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 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. (Para 7)
       Held : 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 debarred 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 of issuance of permanent 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 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 permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating 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 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 in substantiating the factual averments and/or the defendant succeeds in substantiating the plea which he would obviously be permitted 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 before the commencement of the trial. 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 permitted to incorporate the plea 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 amendment, it is 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. (Paras 11, 12 and 13)

Judgement Key Points

The case was decided by the Supreme Court of India [2002 Supreme(SC) 923][2002 AIR(SC) 3369][2002 AIR(SCW) 3925][2002 6 ALD(SC) 63][2003 1 AllCJ 1][2002 49 AllLR 591][2002 4 AllMR(SC) 866][2003 1 APLJ 1][2003 1 AWC 18][2002 3 BLJR 2290][2003 1 BLJR 93][2003 1 CHN(SC) 184][2002 3 CivCC 364][2002 4 CTC 189][2003 2 CurLJ 45][2002 4 ICC 859][2002 ILR(Kar) 5055][2003 1 JCR(SC) 283][2002 7 JT 182][2002 20 LCD 1186][2002 3 MLJ 160][2002 2 PLJ 445][2002 4 RCR(Civ) 566][2003 94 RD 148][2003 1 RLW(Raj) 49][2002 6 Scale 544][2002 7 SCC 559][2002 SCR 397][2003 1 WBLR 174][2002 1 WLC 797][2002 KHC 1366][2002 6 Supreme 424], which is the Supreme Court of India [Supreme Court of India].

ORDER

Leave granted.

2. The plaintiff-appellant filed a suit for issuance of permanent prohibitory injunction alleging the plaintiff-appellant s possession over the suit property 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.

3. In the year 1999, but before the commencement of the trial, the plaintiff 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 delivery of possession. The suit was proposed to be valued accordingly along with the 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 therefore a valuable right had accrued to the defendant which was sought to be taken away by the proposed amendment.

4. 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 Court in revision. Although the plaintiff had sought for some more amendment so as to correct the description of the suit property; however that part of the prayer for amendment was not later pressed by the plaintiff before the Court.

5. The short question arising for decision is whether it is permissible to convert through amendment a suit merely for permanent prohibitory injunction into a suit for declaration of title and recovery of possession.

6. 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 averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.

7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff s revision. We fail to understand, if it 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 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.

8. In Mst. Rukhmabai Vs. Lala Laxminarayan & Ors.. AIR 1960 SC 335, this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.

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

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2002 Supreme(SC) 923

Cases Referred (2)