The main legal point established in the judgment is that all amendments necessary to bring out the real controversy between the parties to the suit are permissible, as long as they do not change the nature of the suit or take away any substantive right accrued to the opponent.

Heard learned counsel for the parties.

2. Rule. Taken up for hearing forthwith by consent of counsel.

3. The subject matter of challenge in the present petition is the rejection of an amendment application moved by the plaintiff at the appellate stage. The petitioners herein are legal heirs of the original plaintiff, since deceased, substituted in his place. The plaintiff’s suit is for a perpetual injunction. He claims to be the owner of the suit property. It is his case that on the basis of an alleged sale deed dated 14th August, 1989, which was nominally executed by him, the defendant was trying to interfere with his peaceful possession and as a result, he was constrained to file the present suit seeking a perpetual injunction against the defendant. The suit was heard and dismissed by the trial Court. Being aggrieved, the plaintiff filed an appeal before the District Court at Buldhana. During the pendency of that appeal, the plaintiff moved the present application for amendment of the plaint, seeking a declaration that the sale deed dated 14th August, 1989 was nominal, sham and bogus and represented a money lending transaction and not a genuine sale in the eyes of law and hence, not binding upon the plaintiff. The District Court rejected that application. Hence the present writ petition.

4. The District Court rejected the application on two grounds. Firstly, it held that the issue of the sham and bogus nature of the transaction of sale was held by the trial Court against the plaintiff. The second ground was of delay.

5. All amendments which are necessary to bring out the real controversy between the parties to the suit are permissible. The amendment proposed in the present suit being prior to the introduction of the proviso to Order VI, Rule 17 of the Code of Civil Procedure, the amendment could be allowed at any stage of the suit (the appeal being nothing but a continuation of the suit) unless it changes the nature of the appeal or the suit, as the case may be. In the present case, the very relief of perpetual injunction originally claimed in the suit was based on an alleged invalid sale transaction. The sale transaction was even originally termed as a nominal, sham and bogus and money lending transaction. What was implicit earlier in the relief claimed in the suit is now being sought to be made explicit. There is no reason why such amendment should not be allowed. The amendment does not change the nature of the suit or take away any substantive right accrued to the opponent in defending the suit. As long as the merits of the amendment are open to debate including the issue of limitation, the respondent need not have any apprehension of being prejudiced at the trial by reason of the amendment. In the premises, the impugned order of the District Court cannot be sustained.

6. Learned counsel for the respondent relies on the judgment of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and ors., reported in (2009) 10 SCC 84. Relying on this judgment, it is submitted that the amendment sought by the plaintiff in the present case does not satisfy the principles laid down by the Supreme Court. In Revajeetu Builders and Developers vs. Narayanaswamy and Sons and ors. (supra), the Supreme Court, after analyzing English and Indian cases, laid down the following six basic principles, which ought to be taken into consideration whilst allowing or rejecting an amendment. These principles are as follows :

“(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And