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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Alka Sarin, J.
Buta Singh & Anr. - Petitioner(s) - Appellant
Versus
Basant Singh - Respondent - Respondent
CR-5000 of 2019 (O&M)
Decided On : 17-01-2023
Amendment - Conversion of Suit - The court allowed the amendment of the plaint from one for permanent injunction to a suit for mandatory injunction, following the principles laid down by the Hon’ble Supreme Court in the case of Sampath Kumar Vs. Ayyakannu & Anr. The amendment was permitted as it did not alter the basic structure of the suit, and the nature of relief sought was being changed in light of the alleged encroachment on the path after the filing of the suit.
Fact of the Case:
The plaintiff-petitioners claimed ownership of a house and filed a suit for permanent injunction against the defendant-respondent who allegedly tried to block a common passage. Subsequently, an application for amendment of the plaint was filed to convert the suit into one for mandatory injunction due to alleged encroachment on the passage by the defendant-respondent.
Finding of the Court:
The court allowed the amendment application, stating that the basic structure of the suit was not being altered, and the nature of relief sought was being changed in light of the alleged encroachment on the passage after the filing of the suit.
Issues: The main issue was whether it was permissible to convert the suit by way of the amendment from one for permanent injunction to a suit for mandatory injunction.
Ratio Decidendi: The court relied on the judgment of the Hon’ble Supreme Court in the case of Sampath Kumar Vs. Ayyakannu & Anr., which held that allowing the amendment would curtail multiplicity of legal proceedings and that the same relief which could be prayed for in a new suit could be permitted to be incorporated in the pending suit.
Final Decision: The revision petition was allowed, the impugned order was set aside, and the amendment application was allowed accordingly.
ALKA SARIN, J.
1. The present revision petition has been filed under Article 227 of the Constitution of India challenging the order dated 23.05.2019 (Annexure P-9) dismissing the application for amendment of the plaint.
2. The brief facts relevant to the present lis are that the plaintiff-petitioners claimed that they are owners in possession of one house measuring 18 ½ marlas which was purchased by them vide sale deed dated 18.01.2019 for an amount of Rs.10,25,010/-. It was further claimed that the house has a common passage/rasta measuring 12' x 50'. On the left side of the rasta is the house of defendant-respondent. It was pleaded that the defendant-respondent tried to forcibly block the rasta and hence a suit for permanent injunction was filed on 09.01.2019. After the filing of the suit, a wall was erected. After the erection of the wall by the defendant-respondent, complaints (Annexure P3 and P4) were sent to the authorities qua the encroachment on the public path. Subsequently, prior to the filing of the written statement, an application for amendment of the plaint was filed for converting the suit into one for mandatory injunction in view of the fact that after the filing of the suit there had been alleged encroachment on the rasta. The application for amendment of the plaint was only to include the fact that the defendant-respondent had illegally encroached upon the rasta as also for amendment in the prayer clause seeking relief for mandatory injunction. The said application was contested by the defendant-respondent. Vide the impugned order the said application was dismissed on the ground that in case there was any construction raised by the defendant-respondent, the plaintiff-petitioner would be required to file a fresh suit.
3. Learned counsel for the plaintiff-petitioners has relied upon the judgment of the Hon’ble Supreme Court in the case of Sampath Kumar Vs. Ayyakannu & Anr. [2002 (4) RCR (Civil) 566] to contend that when the basic structure of the suit was not being altered and only what was sought to be changed is the nature of the relief, the amendment ought to have been allowed especially keeping in view the fact that the same was being made at the very initial stage.
4. Per contra, learned counsel for the defendant-respondent has vehemently contended that the amendment would change the nature of the suit and hence it has rightly been dismissed.
5. Heard.
6. In the present case the short point involved is whether it is permissible to convert the suit by way of the amendment from one for permanent injunction to a suit for mandatory injunction. The intervening circumstances i.e. the alleged encroachment of the path after the filing of the suit, led to the filing of the application for amendment. The basic structure of the suit is not being altered, however, what is being sought to be altered is the prayer in the suit from permanent injunction to one for mandatory injunction. It would always be open to the plaintiff-petitioner to file a fresh suit. Once it is open for the plaintiff-petitioner to file a fresh suit, there would be no reason to deny the incorporation of the said prayer in the present suit.
7. Hon’ble the Supreme Court in the case of Sampath Kumar (supra) has held as under :
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 th
The main legal point established in the judgment is that an amendment to convert a suit from one relief to another relief may be allowed if it does not alter the basic structure of the suit and curta....
Amendments should be allowed for effective adjudication unless they create an entirely new case or disadvantage the opposite party.
The limitation for seeking a mandatory injunction begins from the date of actual encroachment, not from the completion of construction.
Amendment of pleadings is allowed if necessary for adjudication and does not cause injustice to the other side, as affirmed under Order 6 Rule 17 CPC.
The principle that amendments to pleadings should be allowed to ensure justice and to determine the real questions in controversy, provided they do not cause injustice or prejudice to the other party....
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