Amendment to add possession relief in declaration suit permissible pre-trial despite delay and framed issues if cause arose post-institution within limitation, avoiding multiplicity where separate suit viable.

JUDGMENT :

MANISH KUMAR NIGAM, J.

1. Heard Sri Devesh Kumar Verma, learned counsel for the petitioner and Sri Ajai Singh Kushwaha, learned counsel for the respondents.

2. This petition has been filed challenging the order dated 23.02.2024 passed by the trial court i.e. Additional Civil Judge (Senior Division) Court No. 8, Farrukhabad, rejecting an application for amendment filed by the plaintiff-petitioner in the suit. Against the order dated 23.02.2024, a revision was filed by the petitioner and the same has also been dismissed.

3. Brief facts of the case are that a suit for declaration was instituted on 29.05.2015, claiming ownership of the property in dispute on the basis of Will executed by the original owner of the property in dispute in favour of the petitioner. During pendency of the suit, an amendment application was filed by the petitioner, who was the plaintiff before the court below, in May, 2022 with the allegation that during the pendency of the suit in June, 2019, the defendants have taken forcible possession of the property in dispute and therefore, the decree of possession may also be passed in favor of the plaintiff-petitioner. The said application was opposed by the defendants and was ultimately dismissed by the trial court. Revision filed against the said order has also been dismissed.

4. It has been contended by learned counsel for the petitioner that the petitioner was only claiming a consequential relief because a cause of action for the same arose after filing of the suit. It has been further submitted by learned counsel for the petitioner that as per the case of the petitioner, the possession was taken forcibly by the defendants in June, 2019 and the consequent amendment application was filed by the petitioner in May, 2022 well within the limitation for filing a suit for possession. It has also been submitted by learned counsel for the petitioner that once a separate suit could have been filed by the petitioner, there was no impediment in allowing the amendment application as the same would result in avoiding the multiplicity of the proceedings.

5. Per contra, learned counsel for the respondents vehemently contended that the courts below have committed no illegality in rejecting the amendment application. The amendment application filed by the plaintiff-petitioner was highly delayed as the same was filed almost after three years of the alleged possession being taken by them, which was not admitted to the defendants as they were already in possession. It has been further submitted that the amendment application was hit by the proviso to Rule 17 of Order VI of C.P.C. as the issues have been framed in the suit and the suit has commenced.

6. Considering the rival submissions of the parties, I am of the opinion that the amendment sought by the plaintiff was only to incorporate a relief, which was based on a cause of action which arose after filing of the suit. Since the allegation of the plaintiff was that in June, 2019 the possession was taken and the consequential amendment application was filed in May, 2022 well within three years, the plaintiff could have filed a separate suit for the same relief which he sought to add in the plaint by seeking an amendment. Once a separate suit is permissible, there is no reason to deny a relief by amendment in the pending suit as the same will avoid multiplicity of the proceedings.

7. In case of Sampath Kumar versus Ayakannu