Munwar Baig, v. Md. Rahamtullah Baig,

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition No.2237 of 2015 ORDER:

This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful petitioner/3rd plaintiff is directed against the orders dated 20.04.2015 of the learned Additional Senior Civil Judge, Machilipatnam passed in IA.no.218 of 2015 in OS.no.243 of 2004 filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 ('the Code', for brevity) requesting to grant leave to amend the plaint as stated in the affidavit and in the petition list.

2. I have heard the submissions of the learned counsel for the revision petitioner/3rd plaintiff ('the plaintiff', for brevity) and the learned counsel for the respondents 1,3 and 4/defendants 1,3 and 4 ('the defendants', for brevity). Though respondents 2 and 5 are served with the notices, none appeared. The other respondents are the plaintiffs. They are stated to be not necessary parties. I have perused the material record.

3. The case of the plaintiffs 2 to 9 as stated by the 3rd plaintiff in the affidavit filed in support of the request for amendment of the plaint, in brief, is this:

The suit is filed for declaration of title and consequential perpetual injunction in respect of an immovable property and for costs. The 1st plaintiff, who is the father of the 3rd plaintiff died intestate on 04.12.2008. During his life time, the 5th defendant Municipality used to run a municipal elementary school in the plaint schedule property. However, without information and without knowledge of the trial Court, the 5th defendant Municipality had given possession of the property to the 1st defendant. In fact, during the pendency of the suit, the 5th defendant Municipality was paying rents to the late father of the 3rd plaintiff, that is, the 1st plaintiff; and on his demise, the 1st defendant

had obtained possession of the plaint schedule property during the year 2014 by using his political powers. Subsequently, upon a visit made by the advocate commissioner, the 3rd plaintiff came to know about the 5th defendant Municipality closing the elementary school and delivering possession of the property to the 1st defendant. In fact the 1st defendant is a court auction purchaser from Puvvada people. The said property is different from the property involved in the suit. In the circumstances, the plaintiff is advised to seek amendment of the plaint to claim the relief of recovery of possession instead of the relief of consequential perpetual injunction and also seek the consequential amendments in regard to valuation of the said relief of recovery of possession and payment of Court fee and the prayer in the suit by substitution of the relief of recovery of possession in the place of the relief of consequential perpetual injunction. Hence, the petition is filed.

4. The case of the defendants 1 to 4 in their counter, in brief, is this: On the death of the sole plaintiff, the plaintiffs 2 to 9 have come on record being the legal representatives of the deceased sole plaintiff. The suit is filed for declaration that the said sole plaintiff is the absolute owner of the schedule property and for a perpetual injunction. These defendants had disputed the title as well as the possession of the plaintiff over the plaint schedule house. The allegations that during the life time of the sole plaintiff, the 5th defendant Municipality used to run a school and that without the information and knowledge of the Court, the 5th defendant Municipality has given possession of the property to the 1st defendant and that the 5th defendant Municipality was paying rents to the deceased sole plaintiff during his life time and that the 1st defendant had obtained possession by using political power are all not correct.

The averment that upon the Commissioner's visit the 3rd plaintiff came to know about the delivery of possession of the property and the other averments in the affidavit filed in support of the petition are all false. The deceased sole plaintiff was never in possession of the plaint schedule property. T h e Municipal Elementary school is situated in Door no.24/336 and it is not the plaint schedule

property. The vendor of the 1st defendant had purchased in a Court auction, the houses bearing door nos.24/336 and 24/337. Since the 5th defendant Municipality is in possession of the property bearing door no.24/336, the vendor of the 1st defendant had obtained symbolic delivery of the said house. The vendor of the 1st defendant used to get rent from the 5th defendant Municipality. After the 1st defendant had purchased the properties bearing house nos.24/336 and 24/337, the 5th defendant Municipality had paid the rents to the 1st defendant. The plaint schedule property bears house numbers 24/334 and 24/335. The elder brother of the 1st defendant by name Karam Tulla Baig and sister Noorjahan Baig are the absolute owners of the said properties with door numbers 24/334 and 24/335. They are not impleaded as parties to the suit.

After the deaths of the said Karam Tulla Baig and Noorjahan Baig, their family members are in occupation of the properties bearing door nos. 24/334 and 24/335. The property with door no.24/336 is not the plaint schedule property. As such the question of the 5th defendant Municipality delivering plaint schedule property during the pendency of the suit to the 1st defendant does not arise and the said allegation is incorrect. Therefore, there is no necessity for the 5th defendant Municipality to bring to the notice of the Court about the delivery of the said property to the 1st defendant. Having realized that the suit would be dismissed on merits, the plaintiffs 2 to 9 had filed the present petition for amendment even though they have no case.

On the alleged delivery of possession of the property in the occupation of the school to the 1st defendant by the 5th defendant Municipality, there is no necessity to amend the plaint. The legal representatives of the deceased sole plaintiff are not entitled to take a different stand from the stand that was taken by the deceased sole plaintiff. Necessary documents are filed to substantiate all the contentions of these defendants. The petition is not bona fide. Hence, the petition may be dismissed.

5. At the time of enquiry, no oral evidence was adduced on either side and

no documents were marked on the side of the plaintiffs. However exhibits R1 and R2 were marked on the side of the defendants.

6. On merits, the trial Court had dismissed the petition of the plaintiffs. Therefore, the 3rd plaintiff is before this Court.

7. The learned counsel for the revision petitioner/3rd plaintiff while reiterating the pleaded case of the plaintiffs had inter alia urged as follows: The suit is filed for declaration of title and consequential injunction. During the life time of the deceased sole plaintiff, the 5th defendant Municipality was running a school in the plaint schedule property. However, during the pendency of the suit, the 5th defendant Municipality had delivered possession of the property to the 1st defendant without information and knowledge of the Court. The 3rd plaintiff came to know about the said fact during the visit of the advocate Commissioner.

Hence, it has become necessary for the plaintiffs 2 to 9, who are the legal representatives of the deceased sole plaintiff, to seek amendment of the plaint to enable them to claim the relief of recovery of possession. The suit is originally filed for declaration of title and consequential injunction. Nonetheless, in view of the subsequent event, the plaintiffs were constrained to seek, apart from the relief of declaration of title, the relief of recovery of possession instead of the relief of consequential perpetual injunction, as the 5th defendant Municipality had delivered the property to the 1st defendant during the pendency of the suit. The trial has not yet commenced. The plaintiffs are interested in the property and, therefore, they have no intention to drag on the proceedings.

But for the subsequent event, the plaintiffs would have proceeded with the trial of the suit. The observation of the Court below in its orders that in view of the proviso appended to Order VI Rule 17 of the Code the amendment sought for by the plaintiffs is impermissible and that the plaintiffs are debarred from seeking an amendment after the trial had commenced are incorrect. The trial Court was in error in making observations on the merits of the matter and also on the merits of the contentions raised in the proposed amendment.

Court ought to have seen that the question as to whether the plaintiffs would be entitled to the relief of recovery of possession cannot be prejudged while considering an application, which is filed for seeking amendment of the plaint. The trial Court ought to have permitted the amendment, which is based on events subsequent to the institution of the suit, as allowing of the amendment helps in avoiding multiplicity of proceedings and in setting at rest the dispute between the parties. The trial Court ought to have seen that since the defendants 1 to 4 are denying the title as well as the possession of the plaintiffs from the beginning, no prejudice would be caused to the defendants, if the proposed amendment is allowed.

The trial court ought to have seen that if the amendment as proposed is allowed, no right accrued to the defendants would get defeated in view of their defence. The trial court ought to have seen that the change in the nature of the relief on account of the subsequent events shall not be considered as a change in the nature of the suit. The trial Court ought to have seen that the proposed amendment is necessary for the purpose of determining the real questions in controversy and that the proposed amendment sought for satisfies the required factual and legal requirements.

The trial court ought to have permitted the amendment of the plaint in the larger interests of doing full and complete justice between the parties and as the proposed amendment is very much necessary for a just and fair adjudication of the issues involved in the suit. The court below over looked the aspect that it is categorically pleaded in the plaint that an Elementary school was in existence in the property bearing door nos.24/334 and 335. The trial court ought to have further seen that the Commissioner of the Machilipatnam Municipality had categorically admitted in the letter addressed to the Lok Ayukta of Hyderabad that the elementary school was being run in the property bearing door nos.24/334 and 335 and that the Municipality had paid rent in a sum of Rs.18,000/- to Md.Rasool Baig, that is, the deceased sole plaintiff herein. Therefore, the trial court ought to have seen that even on merits of the matter, the amendment deserves to be allowed. The order impugned is contrary to the settled legal position and is, therefore, liable to be set aside.

8. The learned counsel for the defendants would submit as follows: - As observed by the trial Court, there is a dispute in regard to the property in which the elementary school of the Municipality was located and the door numbers of the said property in which the school was located. Though there is a dispute about the door numbers of the property, as rightly observed by the Court below, the 5th defendant Municipality had failed to produce a correlation statement showing the door numbers of the property involved in the lis but had only filed a memo that the correlation statement, if any, is not available with the Municipality. The Court below had analysed the pleadings in the suit correctly while recording findings in its interlocutory orders, which are impugned in this revision.

The trial Court rightly observed that these defendants are not claiming right in respect of houses bearing door nos., 24/334 and 335 and that the case of the defendants is that the said suit property belonged to late K. Baig and his sister Noorjahan Baig and that on their demise the property devolved upon their legal heirs and that their legal heirs are necessary parties to the suit, but they were not impleaded as parties to this suit. The defence of the defendants 1 to 4 from the beginning is that the 1st plaintiff is having neither title nor possession of the properties, which are being claimed by these defendants.

The trial Court rightly noted that the advocate Commissioner is only appointed to identify the schedule properties and that he had expressed his inability to identify the properties in the absence of correlation statement in regard to the house numbers of the properties being claimed by the parties. The defence of the defendants 1 to 4 is that the amendment is being sought at a belated stage after the plaintiffs have realized that they have no case to succeed in the suit on merits and that the application is filed only to drag on the proceedings. The amendment changes the nature of the suit from one of consequential perpetual injunction to one of recovery of possession. The proposed amendment, if permitted, takes away the rights that had accrued in favour of the defendants 1 to 4 and causes prejudice to them.

Hence, the petition seeking amendment is liable to be dismissed.

plaintiffs filed for amendment of the plaint. Hence, the revision is devoid of merit and is liable to be dismissed.

9. I have given earnest consideration to the facts and the submissions. In view of the facts and the rival contentions, it is profitable to refer to the legal position obtaining. Further, in view of the contention that after commencement of the trial, the amendment cannot be permitted in view of the proviso to Order VI Rule 17 of the Code, it is necessary to first refer to the said proviso, which reads as under:

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial."

In Siginam Uma v. Siginam Rajeswaramma[1], this Court had held that any amendment, which, if permitted, would change the entire cause of action, cannot be allowed as such a course, would cause grave injustice to the opposite party.

I n Rajkumar Gurawara (dead) through L.Rs v. S.Sarwagi and Company Private Limited and Another[2], the Supreme Court having referred to Order VI Rule 17 of the Code had held as follows: "Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant.

It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation." I n VIDYABAI V/s. PADMALATHA[3] the Supreme Court observed that proviso to Order VI Rule 17 of the Code is couched in a mandatory form and, therefore, the court's jurisdiction to allow an application for amendment is taken away there under unless the conditions precedent therefor are satisfied, and that before allowing amendment, the Court must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial and that it is the primary duty of

the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties and only if such a condition is fulfilled, the amendment is to be allowed. Thus, the proviso appended to Order VI Rule 17 of the Code was held to restrict the power of the Court and that it placed an embargo on exercise of its jurisdiction and that unless the jurisdictional fact as envisaged therein is found to exist, the court would have no jurisdiction at all to allow the amendment. I n REVAJEETU BUILDERS V/s NARAYANA SWAMY[4], on an analysis of English and Indian case law, the Supreme Court carved out the following principles which should weigh with the Court while dealing with an application for amendment:

(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

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

The Supreme Court had, however, clarified that the above principles were illustrative and not exhaustive.

I n CHANDER KANTA BANSAL V/s. RAJINDER SINGH[5], the Supreme Court, taking note of the fact that `due diligence' has not been defined in the Code, referred to the dictionary meaning of `diligence' which is to the effect that it means careful and persistent application or effort or a continual effort to accomplish something; care; caution; the attention and care required from a person in a given situation, and observed that`due diligence' means the diligence reasonably expected from and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. Reference was also made to `Words and Phrases' by DrainDyspnea (Permanent Edition 13-A) wherein `due diligence' was defined in law to mean doing everything reasonable and not everything possible. The

Supreme Court, therefore, concluded that `due diligence' would mean reasonable diligence or such diligence as a prudent man would exercise in the conduct of his own affairs.

Further, in Abdul Rehman and Another v. Mohd. Ruldu and Others[6], the Supreme Court, having taken note of the above provision of law had laid down that it is clear that the parties to the suit are permitted to bring forward amendment of the pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them and that the Courts have to be liberal in accepting the same, if such application for amendment is made prior to the commencement of the trial and that if such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that, inspite of due diligence, the party could not have raised the matter before the commencement of the trial. In the above decision the Supreme Court reiterated the following proposition:

"All amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties."

In the above decision the Supreme Court further referred to the ratio in the decision in Pankaja and another v. Yellapa[7], which runs as follows: "If the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed." In Pankaja and another (7th supra), the facts are as under: "As per the case of the plaintiffs, the defendant, in violation of the Court order, had further encroached into the suit property. Therefore, the plaintiffs sought for the amendment of the plaint for seeking the reliefs of declaration of ownership and possession of the said encroached area also. The said application was allowed by the trial Court. However, the Principal Civil Judge rejected the application for amendment on the ground that the application for amendment was filed at a belated stage. The High Court dismissed the revision on the said ground and also on the ground that the amendment introduces a different relief than what was originally asked for. The Supreme Court

permitted the amendment by allowing the appeals. In State of A.P v. M/s.Pioneer Builders[8] it was held as follows: Principles governing amendment of pleadings are well-settled. Order VI Rule 17 C.P.C. deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice.

It is equally well-settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the Court should adopt liberal approach and not a hypertechnical approach particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings (See: L.J. Leach & Co. Ltd. and Anr. v. M/s Jardine Skinner & Co. [AIR 1957 SC 357]; Smt. Ganga Bai v. Vijay Kumar and Ors. [(1974) 2 SCC 303] and B.K. Narayana Pillai v. Parmeswaran Pillai and Anr. [(2000)1 SCC 712]) Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung A.I.R.

1922 PC 249 succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings: "All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit." In Sampath Kumar v. Ayyakannu and another[9] the facts and ratio are as under: "A suit was brought in the year 1988 for perpetual injunction in respect of an agricultural land.

Before the commencement of the trial in the year 1999, the plaintiff had moved the application for amendment of the plaint alleging that during the pendency of the suit, the defendant had forcibly dispossessed the plaintiff in the year 1989. On such averments, the plaintiff had sought for the relief of declaration of title to the suit property and consequential relief of recovery of possession. The defendant had opposed the application of the plaintiff stating that he had perfected title to the property by adverse possession and that the suit is barred by law of limitation and that a valuable right that had accrued to the defendant is being sought to be taken away by way of the proposed amendment.

application for amendment observing that the appropriate course for the plaintiff was to bring a new suit. The High Court maintained the said order. The Supreme Court while allowing the appeal of the plaintiff had referred to its earlier decisions and had finally held as follows:

8. Rukhmabai v. Lala Laxminaraya and Ors.: [1960]2SCR253, 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 shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating 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 proceeded. 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 amendment. In the latter 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.

10. An amendment once incorporated relates back to the date of the suit. 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 Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and Anr. v. Mamtha Shenoy: AIR 2001 SC 2896).

11. 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.

10. Reverting to the instant case facts, what is to be noted is that the sole plaintiff (since died) had originally filed the suit for declaration of title and perpetual injunction in respect of the plaint schedule house property/properties. After his death, the present plaintiffs 2 to 9 were impleaded being his legal representatives.

The case of the plaintiffs, particularly that of the 3rd plaintiff, is that the 5th defendant Municipality used to run a municipal elementary school in the plaint schedule property and that during the pendency of the suit and without information and knowledge of the Court, the 5th defendant Municipality had handed over possession of that property to the 1st defendant and that, therefore, it has become necessary for the plaintiffs 2 to 9 to seek amendment of the plaint to incorporate the necessary averments and also to seek the relief of recovery of possession instead of the relief of consequential injunction as the suit is already filed for declaration of title.

The defendants are contending that the property being claimed by them and the property that is involved in the suit are different properties and that the municipal school is not located in the suit schedule property at the time of auction sale. It is their further contention that the school is in door no.24/336, which is not the plaint schedule property and that when the property was auctioned the municipal elementary school is situated in the house portion bearing no.24/336 and that as such the vendor of the 1st defendant had purchased in a Court auction the houses bearing nos.24/336 and 337 and that since the municipal school is in door no.

purchased houses bearing door bos.24/336 and 337 and that at the time of vacating the property, the property was delivered to the 1st defendant by the Municipality and that no documentary evidence is produced by the plaintiffs 2 to 9 to show that the elementary school was ever located in the suit schedule property.

11. Be that as it may, as rightly and fairly conceded, the question whether or not the plaintiffs would be entitled to the relief of recovery of possession and the other allied questions cannot be prejudged while considering an application, which is filed for seeking amendment of the plaint. The amendment is being sought based on an event subsequent to the institution of the suit. Even assuming for a moment that the plaintiffs ought to have sought the amendment of the plaint much earlier and not belatedly, what is to be noted is that the proposed amendment is being sought on the basis of events, which had occasioned subsequent to the institution of the suit.

Therefore, according to the plaintiffs 2 to 9, the 5th defendant Municipality is responsible for the events by its conduct in delivering possession of the property to the 1st defendant without information and knowledge of the Court and that only in view of the said act of the 5th defendant, the plaintiffs 2 to 9 have no other option except to seek the relief of recovery of possession of the suit schedule property. It is also pertinent to note that the plaintiffs 2 to 9 are not precluded from bringing a fresh suit for recovery of the property which was delivered by the 5th defendant to the 1st defendant based on the subsequent cause of action.

Even as per the precedential guidance of the Supreme Court an amendment can be permitted if it is intended to determine the real question in controversy and that all amendments, which are necessary for the purpose of determining real questions of controversy between the parties, shall be allowed if such amendments sought for do not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of the suit. The power of amendment should be exercised in the larger interests of doing full and complete justice between the parties and that all amendments, which are necessary for the purpose of determining the real question in controversy, should be allowed.

Further, if the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. The Court has also to consider whether the proposed amendment is intended to determine the real dispute between the parties. The law is well settled that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. If the amendment as proposed is allowed, no right accrued to the defendants 1 to 4 would get defeated as the said defendants are denying the possession of the plaintiffs and are contending that they are in possession of the property which was earlier in the occupation of the Municipal School.

Further, as the refusal of the request seeking amendment does not preclude the plaintiffs from instituting a fresh suit, the refusal of the request leads to multiplicity of the litigation. In the well-considered view of this Court, if the amendment is permitted, the amendment which is based on events subsequent to the institution of the suit, though sought belatedly also helps in avoiding the multiplicity of the proceedings and in setting at rest the dispute between the parties. Therefore, for all the aforesaid reasons, granting of amendment of the plaint really sub-serves the ultimate cause of justice and avoids further litigation and therefore, the amendment sought for by the plaintiffs deserves to be allowed.

12. On the aspect that the application for amendment is debarred in view of the proviso to Order VI Rule 17, it is necessary to refer to the decision in Usha Devi v. Rijwan Ahamd[10]. In the said decision, a contention was advanced that the trial of the suit would commence with the settlement of the issues; and, in support of the said contention that the framing of issues marked the commencement of trial of the suit reliance was placed on the decision in Ajendraprasadji N.Pandey v. Swami Keshavprakeshdasji [(2006) 12 SCC1]. However, while meeting the said contention, the attention of the Supreme Court was invited to the decision of the Supreme Court in Baldev Singh v. Manohar Singh [(2006)6 SCC 498] wherein it was held as follows:

"Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and found that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments.

As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings."

Further, the Supreme Court having referred to a three-judge Bench decision in Sajjan Kumar v. Ram Kishan[11], had held as follows: "Having heard the learned Counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 Code of Civil Proccedure would not have been strictly applicable.

It is true that the Plaintiff-Appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff-appellant succeeding in the suit."

Thus in Usha Devi's case, the Supreme Court, keeping in view of the decision in Sajjan Kumar (supra), held as follows: "We may clarify here that in this order we do not venture to make any pronouncement on the larger issue as to the stage that would mark the commencement of trial of a suit but we simply find that the appeal in hand is closer on facts to the decision in Sajjan Kumar and following that decision the prayer for amendment in the present appeal should also be allowed."

In the instant case on hand also, the trial has not concluded and the evidence on the side of the plaintiffs is not yet closed. The matter has not

reached the stage of arguments. Therefore, in the well considered view of this Court, the facts of present case are akin to the facts of the case in Usha Devi (supra) and Sajjan Kumar (supra). This Court is of the considered view that it would be a sound exercise of discretion to permit amendment of the plaint and that on the ground of mere delay amendment cannot be refused. Since the dominant purpose of the Rule is to minimize the litigation and to enable the parties to have all the issues relating to one dispute resolved in one suit, the amendment sought for by the plaintiffs can be allowed, in the considered view of this Court. Therefore, in the well considered view of this Court, the contention that the proviso to Order VI Rule 17 of the Code debars the plaintiffs from seeking the amendment is not well founded. As per the precedential guidance, the well settled rule of practice is not to dismiss the suit automatically but, to allow the plaintiffs to make necessary amendment if the plaintiffs seek to do so

13. Viewed thus, this Court finds that the Court below is not justified in not permitting the plaintiffs to amend the plaint and that the order impugned warrants interference.

14.

In the result, the Civil Revision Petition is allowed and the order impugned is set aside. As a sequel, IA. no. 218 of 2015 in OS.no.243 of 2004 is allowed. The trial Court shall now permit the plaintiffs 2 to 9 to carry out the amendment of the plaint as prayed for and file a neat copy of the plaint. On filing of such neat copy of the plaint, the trial Court shall give the defendants 1 to 4 an opportunity to file additional written statement to answer the averments in the amended plaint.

There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this revision shall stand closed.

____________________ M. SEETHARAMA MURTI, J 1st June, 2016 Vjl

[1] 2014 (6) ALT 810 [2] (2008) 1 Supreme Court Cases 364 [3] (2009) 2 Supreme Court Cases 409 [4] (2009) 10 SCC 84 [5] (2008) 5 SCC 117 [6] 2013(1)ALD 1(SC) [7] AIR 2004 SC 4102 [8] 2007(1) ALT 43 (SC) [9] (2002) 7 SCC 559 [10] (2008) 3 Supreme Court Cases 717 [11] (2005) 13 SCC 89