AMAR SINGH CHETRI Vs. BIJAY CHANDRA MODAK

JUDGEMENT

(1.) The revision petitioner is the plaintiff. He filed a suit for declaration of title and for permanent prohibitory injunction restraining the defendants from interfering with his peaceful possession. An order of injunction was passed in his favour and that was vacated after hearing the defendants. This was on 19-9-85. The plaintiff filed an application to withdraw the suit with permission to file a fresh suit since according to him the defendants after the injunction was vacated, trespassed into the property and reduced into his possession on 20-9-85. The Court dismissed the application. Thereafter the plaintiff filed an application to amend the plaint seeking to substitute the prayer for decree for permanent injunction by a prayer for recovery of possession. The lower Court dismissed the application on the ground that the plaintiff was out of possession on the date of the suit and should have sued for possession and not injunction in the original plaint, that the question of dispossession during the pendency does not arise and the amendment, if allowed, would convert it into a new suit. That would prejudice the defendants. This order is now challenged.

(2.) Rule 17 of Order 6, Civil Procedure Code empowers the Court, at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The Rule also indicates that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. This provision has received a liberal interpretation at the hands of the Supreme Court and the various High Courts of the country. Two such earlier decisions of the Supreme Court are in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363, and L. J. Leach and Co., Ltd. v. M/s. Jardine Skinner and Co., AIR 1957 SC 357 : (1957 All LJ 794). Undoubtedly the power conferred under Order 6, Rule 17, Civil Procedure Code is a discretionary power of wide amplitude. It cannot be encased between the strait-jacket of an inflexible formula. The Supreme Court in the former case quoted with approval the following passage in Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644 at p. 655, when he said at pp. 649-650.

(3.) Ordinarily, in dealing with an application to amend the plaint, the court would ask questions like - whether the application would alter the nature and character of the suit so fundamentally as to cause irreparable injury to the opposite party, whether the amendment is necessary for the purpose of determining the real questions in controversy between the parties and whether the proposal of the amendment is devoid of bona fides.