NARAINI DEVI Vs. GOPAL LAL

JUDGEMENT

(1.) IN the year 1973 the plaintiff petitioner instituted a suit for pre -emption and injunction. The relief (rayed for was that the plaintiff's suit for per -emption for the propery described in the plaint with red lines and marked as ABCD be decreed and the defendant No. 2 be directed to take the sale price and deliver possession over the property Another prayer was that during the pendency of suit the defendant No. 2 (purchaser) be restrained from making the constructions on the property marked as ABCD and DCEFGH. Alongwith the plaint an application for grant of temporary injunction was moved but this was dismissed. Now by way of amendment, the plaintiff wants to make several additions in the body of the plaint and also in the relief clause. The relief sought to be is that a declaration be made that ABCD and DCEFGH is part of a joint chowk of the petitioner and respondent No. 3 and the construction which had been made on the joint chowk -be demolished and the prayer for per -emption has been placed at No. 3 and that too in the alternate.

(2.) THIS amendment has been refused by the trial court on the ground that it will change the nature of the case which would affect the rights of the defendant. Against this order dated 8th August, 1986 the petitioner in July, 1987 and even though the contesting respondent was served .. was preferred this revision petition in 1987 the service of proforma respondent could not be affected and ultimately their names were deleted from the array of non -petitioner by order dated 13th Feb., 1995. Now it has come up for disposal. I am told that the proceedings in the suit are denied and no witness has been examined by the plaintiff in the trial court.

(3.) ON behalf of the petitioner it has been contended that all amendments which are necessary for deciding the real controversy between the parties should be allowed irrespective of delay in the moving of application. According to him amendments can be allowed even at the appellate stage and if the necessary material on basis of which the amendment is sought, is already on record ,the same should be permitted. Reliance hasbeen placed on Ishwar das v. State of M.P. and Ors. AIR 1979 SC 551. It is argued that if the necessary material on which the plea arising from the amendment may be decided is already there then the amendment in the plaint may be granted. In Firm Sriniwas Ram Kumar v. Mahabir Prasad and Ors. : [1951]2SCR277 the plaintiff had been permitted to rely upon different rights alternatively and it was hali that he can make two or more sets of allegations and claim relief in the alternative. In Parigonda Honganda Potil v. Kalgonda Shodgonda Patil and Ors. : [1957]1SCR595 it has been held that an amendment ought to be allowed which satisfies two conditions (a) 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. When the amendment was of purely legal nature and the party was not taking steps due to the negligence of the counsel, even after expiry of period of limitation, amendment was allowed in Kareem Bux and.Anr. v. Board of muslim wakis Raj and Ors. 1989 RLR (2) 226. In Jai Ram Manohar Lal v. National Building Material Supply, Gurgao : [1970]1SCR22 it was observed the rules of procedure are intended to be handmaid to the handmaid to the administration of justice and party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. If amendment can be allowed without in justice to the other side then it should not be refused on technical grounds. In Haridas Aildas Thadant v. Godrej Rustom Kormani : AIR1983SC319 it was held that the court should be liberal in granting prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side.