Haja Alias Hajira Bano v. Gh Mohammad Ahangar and Ors

Order impugned be upheld.

10.

The learned trial Court, while rejecting the application moved by the Plaintiff seeking amendment in the Plaint, observed that the Applicant was already having the knowledge of the execution of the sale deed before the institution of the Suit and that the Plaintiff had woken up from a deep slumber after two years. It was further observed that while filing the Suit, the whole of the claim, which the Plaintiff is entitled to make in respect of the cause of action, is to be made and if the Plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished as per the provisions of the Order II Rule 2 of the Code of Civil Procedure

(CPC). It was further observed by the trial Court that with the proposed amendment, the Plaintiff intended to set up altogether a new case and, if she

is allowed to amend the Plaint, it will cause an irreparable prejudice to the Non-Applicants, which cannot be compensated by way of damages.

11.

Heard learned Counsel for the parties, perused the record and considered the matter.

12.

Order II Rule 2 of the Code of Civil Procedure, being relevant in view of the nature of dispute raised in this Petition, reads as under:

"Suit to include the whole claim: (1) Every Suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the Suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim: Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs: A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation: For the purposes of this rule, an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."

13.

In the present case, the principal argument of the learned Counsel appearing on behalf of the Respondent is that the amendment application has been rightly rejected by the Court below applying the principle of Order II Rule 2 of the Code of Civil Procedure. The expressions "omits to sue" and "intentionally relinquish any portion of his claim" give an indication as to the intention of the Legislature in framing the said Rule. The term "sue" can mean both the filing of the Suit and prosecuting the Suit to its culmination, depending on the context of the provision. In this case, the Legislature thought it fit to debar a Plaintiff from suing afterwards for any relief which he/ she has omitted, without the leave of the Court or from suing in respect of any portion of his claim which he intentionally relinquishes.

14.

Having regard to the mandate of Order II Rule 2 of the Code of Civil Procedure which, as noticed hereinabove, provides that every Suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action, I am of the view that if the two Suits and the relief claimed therein are based on the same cause of action, then the subsequent Suit will become barred under Order II Rule 2 of the Code of Civil Procedure, however, I do not find any merit in the contention raised on behalf of the Respondent herein that the amendment application was rightly rejected by applying the bar contained under Order II Rule 2 of the Code, which cannot be applied to an amendment which is sought on an existing Suit.

15.

The Hon'ble Apex Court, in a case titled 'Life Insurance Corporation of India v. Sanjeev Builders Private Limited & Anr.', reported as 2022 AIR (SC) 4256, has considered this aspect of the matter and has, in Paragraph No.70, laid down the following law:

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed:

i) if the amendment is required for effective and proper adjudication of the controversy between the parties; &

ii) to avoid multiplicity of proceedings, provided:

(a) the amendment does not result in injustice to the other side;

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side; and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless:

i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration;

ii) the amendment changes the nature of the suit;

iii) the prayer for amendment is malafide; and

iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hyper-technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between

the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)".

16.

Given the above legal position enunciated by the Hon'ble Apex Court on the subject, the learned Trial Court, thus, seems to have misdirected itself while rejecting the application moved by the Petitioner/ Plaintiff for seeking amendment of the Plaint, under the notion that no such amendment is permissible in terms of Order II Rule 2 of the Code of Civil Procedure. Where the amendment is sought before commencement of the trial, which is the position in the present case as well, the Court is required to be liberal in its approach. The Court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up by amendment, as such, where the amendment does not result in any irreparable prejudice to the opposite party or divests the opposite party of an advantage which it had secured as a result of admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the Court to effectively adjudicate on the main issue in controversy between the parties, the amendment is to be allowed. The Petitioner, as Plaintiff before the Court below, had sought amendment with regard to mentioning of a sale deed with regard to a portion of the Suit property and, therefore, it was necessary for the Trial Court, for effective adjudication of the controversy between the parties, to allow the amendment sought by the Petitioner/ Plaintiff.

17.

Having regard to the aforesaid discussion and observations made hereinabove, the impugned Order dated 4th of June, 2018 passed by the Trial Court is set aside and the application moved by the Petitioner/ Plaintiff before the Court below for amendment of the Plaint is allowed. The learned Trial Court is directed to take on record the Amended Plaint for further proceedings in the case as per law.

18.

Petition is, thus, disposed of on the above terms, along with any connected CM therewith.

19.

Record of the Court below be sent down, along with a copy of this Judgment, for information and compliance.

(M. A. CHOWDHARY) JUDGE

SRINAGAR December 29th, 2023 "TAHIR" i. Whether the Judgment is speaking?

Yes. ii. Whether the Judgment is reporting?

Yes.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved On: 15th of December, 2023 Pronounced On: 29th of December, 2023. Haja @ Hajira Bano, Age: 47 Years D/O Abdul Ahad Ahangar R/O Nowgam, Chanapora, Srinagar. … Petitioner Through: - Mr H. Suhail Ishtiaq, Advocate. V/S 1. Gh. Mohammad Ahangar S/O Abdul Ahad Ahangar R/O Nowgam, Tehsil Chanapora, Srinagar (Dead) Through his LRs: All Residents of Nowgam, Srinagar. I. Yasmeena W/O Late Gh. Mohammad Ahangar II. Adil Ahmad Ahangar S/O Gh. Mohammad Ahangar III. Nusrat D/O Gh. Mohammad Ahangar IV. Ulfat D/O Gh. Mohammad Ahangar 2. Tariq Ahmad Sheikh S/O Haji Ab. Aziz Sheikh R/O Nowgam, Tehsil Chanapora, Srinagar … Contesting Respondents 3. Rehti W/O Habibullah Bhat R/O Nowgam, Srinagar 4. Raja W/O Mohammad Akbar Tantray R/o Medur, Tral 5. Mahtab W/O Bashir Ahmad Ahangar R/O Hyderpora, Srinagar 6. Wazira W/O Mushtaq Ahmad Najar R/O Nagam, Chadoora 7. Bashir Ahmad Ahangar 8. Mohammad Shafi 9. Abdul Majeed 10. Aijaz Ahmad 7 to 10 Sons of Abdul Gafar Ahangar Residents of Khanda, Chadoora. 11. Naseema W/O Gh. Mohammad Najar R/O Pulwama. … Proforma Respondents Through: - Mr Aqib Khan, Advocate. CORAM: HON'BLE MR JUSTICE M. A. CHOWDHARY, JUDGE (JUDGMENT) 01. Through the medium of this Petition, initially registered as OWP No. 1293/2018 and later treated as Petition under Article 227 of the Constitution of India and, accordingly, re-diarized as CM (M) No. 111/2022 vide Order dated 6th of May, 2022, the Petitioner has challenged the Order dated 4th of June, 2018 passed by the Court of learned Sub Judge, Chadoora, whereby in a Suit titled 'Haja Alias Hajira Bano v. Gh. Mohammad Ahangar & Ors.', an application moved in terms of Order VI Rule 17 of the Code of Civil Procedure read with Order I Rule 10 (4) of the Code of Civil Procedure (CPC) for grant of leave to amend the Suit was rejected, holding that the Plaintiff through the medium of that application wanted to make such changes which shall change the nature of the Suit and also that the reason seeking amendment was within the knowledge of the Plaintiff at the time of the filing of the Suit, as such, the application is barred in terms of Order II Rule 2 of the Code of Civil Procedure (CPC). 02. The Petitioner had filed a Civil Suit for declaration, partition, separate possession and injunction before the Court below, asserting therein that the father of the Plaintiff and Defendant Nos. 1 to 4, namely, Abdul Ahad Ahangar died in the year 2010, leaving behind the parties to the Suit as his legal heirs, as such, the estate left behind by him vested and devolved upon the parties to the Suit in terms of the Shariat Act; that the father of the Plaintiff and Defendant Nos. 1 to 4 and grandfather of Defendant Nos. 5 to 10 was the owner, possessor and title holder of land measuring 07 Kanals and 05 Marlas comprising of Survey Nos. 389, 390 and 421 of village Gund, Checkpora, Tehsil Baghat-i-Kanipora, District Budgam and land measuring 03 Kanals and 08 Marlas comprising of Survey Nos. 1092, 1180 and 1003, along with residential house thereon situate at village Nowgam, Tehsil Chanapora, District Srinagar; that the parties to the Suit were claimed to be the only legal heirs left by the deceased estate holder, Abdul Ahad Ahanger and that after his death, the parties to the Suit became co- sharers, co-owners and co-possessors of the Suit property and are entitled to get their respective shares in terms of law of succession, as envisaged under the Shariat Act, the parties being Muslim by faith and religion and being governed by the Shariat Act in the matter of inheritance, etc.; that the estate mentioned above, situated at Nowgam, was still in the name of the deceased Ahad Ahangar, however, it was alleged that the Defendant No.1, by greasing the palms of the revenue officials, had got the Mutation attested in his name with respect to property situated at Village Gund, Checkpora illegally, in violation of the provisions of Shariat Act and of other r