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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.       7043       OF     2012   (Arising out of SLP (C) No. 6324 of 2008

Abdul Rehman & Anr.                        ...  Appellant (s)

Versus

Mohd. Ruldu & Ors.                                 . ...  Respondent(s)

J     U     D     G     M     E     N     T      

P.     Sathasivam,     J.   

1) Leave granted.

2) This appeal is filed against the judgment and order dated  

13.11.2007 passed by the High Court of Punjab & Haryana at  

Chandigarh in Civil Revision No. 4486 of 2007 whereby the  

High Court dismissed the revision filed by the appellants  

herein and confirmed the order dated 06.06.2007 passed by  

the Civil Judge (Jr. Division) Malerkotla in an application filed  

by the appellants herein for amendment of the plaint.   

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3)    Brief Facts:

(a) Originally one Jhandu, resident of Village Haider Nagar,  

was the owner and in possession of land admeasuring 53  

bighas 11 biswas at village Haider Nagar, Tehsil Malerkotla  

and 33 bighas 15 biswas situated at Village Binjoli Kalan,  

Tehsil Malerkotla.  Jhandu died leaving behind Khuda Bux as  

his son and Aishan and Kaki as his daughters.  The mutation  

of inheritance was sanctioned in favour of Khuda Bux alone  

being his son.

(b) Feeling aggrieved by the aforesaid mutation, Kaki and  

Aishan (daughters of Jhandu) filed Suit No. 280/162 against  

Khuda Bux claiming 9/36 share each in the said lands before  

the subordinate Judge, Ist Class, Sangrur, Camp at  

Malerkotla.  By order dated 20.12.1971, the sub-Judge  

dismissed the said suit.

(c) Challenging the said judgment, Kaki and Aishan filed an  

appeal being Civil Appeal No. 21 of 1972 before the District  

Judge, Sangrur.  Vide order dated 04.07.1972 passed by  

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the District Judge, the said appeal was dismissed as  

withdrawn in terms of the compromise arrived at between the  

parties. According to the terms of the compromise, it was  

agreed that Khuda Bux shall be entitled to retain possession  

of land admeasuring 34 Bighas 13 Biswas in village Haider  

Nagar with the condition that he and his wife Ramzanan will  

receive the produce of the suit land during their life time but  

they will have no right to alienate it by way of sale, mortgage  

or any other form.  After the death of Khuda Bux and his wife,  

the said land would be divided among the four sons of Khuda  

Bux in equal shares.  The remaining land owned by Khuda  

Bux in Binjoli and Haider Nagar was partitioned by him  

amongst his four sons in the manner set out in the  

compromise deed.  

(d) On 12.09.1986, Khuda Bux executed a sale deed  

transferring ownership and possession of land admeasuring  

17 Bighas and 10 biswas in village Haider Nagar in favour of  

the appellants herein.  Challenging the said sale deed, the  

other two sons and two daughters of Khuda Bux filed a suit  

before the sub-Judge, Malerkotla.  The sub-Judge dismissed  

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the said suit and set aside the sale deed dated 12.09.1986.  

The said order was further confirmed in appeal.

(e) After the death of Khuda Bux, Ramzanan - his wife filed  

Suit No. 308 of 2002 before the Civil Judge, Malerkotla for  

declaration and permanent prohibitory injunction against all  

her children.  In the above suit, on 24.12.2002, she also filed  

an application under Order XXXIX Rules 1 & 2 of the Code of  

Civil Procedure, 1908 (hereinafter referred to as “the Code”)  

seeking an injunction against the appellants herein from  

interfering with her possession.  The said application was  

dismissed.  Against the dismissal of the said application, she  

filed an appeal being C.M.A. No. 7 of 2003 before the  

Additional District Judge, Sangrur.  By order dated  

06.08.2003, the Additional District Judge dismissed the same.  

(f) Vide registered sale deed Nos. 1810 and 1811 dated  

25.08.2003 Ramzanan (wife of Khuda Bux) and Bashiran and  

Rashidan (daughters of Khuda Bux) sold some lands to  

respondent No.1 to 3  herein and tried to forcibly dispossess  

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the appellants and respondent No.4 herein from the lands  

under their possession.   

g) The appellants filed Suit No. 320 of 2003 in the Court of  

Civil Judge (Jr. Division) Malerkotla, for permanent  

prohibitory injunction restraining respondent Nos. 1-3 herein  

from forcibly and illegally dispossessing the appellants from  

the land in dispute.   

(h) In the said suit, the appellants herein filed an application  

on 17.09.2004 under Order VI Rule 17 read with Section 151  

of the Code for amendment of the plaint.  The trial Court, by  

order dated 06.06.2007, dismissed the said application.   

(i) Being aggrieved by the said order, the appellants filed  

Civil Revision No. 4486 of 2007 before the High Court of  

Punjab & Haryana.  By impugned judgment dated 13.11.2007,  

the High Court dismissed the said revision.   

(j) Aggrieved by the said judgment, the appellants have filed  

this appeal by way of special leave.    

4) Heard Ms. Manmeet Arora, learned counsel for the  

appellants.  None appeared for the respondents.         

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5) The only point for consideration in this appeal is whether  

the appellants herein have made out a case for amendment of  

the plaint in terms of Order VI Rule 17 of the Code.   

6) Before considering the factual details and the materials  

placed by the appellants praying for amendment of their  

plaint, it is useful to refer Order VI Rule 17 which is as under:-

“17. Amendment of pleadings.—The Court may at any  stage of the proceedings allow either party to alter or amend  his pleadings in such 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:

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

7) It is clear that parties to the suit are permitted to bring  

forward amendment of their pleadings at any stage of the  

proceeding for the purpose of determining the real question in  

controversy between them.  The Courts have to be liberal in  

accepting the same, if the same is made prior to the  

commencement of the trial.  If such application is made after  

the commencement of the trial, in that event, the Court has to  

arrive at a conclusion that in spite of due diligence, the party  

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could not have raised the matter before the commencement of  

trial.   

8) The original provision was deleted by Amendment Act 46  

of 1999, however, it has again been restored by Amendment  

Act 22 of 2002 but with an added proviso to prevent  

application for amendment being allowed after the trial has  

commenced, unless the Court comes to the conclusion that in  

spite of due diligence, the party could not have raised the  

matter before the commencement of trial.  The above proviso,  

to some extent, curtails absolute discretion to allow  

amendment at any stage.  At present, if application is filed  

after commencement of trial, it has to be shown that in spite  

of due diligence, it could not have been sought earlier.   The  

object of the rule is that Courts should try the merits of the  

case that come before them and should, consequently, allow  

all amendments that may be necessary for determining the  

real question in controversy between the parties provided it  

does not cause injustice or prejudice to the other side.  This  

Court, in a series of decisions has held that the power to allow  

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the amendment is wide and can be exercised at any stage of  

the proceeding in the interest of justice.  The main purpose of  

allowing the amendment is to minimize the litigation and the  

plea that the relief sought by way of amendment was barred  

by time is to be considered in the light of the facts and  

circumstances of each case.  The above principles have been  

reiterated by this Court in J. Samuel and Others vs. Gattu  

Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar  

Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012)  

5 SCC 337.  Keeping the above principles in mind, let us  

consider whether the appellants have made out a case for  

amendment.

9) It is true that originally the appellants have approached  

the trial Court with a prayer for permanent prohibitory  

injunction restraining respondent Nos. 1-3 herein from forcible  

and illegal dispossession of the appellants herein from the  

land in dispute.  Respondent Nos. 1-3 herein (Defendant Nos.  

1-3 therein) filed written statement wherein they specifically  

alleged that they have stepped into the shoes of Ramzanan  

and Smt. Bashiran and Rashidan on the basis of the sale  

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deeds dated 25.08.2003.  It is the claim of the appellants that  

the above said Ramzanan and Smt. Bashiran and Rashidan  

have no concern with the ownership of the land in dispute and  

no right to alienate the suit land to the defendants or anybody  

else. In view of the stand taken by the defendants in their  

written statement, in the application filed under Order VI Rule  

17 of the Code, the appellants have specifically raised that the  

alleged sale deed Nos. 1810 and 1811 dated 25.08.2003 in  

favour of defendant Nos. 1-3 executed by Ramzanan and  

Bashiran and Rashidan are liable to be set aside and have no  

effect on the rights of the plaintiffs and Saifur-Rehman qua the  

suit land and the mutation Nos. 781 and 782 sanctioned on  

the basis of above noted sale deeds dated 25.08.2003 are also  

liable to be set aside.  In view of the claim of the appellants, we  

verified the necessary averments in the written statement of  

Defendant Nos. 1 and 3 and we agree with the stand of the  

appellants.

10) Next, we have to see whether the proposed amendments  

would alter the claim/cause of action of the plaintiffs.  In view  

of the same, we verified the averments in the un-amended  

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plaint.  As rightly pointed out by Ms. Manmeet Arora, learned  

counsel for the appellants that the entire factual matrix for the  

relief sought for under the proposed amendment had already  

been set out in the un-amended plaint.  We are satisfied that  

the challenge to the voidness of those sale deeds was implicit  

in the factual matrix set out in the un-amended plaint and,  

therefore, the relief of cancellation of sale deeds as sought by  

amendment does not change the nature of the suit as alleged.  

It is settled law that if necessary factual basis for amendment  

is already contained in the plaint, the relief sought on the said  

basis would not change the nature of the suit.  In view of the  

same, the contrary view expressed by the trial Court and High  

Court cannot be sustained.  It is not in dispute that the relief  

sought by way of amendment by the appellants could also be  

claimed by them by way of a separate suit on the date of filing  

of the application.  Considering the date of the sale deeds and  

the date on which the application was filed for amendment of  

the plaint, we are satisfied that the reliefs claimed are not  

barred in law and no prejudice should have been caused to  

respondent Nos. 1-3 (defendant Nos. 1-3 therein) if the  

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amendments were allowed and would in fact avoid multiciplity  

of litigation.          

11) Learned counsel for the appellants has also brought to  

our notice that the amendments were necessitated due to the  

observations made by the High Court in its earlier order dated  

19.04.2007 in C.R. No. 3361 of 2007 to the effect that the  

appellants’  application for ad-interim injunction without  

seeking cancellation of the sale deeds is not maintainable.  

This aspect has not been noticed by the trial Court as well as  

the High Court while considering the application filed under  

Order VI Rule 17 of the Code.      

12) It is also brought to our notice that respondent Nos. 2  

and 3 herein –  transferees under the sale deed, are the  

nephews of the appellants herein and the transferors and the  

purchase of the suit land by them is void to their knowledge as  

they were equally bound by the judgment dated 20.12.1971  

and compromise deed dated 04.07.1972 declaring that under  

the applicable customary law of inheritance to the parties  

therein, widows and daughters have no right of inheritance in  

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the presence of the sons.  It is the claim of the appellants that  

in view of the same, respondents –  transferees are not bona  

fide purchasers of the suit land.  Learned counsel for the  

appellants again brought to our notice that these facts were  

specifically stated in the un-amended plaint and, therefore,  

amendment seeking incorporation of relief of declaration that  

the sale deeds are void does not change the nature of the suit.  

Because of those allegations in the un-amended plaint, the  

same was denied by the defendants in their written statement  

and we are satisfied that the necessary factual matrix as  

regards the relief of cancellation was already on record and the  

same was an issue arising between the parties.     

13) In view of the stand taken by the respondent Nos. 1-3  

herein/Defendant Nos. 1-3 in their written statement and the  

observation of the High Court in the application filed for  

injunction, we are of the view that the proposed amendment to  

include a relief of declaration of title, in addition to the  

permanent injunction, is to protect their interest and not to  

change the basic nature of the suit as alleged.   

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14)  In Pankaja & Anr. vs. Yellapa (Dead) By Lrs. & Ors.  

AIR 2004 SC 4102 = (2004) 6 SCC 415, this Court held that if  

the granting of an amendment really subserves the ultimate  

cause of justice and avoids further litigation, the same should  

be allowed.  In the same decision, it was further held that an  

amendment seeking declaration of title shall not introduce a  

different relief when the necessary factual basis had already  

been laid down in the plaint in regard to the title.

15) We reiterate that all amendments which are necessary for  

the purpose of determining the real questions in 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.

16) In the light of various principles which we have discussed  

and the factual matrix as demonstrated by learned counsel for  

the appellants, we are satisfied that the appellants have made  

out a case for amendment and by allowing the same, the  

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respondents herein (Defendant Nos. 1-3) are in no way  

prejudiced and they are also entitled to file additional written  

statement if they so desire.  Accordingly, the order of the trial  

court dated 06.06.2007 dismissing the application for  

amendment of plaint in Suit No. 320 of 2003 as well as the  

High Court in Civil Revision No. 4486 of 2007 dated  

13.11.2007 are set aside.  The application for amendment is  

allowed.  Since the suit is of the year 2003, we direct the trial  

Court to dispose of the same within a period of six months  

from the date of receipt of copy of the judgment after affording  

opportunity to all the parties concerned.  The appeal is  

allowed.  No order as to costs.  

...…………….…………………………J.            (P. SATHASIVAM)                                  

 .…....…………………………………J.    (RANJAN GOGOI)  

NEW DELHI; SEPTEMBER 27, 2012.  

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