Procedural Defect Pointed Out By Opposite Party Does Not Create Absolute Bar Against Rectification By Amendment: J&K&L High Court

The Court held that the mere fact that a procedural defect has been pointed out by the opposite party does not, in itself, create an absolute bar against its rectification, provided the amendment is otherwise permissible in law and does not occasion such prejudice as cannot be compensated or addressed in the proceedings.

The Court was hearing a petition filed under Article 227 of the Constitution of India by the petitioners, who were defendants in a civil suit, seeking quashing of orders passed by the Trial Court permitting impleadment of additional defendants under Order I Rule 8 CPC, amendment of the cause title and the relief clause, and issuance of a direction for maintaining status quo.

The petition was heard by Justice Sanjay Parihar, who observed,

“The provisions of the Code of Civil Procedure relating to impleadment of parties and amendment of pleadings are intended to facilitate effective and complete adjudication of the real controversy between the parties. The mere fact that a procedural defect has been pointed out by the opposite party does not, in itself, create an absolute bar against its rectification, provided the amendment is otherwise permissible in law and does not occasion such prejudice as cannot be compensated or addressed in the proceedings.”

Background

The plaintiff/respondent instituted a suit for declaration and injunction against five defendants, asserting that he was a resident of village Chutuk and, as such, entitled to a share in the village land comprising several survey numbers. According to the plaintiff, the said land stood mutated in favour of the villagers of village Chutuk, who had nominated defendants 1 to 5 as members of a committee entrusted with the distribution of the land amongst the eligible villagers.

Upon service of summons, the defendants entered appearance and filed their written statement, contesting the claim of the plaintiff primarily on the ground that he was not a resident of village Chutuk but belonged to another village and, therefore, had no entitlement to any share in the suit land.

The defendants also raised preliminary objections regarding the maintainability of the suit, alleging that the same was bad for non-joinder of necessary parties, that the plaintiff had failed to obtain leave of the Court to institute the suit in a representative capacity, and that the plaintiff disclosed no cause of action. It was further alleged that the plaintiff had suppressed material facts concerning his actual place of residence.

During the pendency of the suit, the Trial Court directed the parties to maintain status quo with respect to the suit property. Subsequently, the plaintiff moved an application under Order I Rule 8 CPC, stating that although the suit had initially been instituted against the five persons allegedly nominated as members of the Committee, the relief claimed was directed against the distribution of land being undertaken on behalf of the villagers at large.

The Trial Court allowed the application, observing that the villagers of village Chutuk had a common interest in the suit property and that defendants 1 to 5 had been arrayed in the suit in their capacity as persons undertaking the distribution of the land on behalf of the villagers. The villagers of village Chutuk were permitted to be brought on record, and the plaintiff was granted permission to amend the cause title of the suit.

Thereafter, the plaintiff moved another application seeking amendment of the plaint on the ground that although the cause title had been amended, the relief clause had not been suitably modified so as to extend the relief claimed against the newly impleaded defendants.

The Trial Court allowed the application to the limited extent of incorporating the relief against the newly added defendants. Subsequently, when the newly impleaded defendants sought an opportunity to file their written statement, the Trial Court afforded them an opportunity to contest the amended pleadings.

The counsel for the petitioners argued that the procedure adopted by the Trial Court was legally unsustainable. It was submitted that once the defendants had specifically raised objections regarding non-joinder of necessary parties and the failure of the plaintiff to institute the suit in a representative capacity, the plaintiff could not have been permitted to cure such fundamental defects by subsequently seeking amendment of the pleadings.

Court's Observation

The Court observed that the controversy involved in the petition arose out of the distribution of more than 300 kanals of non-cultivable land situated in village Chutuk. It noted that the essential controversy in the suit was whether the plaintiff was a resident of village Chutuk and, if so, whether he was entitled to be included in the list of persons amongst whom the village land was being distributed.

The Court held that the suit, as originally instituted, was not necessarily required to be filed in a representative capacity under Order I Rule 8 CPC. The Court observed that the distinction between a suit instituted by a person for enforcement of his individual right and a suit instituted by or against persons in a representative capacity is material.

The Court held,

“Order I Rule 8 CPC is attracted where numerous persons have the same interest in a suit and one or more of such persons seek to sue or defend on behalf of, or for the benefit of, all persons so interested, subject to the conditions prescribed therein. In the present case, the plaintiff has not sought any relief on behalf of the villagers collectively.”

The Court noted that the plaintiff's claim was confined to the enforcement of his own asserted right to be included amongst the beneficiaries of the village land.

The Court further noted that the amendments permitted by the Trial Court had neither introduced an altogether new cause of action nor fundamentally altered the character of the suit. The subject matter continued to be the plaintiff's asserted entitlement to inclusion amongst the beneficiaries of the village land. The addition of defendants 6 to 13 and the consequential extension of the relief clause against them were incidental to the existing controversy.

The Court noted that the defendants had not been deprived of their right to contest the amended pleadings, as the Trial Court had afforded them an opportunity to file their written statement.

The Court further held that the contention that the suit was not maintainable for want of a prayer for possession was without substance. The plaintiff had not instituted the suit on the premise that he was the exclusive owner of any specifically demarcated portion of the suit land. His case was that the land stood recorded in favour of the villagers collectively and that, being a resident of the village, he was entitled to be considered for inclusion in its distribution.

The Court observed that the question whether the plaintiff was, in fact, a resident of village Chutuk and whether such residence conferred upon him the entitlement claimed were matters requiring adjudication on the basis of pleadings and evidence.

The Court observed that the jurisdiction vested in it under Article 227 of the Constitution of India is supervisory and not appellate in character, and such jurisdiction is to be exercised sparingly and only in cases where the subordinate court has acted without jurisdiction, exceeded the jurisdiction vested in it, failed to exercise jurisdiction, or committed such patent perversity or manifest injustice as would warrant interference.

The Court held,

“It is not open to this Court, while exercising supervisory jurisdiction, to substitute its own view merely because another view may also be possible on the facts of the case.”

Accordingly, the petition was dismissed. The Trial Court was directed to proceed with the suit in accordance with law and make every endeavour to conclude the trial expeditiously.