The Court was hearing a petition filed by the tenant-petitioner challenging order passed by the learned 3rd Additional Munsiff, Srinagar, whereby the Trial Court allowed the application of the respondent-plaintiff seeking amendment of the plaint to incorporate the relief of monthly mesne profits at the rate of ₹50,000/-, besides consequential amendments in the valuation clause and the prayer clause.

A Bench of Justice M.A. Chowdhary, while dismissing the petition, observed,

"Plaintiff being 'dominus litis' has control over his claims and choice of parties, however, the right to amend the plaint, not being an absolute right remains subject to judicial discretion under Order VI Rule 17 of the CPC. Continuous cause of action allows amendment of plaint, without fresh suit."

The Court further observed,

"The proviso places a restriction on allowing an amendment after commencement of trial unless the Court is satisfied that, despite due diligence, the party could not have raised the matter before commencement of trial. In the present case, the learned Trial Court has recorded a categorical finding that the trial had not commenced."

Background:

The respondent-plaintiff instituted a suit for ejectment of the petitioner from the suit shop and for permanent injunction. The petitioner had taken the shop on rent pursuant to a rent deed. The petitioner was put into exclusive possession of the shop pursuant to the said rent deed and acquired rights and interest in respect thereof.

During the pendency of the suit, the respondents-plaintiffs filed an application seeking amendment of the plaint, inter alia, seeking incorporation of the relief of monthly mesne profits at the rate of ₹50,000/-, besides consequential amendments in various paragraphs of the plaint, the valuation clause and the prayer clause.

The said application was opposed by the petitioner-defendant on the ground that the written statement had already been filed, that the plaintiff was seeking to introduce a new case by way of amendment, that the application was intended to delay the proceedings and that the plaintiff was not entitled to seek eviction in view of the defence set up in the written statement.

The Trial Court, after considering the rival submissions, allowed the application, leading to this petition before the High Court.

Court's Observation

The Court examined the scope of Order VI Rule 17 CPC and observed that it confers power upon the Court to allow either party to alter or amend pleadings at any stage of the proceedings, in such manner and on such terms as may be just. The Court noted that the proviso places a restriction on allowing an amendment after commencement of trial unless the Court is satisfied that, despite due diligence, the party could not have raised the matter before commencement of trial.

The Court observed, "In the present case, the learned Trial Court has recorded a categorical finding that the trial had not commenced. The record, as noticed by the Trial Court, showed that the issues were yet to be framed."

On the question of whether the proposed amendment was necessary for determining the real controversy, the Court observed,

"A perusal of the pleadings, as noticed by the learned Trial Court, shows that the main dispute between the parties relates to the petitioner's occupation of the suit shop unauthorizedly, after expiry of the period of lease/rent deed and the respondent/plaintiff's claim for recovery of possession thereof. The plaintiff had already referred to the notices issued to the petitioner and had asserted his entitlement to claim mesne profits on account of the alleged continued occupation of the premises. The proposed incorporation of the relief of mesne profits, therefore, cannot at this stage be said to introduce an altogether new and foreign 'cause of action'."

The Court further held that the relief sought, by way of amendment, arises out of the same transaction and the same subject matter which already forms the basis of the suit.

The Court also observed that the merits of the claim for mesne profits could not be examined while deciding an application under Order VI Rule 17 CPC, and that whether the plaintiff was entitled to mesne profits, whether the claimed rate of ₹50,000/- per month was justified, and the period for which such relief could legally be granted, were matters to be determined by the Trial Court on the basis of evidence.

On the objection regarding prejudice, the Court observed,

"The petitioner would have an opportunity to file an amended written statement and contest the amended pleadings. Any defense available to him in law would remain open. The amendment, therefore, does not appear to cause such prejudice as cannot be compensated or addressed by granting appropriate opportunity to the petitioner."

In light with these observations the Court dismissed the petition, finding no ground to warrant interference in exercise of its supervisory jurisdiction under Article 227 of the Constitution.

Case Title: Zahoor Ahmad Dar Vs Myomona and Others

Citation: 2026 LiveLaw (JKL) 326

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