Page 1 CM(M) no.88/2023 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR …… CM(M) no.88/2023 Reserved on: 05.02.2025 Pronounced on: 30.04.2025 Abdul Majeed Sofi (Aged 48 years) S/o Ali Mohammad Sofi R/o Mallabuchan Magam District Budgam Prop. Sofi Readymade Garments Magam …….Petitioner(s) Through: Mr Sheikh Musthaq, Advocate Versus Ghulam Hassan Banka S/o Ghulam Hussain Banka R/o Goom Ahmadpora Tehsil Pattan District Baramulla ……Respondent(s) Through: Mr Mir Javed, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Order dated 31st March 2023, passed by Special Mobile Judge (Sub Judge), Budgam (for short “Trial Court”) by virtue whereof application for amendment of suit bearing no.178/M titled as Abdul Majeed Sofi v. Ghulam Hassan Banka, is sought to be set-aside in this petition preferred under Article 227 of the Constitution of India. 2. Petitioner’s case as set up by him in petition in hand is that he has been in occupation of a shop measuring 10’x8’ situate at Magam near Bus Stand since 2008 and has been paying rentals to respondent. Suit shop actually belongs to deceased wife of respondent who had inherited it from her father. During her lifetime she and her mother entered into a rent agreement with shopkeepers, which is registered by Sub Registrar Page 2 CM(M) no.88/2023 Magam. Petitioner claims that in rent agreement it is clearly mentioned that shop of petitioner falls within category-D and he has to pay annual rent of Rs.27,000/-. Petitioner filed a civil suit for permanent prohibitory injunction, restraining respondent from ejecting/ dispossessing him from suit shop. Respondent filed written statement. On petitioner’s application Commissioner appointed by Trial Court visited spot and submitted a report. It is being also stated by petitioner that respondent made an application for recovery of Rs.2,96,000/- with banking interest on account of inadvertent mention in para 2 of plaint that suit was rented to petitioner at an annual rent of Rs.40,000/- since 2008 and taking advantage of inadvertence, negligence and mistake made during drafting of plaint, respondent sought recovery of said amount. Petitioner filed objections giving description of rent fixed year- wise and amount already paid to respondent. Petitioner moved an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of plaint; to which respondent filed his objections. By order impugned dismissed petitioner’s application for amendment of suit. 3. Grounds of challenge are: a) Order VI Rule 17 CPC provides for amendment of pleadings at any stage of proceedings by either party to alter or amend his pleadings in such a 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 parties. The trial court, however, declined the amendment on the ground that there is an admission by plaintiff in the plaint and same cannot be Page 3 CM(M) no.88/2023 permitted to be resiled by seeking amendment. Petitioner through the motion of amendment has given a clear description of the rent year-wise and the same is maintained in the lock book signed by the parties. It is, therefore, clear that there was an inadvertent mistake on the part of counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when mistake is apparent from reading of plaint. Trial Court has not considered this important and vital aspect of the matter and rejected application seeking amendment, which is clearly not in consonance with facts at law. b) Negligent or careless may have mean the first omission and, however, amendment deserves to be allowed as it would not have caused any injustice to other-side. Assuming amendment was allowed, only thing that could have happened that an issue could have been as to whether rent was Rs.40,000/- per annum since 2008 or Rs.20,000/- up to 2013. Trial Court, however, failed to advert to this aspect of the matter resulting in error of jurisdiction. c) Rules of procedure are intended to be handmaids to administration of justice. A party cannot be refused just to relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The power to grant amendment of pleadings is intended to serve ends of justice and is not governed by any narrow or technical limitations. Trial Court declined proposed amendment without recording any dispositive reasoning and same has amounted to injustice to petitioner. d) Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Page 4 CM(M) no.88/2023 Declining amendment shall not become a tool to deny justice and perpetuate injustice. Rectification of defect would not have affected the case on merits or affected jurisdiction, as such, amendment sought by petitioner by giving exact and correct facts deserved to be allowed. The Trial Court, however, declined application on account of being time barred. Order VI Rule 17 CPC does not provide for any limitation and the court may permit amendment at any stage for determining the real question in controversy of parties. The Trial Court declined amendment which is per se not in consonance with Order VI Rule 17 CPC and as such suffers from error of jurisdiction and deserves to be set-aside. e) Trial of suit is yet to begin in that the stage of framing issues has not arrive. The suit is at pre-framing of issues and stage and amendment sought thus could not have been refused on account of ground of delay and limitation. Trial Court misdirected itself and declined amendment of suit which has resulted in injustice to petitioner. 4. I have heard learned counsel and considered the matter. 5. Civil suit filed by plaintiff is for decree of permanent prohibitory injunction restraining defendant/respondent from ejecting/ dispossessing plaintiff/petitioner from suit shop at Magam near Bus Stand and restraining defendant/respondent from causing any kind of interference in business of plaintiff vis-à-vis suit shop. 6. Amongst others, defendant/respondent in his written statement has stated that suit shop belonged to his deceased wife, which was given to plaintiff/petitioner on rent orally in the year 2008 against annual rent of Rs.40,000/- with a stipulation that petitioner shall hand over shop to Page 5 CM(M) no.88/2023 defendant/respondent by or before 31st December 2017 as defendant, working in J&K Horticulture Corporation, Srinagar, was due to retire in the year 2017 and stipulation was agreed by plaintiff. However, when defendant/respondent retired from job, plaintiff delayed to hand over it on one pretext or other. Plaintiff was required to pay an amount of Rs.5,20,000/- till December 2020, but plaintiff is in arrears of more than Rs.2.00 Lacs till ending 2020 and despite various demands plaintiff is not making payment of arrears of rent. It is also stated by defendant/respondent in his written statement that plaintiff/ petitioner is already having his own shops in the same market where he can set up hi business and in contrary defendant/ respondent has no source of income other than the suit shop. 7. Plaintiff/petitioner moved an application under Order VI Rule 17 CPC for amendment in his plaint. It had been contention of counsel for plaintiff before Trial Court that defendant caused his appearance and filed written statement and that defendant has filed application for recovery of Rs.2,96,000/- from plaintiff on false grounds, to which objections had been filed by him and that fact of the matter is that an amount of Rs.1,36,500/- was advance amount of plaintiff with defendant upto December 2018 and then rent had been fixed from January 2018 @ Rs.40,000/-. Plaintiff also stated that he had already paid advance rent to defendant but defendant misread plaint and as a consequence of which filed a false application for recovery of Rs.2,96,000/-. It was also contended by plaintiff that defendant had admitted in his written statement that plaintiff was holding possession of suit as also Commissioner’s report reflect plaintiff was holding and Page 6 CM(M) no.88/2023 carrying business in suit shop but defendant was adamant to dispossess plaintiff from suit shop. Defendant was forcing plaintiff to pay an amount of Rs.2,96,000/- which recovery of amount was beyond the truth. Plaintiff’s suit was at infancy stage, as such, proposed amendment in the suit would not have caused any prejudice to defendant. With his application, petitioner/plaintiff appended copy of amended plaint. In paragraph 02 of amended plaint, it is stated that rent from January 2008 to December 2012 was Rs.20,000/- per annum, from January 2013 to December 2017 it was Rs.22,500/- per annum and from January 2018 to December 2018 it was Rs.40,000/- In contrast, it had been assertion of counsel for respondent/ defendant that there was no clerical mistake as it was admission on the part of plaintiff/petitioner which he had done in plaint as well as in his preliminary statement made by him before the Trial Court, thereby giving right to respondent/defendant to seek recovery of the arrears of rent. 8. 8. Order VI Rule 17 of the Code of Civil Procedure envisages that 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. However, proviso thereto stipulates 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. Page 7 CM(M) no.88/2023 9. Order VI CPC relates to pleading. It says that every pleading shall contain, and contain only, a statement in a concise form on the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. Dates, sums, and numbers shall be expressed in a pleading in figures as well as in words. Pleading serves the purpose of bringing the parties to a definite issue so that there will not be any surprises at the hearing. It also diminishes delay as both parties are aware of each other’s contentions and are clear on the real question of the parties to a suit. 10. When impugned order is perused in the context of above, there is no gainsaying that Trial Court has rightly said and stated by the Trial Court that suit has been filed by plaintiff/petitioner on 15th June 2021. Thereafter, defendant appeared and filed his written statement on 26th September 2021. By his own saying, even Commissioner was appointed by Trial Court, who submitted his report. 11. It is almost one year after filing of written statement, i.e., on 16th September 2022, that an application came to be moved by defendant for recovery of Rs.2,96,000/- as being arrears of rent. On 2th November 2022, objections to the application were filed by plaintiff/petitioner. 12. It is not immediately after filing of written statement by defendant in the month of September 2021 that plaintiff/petitioner approached Trial Court seeking amendment of plaint, but it is on 3rd February 2023, when defendant made an application for recovery of amount that too in the Page 8 CM(M) no.88/2023 month of September 2022, that plaintiff/petitioner thought it expedient to move an application for amendment of plaint qua rate of rentals. Thus, Trial Court has been correct in saying that after long slumber plaintiff woke up only when defendant moved an application for recovery of rent and that from 2021 till the date of filing of application, plaintiff did not bother to seek amendment. In that view of matter impugned order does not call for any interference. 13. In view of above, instant petition is dismissed with connected CM(s). Interim direction, if any, shall stand vacated. (Vinod Chatterji Koul) Judge Srinagar 30.04.2025 Ajaz Ahmad, Secretary Whether approved for reporting? Yes/No.