# Mohar Singh Yadav & Ors. Revisionists v. Mahendra Singh Jain & Ors

- **Citation:** (2016) 5 ILRA 1680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-04
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohar-singh-yadav-ors-revisionists-v-mahendra-singh-jain-ors-43805
- **Pages:** 7

## Headnote

Para 1-2: Introduction and Context. The defendants challenged an order dated 18.03.2016 which
allowed the plaintiffs to amend their suit. The amendment added a request for a mandatory injunction (to
regain possession) and mesne profits, following the plaintiffs' alleged dispossession during the trial.

Para 3-4: Factual Background. Originally a suit for a permanent injunction, the case saw a "tug-of-war"
over possession. The District Administration initially put the plaintiffs in possession, but the High Court later
declared that the administration had no such authority and ordered the restoration of the status quo
(returning possession to the defendants), subject to final civil court adjudication.

Para 5-7: The Amendment Application. After the High Court directed the trial to be expedited, the
plaintiffs moved to amend the plaint, arguing that since possession had been transferred back to the
defendants per court orders, they now needed a decree for recovery of possession and mesne profits. The
trial court allowed this to resolve the "real controversy."

Para 8-9: Arguments of the Revisionists. The defendants (revisionists) argued the amendment was
delayed by 18 months, changed the nature of the suit from "injunction" to "possession," and ignored the fact
that defendants claimed to be in possession from the very start.

Para 10-13: Legal Principles on Amendment. The Court reviewed Supreme Court precedents (Abdul
Rehman, Sampath Kumar), noting that pre-trial amendments should be allowed liberally to avoid multiple
5 All. Mohar Singh Yadav & Ors. Vs Mahendra Singh Jain & Ors.

1681
lawsuits. It highlighted that changing the "relief" (e.g., from injunction to possession) does not necessarily
change the "basic structure" of the suit.

Para 14-15: Court's Findings on Delay and Merit. The Court found the amendment necessary due to
developments during the suit. It ruled that a two-year gap isn't "highly belated" for a possession claim and
reiterated that the merits of the claim shouldn't be judged at the amendment stage.

Para 16-18: Conclusion. Since issues had not yet been framed, the "trial" had not technically commenced
under Order VI Rule 17 CPC. Therefore, the strict restrictions on amendments did not apply. The revision was
dismissed, upholding the trial court's order.

List of Citations

Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka and others, (2013) 9 SCC 485.
Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341.
Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559.
Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335.
Siddalingamma v. Mamtha Shenoy, (2001) 8 SCC 561.
Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385.
Andhra Bank v. ABN Amro NV Bank, (2007) 6 SCC 167.
Usha Devi v. Rijwan Ahmed, (2008) 3 SCC 717.

## Text

1680 INDIAN LAW REPORTS ALLAHABAD SERIES
18. Accordingly, the present transfer application is rejected.

19. However, it is directed that the present presiding officer shall decide the aforesaid
sessions trial on the date fixed.
----------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.05.2016

BEFORE

THE HON'BLE MANOJ MISRA, J.

Civil Revision No.- 167 Of 2016

Mohar Singh Yadav & Ors. ...Revisionists
Versus
Mahendra Singh Jain & Ors. ...Opposite parties

Counsel for the Revisionists:
Shri Ramendra Asthana

Counsel for the Opposite Parties:

Held -

Para 1-2: Introduction and Context. The defendants challenged an order dated 18.03.2016 which
allowed the plaintiffs to amend their suit. The amendment added a request for a mandatory injunction (to
regain possession) and mesne profits, following the plaintiffs' alleged dispossession during the trial.

Para 3-4: Factual Background. Originally a suit for a permanent injunction, the case saw a "tug-of-war"
over possession. The District Administration initially put the plaintiffs in possession, but the High Court later
declared that the administration had no such authority and ordered the restoration of the status quo
(returning possession to the defendants), subject to final civil court adjudication.

Para 5-7: The Amendment Application. After the High Court directed the trial to be expedited, the
plaintiffs moved to amend the plaint, arguing that since possession had been transferred back to the
defendants per court orders, they now needed a decree for recovery of possession and mesne profits. The
trial court allowed this to resolve the "real controversy."

Para 8-9: Arguments of the Revisionists. The defendants (revisionists) argued the amendment was
delayed by 18 months, changed the nature of the suit from "injunction" to "possession," and ignored the fact
that defendants claimed to be in possession from the very start.

Para 10-13: Legal Principles on Amendment. The Court reviewed Supreme Court precedents (Abdul
Rehman, Sampath Kumar), noting that pre-trial amendments should be allowed liberally to avoid multiple
5 All. Mohar Singh Yadav & Ors. Vs Mahendra Singh Jain & Ors.

1681
lawsuits. It highlighted that changing the "relief" (e.g., from injunction to possession) does not necessarily
change the "basic structure" of the suit.

Para 14-15: Court's Findings on Delay and Merit. The Court found the amendment necessary due to
developments during the suit. It ruled that a two-year gap isn't "highly belated" for a possession claim and
reiterated that the merits of the claim shouldn't be judged at the amendment stage.

Para 16-18: Conclusion. Since issues had not yet been framed, the "trial" had not technically commenced
under Order VI Rule 17 CPC. Therefore, the strict restrictions on amendments did not apply. The revision was
dismissed, upholding the trial court's order.

List of Citations

Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka and others, (2013) 9 SCC 485.
Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341.
Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559.
Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335.
Siddalingamma v. Mamtha Shenoy, (2001) 8 SCC 561.
Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385.
Andhra Bank v. ABN Amro NV Bank, (2007) 6 SCC 167.
Usha Devi v. Rijwan Ahmed, (2008) 3 SCC 717.

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard Sri Ramendra Asthana on behalf of revisionists and perused the record.

2. This is defendants' revision against an order dated 18.03.2016 passed by the Additional
Civil Judge (Sr. Div.), Court No.4, Agra in Original Suit No. 818 of 2013 by which plaintiffs'
amendment application 34 Ka, alleging dispossession during pendency of suit, to amend the plaint
so as to add the relief of mandatory injunction to restore possession to the plaintiffs as also to pay
mesne profits at the rate of Rs. 25,000/- per month, has been allowed.

3. The necessary facts of the case are that Original Suit No. 818 of 2013 was instituted by
the plaintiff-respondents for permanent prohibitory injunction against the defendants in respect of
property shown in the plaint by letters A, B, C, D and E comprising land in Khasra No. 651 and
Khasra Nos. 648, 649, 652 and 654, situated at Mauza Kakretha Mustakil, Tehsil and District Agra.

4. It appears that during the pendency of the suit, the plaintiffs approached the District
Administration. The District Administration passed order in favour of the plaintiffs. It is alleged
that the plaintiffs though were not in possession but were put in possession over the disputed
property with the aid of District Administration, therefore, challenging the orders passed by the
District Administration, Writ C No. 38708 of 2013 was filed by the revisionists which was allowed
by order dated 12.08.2013 by holding that the District Administration had no authority to transfer
possession in between private parties and, accordingly, direction was issued to restore the
possession, as it existed prior to the order passed by the District Administration. It was also
clarified that the order would be subject to final adjudication by a competent court of law.
1682 INDIAN LAW REPORTS ALLAHABAD SERIES
Thereafter, the application of the plaintiffs seeking temporary injunction came for hearing on which
an order was passed on 17.02.2014 directing the parties not to raise any fresh constructions or
change the nature of the property in suit as also not to create any third party interest.

5. Against the order dated 17.02.2014, the revisionists preferred First Appeal From Order
No. 1037 of 2014 before this Court, which was disposed of by order dated 20.04.2015, by which,
without interfering with the impugned order passed by the trial court it was observed that the trial
court would proceed to dispose of the suit itself, as expeditiously as possible, within a period of six
months from the date of production of a certified copy of the order.

6. Soon after direction was given by this Court to decide the suit, on 06.05.2015 an
application was moved on behalf of the plaintiff-respondents seeking addition of relief of
mandatory injunction to restore physical possession of the suit property to the plaintiffs as also for
mesne profits at the rate of Rs. 25,000/- per month on the ground that pursuant to the Writ Court's
order dated 12.08.2013 in Writ C No. 38708 of 2013, the possession had been transferred to the
defendants and, therefore, the amendment in the plaint was necessitated.

7. By the impugned order, this amendment application has been allowed on the ground that
it was necessary to decide the real controversy between the parties.

8. Sri Ramendra Asthana, who has appeared on behalf of the revisionists, has submitted
that the transfer of possession had taken place admittedly in the year 2013, pursuant to the order
passed by the Writ Court, but the amendment application has been filed after lapse of about 18
months and since there was inordinate delay in filing the amendment application and there was also
a direction of the appellate court to dispose of the suit itself within six months, the amendment,
being highly belated, ought not to have been allowed. It has been submitted that a suit for
permanent injunction has been converted into one for possession, which is not justified.

9. Sri Ramendra Asthana has placed reliance on a decision of the Apex Court in Mashyak
Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka and others : (2013) 9 SCC
485 so as to contend that where an amendment is highly belated, then the Court should be loath to
allow amendment. Sri Asthana has further submitted that the court below while allowing the
amendment has not at all considered the facts of the case that is whether the plaintiffs had been in
possession on the date of institution of the suit or not because it was throughout the case of the
defendants that the defendants had been in possession of the suit property from the very beginning.

10. I have given thoughtful consideration to the submissions of the learned counsel for the
revisionists.

11. Before adverting to the facts of the case it would be useful to first examine the law
relating to consideration of prayer for amendment in the pleadings. In Abdul Rehman v. Mohd.
Ruldu, (2012) 11 SCC 341, the apex court held that all amendments which are necessary for the
purpose of determining the real questions in controversy between the parties should be allowed if it
5 All. Mohar Singh Yadav & Ors. Vs Mahendra Singh Jain & Ors.

1683
does not change the basic nature of the suit. It was observed that 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.

12. In Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559, the question was whether in a
suit for permanent prohibitory injunction which remained pending for 11 years the relief for
declaration and recovery of possession should be allowed to be added by way of amendment or not.
While allowing such amendment, in paragraphs 7 to 11 of the judgment, as reported, the apex court
observed as follows:

"7. In our opinion, the basic structure of the suit is not altered by the proposed
amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the
opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the
reasons which has prevailed with the trial court and with the High Court in refusing the prayer for
amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible
for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new
suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of
the present case, allowing the amendment would curtail multiplicity of legal proceedings.

8. In Rukhmabai v. Lala Laxminarayan AIR 1960 SC 335 this Court has taken the
view that where a suit was filed without seeking an appropriate relief, it is a well-settled rule of
practice not to dismiss the suit automatically but to allow the plaintiff to make necessary
amendment if he seeks to do so.

9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to
alter or amend his pleadings at any stage of the proceedings and on such terms as may be just.
Such amendments as are directed towards putting forth and seeking determination of the real
questions in controversy between the parties shall be permitted to be made. The question of delay in
moving an application for amendment should be decided not by calculating the period from the
date of institution of the suit alone but by reference to the stage to which the hearing in the suit has
proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be
made after the commencement of the trial or after conclusion thereof. In the former case generally
it can be assumed that the defendant is not prejudiced because he will have full opportunity of
meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the
opposite party may arise and that shall have to be answered by reference to the facts and
circumstances of each individual case. No straitjacket formula can be laid down. The fact remains
that a mere delay cannot be a ground for refusing a prayer for amendment.

10. An amendment once incorporated relates back to the date of the suit. However,
the doctrine of relation-back in the context of amendment of pleadings is not one of universal
application and in appropriate cases the court is competent while permitting an amendment to
direct that the amendment permitted by it shall not relate back to the date of the suit and to the
extent permitted by it shall be deemed to have been brought before the court on the date on which
1684 INDIAN LAW REPORTS ALLAHABAD SERIES
the application seeking the amendment was filed. (See observations in Siddalingamma v.
Mamtha Shenoy.)

11. In the present case the amendment is being sought for almost 11 years
after the date of the institution of the suit. The plaintiff is not debarred from instituting a new
suit seeking relief of declaration of title and recovery of possession on the same basic facts
as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction
and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of
discretion to permit the relief of declaration of title and recovery of possession being sought
for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought
to be added as having arisen to him during the pendency of the suit. The merits of the
averments sought to be incorporated by way of amendment are not to be judged at the stage
of allowing prayer for amendment. However, the defendant is right in submitting that if he
has already perfected his title by way of adverse possession then the right so accrued should
not be allowed to be defeated by permitting an amendment and seeking a new relief which
would relate back to the date of the suit and thereby depriving the defendant of the
advantage accrued to him by lapse of time, by excluding a period of about 11 years in
calculating the period of prescriptive title claimed to have been earned by the defendant. The
interest of the defendant can be protected by directing that so far as the reliefs of declaration
of title and recovery of possession, now sought for, are concerned the prayer in that regard
shall be deemed to have been made on the date on which the application for amendment has
been filed."

13. It is thus clear that pre-trial amendments which are required to address to the real
controversy between parties in the suit are not to be disallowed ordinarily, keeping in mind
that it prevents multiplicity of suits, unless it seriously prejudices the interest of the other
side. For instance, in cases where a completely new case is introduced or new relief sought
by way of amendment, ex facie, is barred by limitation, on the date of moving the
application, or an admission made is being completely withdrawn by the proposed
amendment thereby causing prejudice to the other side, the court should be loath to allow
such amendments. But where the question whether the relief sought by way of amendment is
barred by limitation or not, is arguable, meaning thereby that it requires adjudication by
entering into the merit of the plea upon examination of evidence in that regard, it is open to
the court to allow amendment subject to such question being examined as an issue in the suit
and in such a case it is also open to the court to make such an amendment effective from the
date of filing of the amendment application so that it does not relate back to the date of
institution of the suit as normally an amendment does unless directed otherwise by the court
{vide (2001) 8 SCC 561: Siddalingamma v. Mamtha Shenoy}. It is equally important to
note that nature of the case does not change by addition or subtraction of a relief. If the
foundational facts are already available in the plaint by mere addition of an effective relief
the nature of the case does not change. It is equally well settled that while considering the
amendment application the Court is not required to address to the merit of the plea sought to
be incorporated {(2006) 4 SCC 385: Rajesh Kumar Aggarwal v. K.K. Modi; (2007) 6 SCC
5 All. Mohar Singh Yadav & Ors. Vs Mahendra Singh Jain & Ors.

1685
167: Andhra Bank v. ABN Amro NV Bank; (2008) 3 SCC 717: Usha Devi v. Rijwan
Ahmed}.

14. Coming to the facts of the instant case, the Court finds that there is a dispute
between the parties with regard to possession of the suit land. The plaintiff claims that he is
in possession of the suit land whereas the defendant claims to be in possession of the suit
land. During the course of the suit proceeding, it appears that by administrative order, the
defendants were evicted and the plaintiffs were put in possession. The administrative order
was challenged by the defendants and the challenge was accepted by the Writ Court and,
thereafter, again, the defendants came in possession of the suit land. The Writ Court while
adjudicating the matter had left the competent Civil Court to take a final call on the above
issue. Under the circumstances, the real controversy in issue between the parties is as to
whether the plaintiff had been in possession of the suit land or the defendant had been in
possession of the suit land and since, admittedly, by order of the Writ Court, there has been
alteration in possession during the pendency of the suit proceeding, it cannot be said that the
amendment which has been sought by the plaintiff in the plaint was not necessitated by
subsequent developments and, therefore, the amendment which has been sought is crucial
and critical for deciding the real controversy in issue between the parties. As, admittedly, the
amendment has been sought within two years of alleged dispossession, it cannot be said that
the amendment was so highly belated that the relief, as sought, had become barred by time.
Further, the contention of the learned counsel for the applicant that the court below erred in
law by failing to address to the question as to which party was in possession on the date of
the institution of the suit, cannot be accepted, because it is well settled that at the stage of
consideration of an application for an amendment, the merit of the plea is not to be tested
ordinarily, as the same is to be adjudged on the weight of the evidence led during the course
of trial.

15. Now, the next question which remains to be examined is whether the amendment
was hit by the proviso to Order VI Rule 17 CPC. In this regard on 02.05.2016, this Court had
directed Sri Ramendra Asthana to seek instructions from his client as to whether the trial of
the suit had commenced on the date of filing of the amendment application or not.

16. Sri Ramendra Asthana has informed the Court today that, according to the
instructions which he has received, till date, issues have not been framed in the case though a
written statement has been filed by the defendants.

17. Under the circumstances, the trial has not commenced in the suit and as such the
rigours of the proviso to Order 6 Rule 17 CPC are not applicable on the prayer for
amendment of the plaint.

18. In view of the above, this Court does not find any legal error in the order passed
by the court below, the revision is devoid of merit and is dismissed.
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1686 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 220 Of 1995

Devi Singh & Anr. ...Appellants
Versus
State Of U.P. ...Respondent

Counsels for the Appellants:
Shri Kamlesh Kumar

Counsel for the Respondent:
G.A.

Held -

Para 1: Identifies the appeal against the 1995 judgment convicting Devi Singh and Asharfi Lal under Section
307 IPC (Attempt to Murder) for an incident in Kanpur Dehat.

Para 2: Summarizes the facts: On September 15, 1992, while the informant and his father (Sahukar) were
going to Court, Devi Singh (armed with a pistol) fired at Sahukar's back after being exhorted by Asharfi Lal.

Para 3-6: Details the evidence of four witnesses, including the injured victim and the doctor. It notes the
medical report found a lacerated wound on the back but no "blackening" or "tattooing" (signs of close-range
fire).

Para 7-11: Addresses the defense's claim of a delayed FIR. The Court rules the FIR was prompt given the
13km distance to the station and the need to prioritize medical care. It notes the parties were relatives with a
history of land disputes.

Para 12-16: The defense argues that the injuries were not fatal or life-threatening. The Court reviews the
testimony of the eye-witnesses and confirms the incident took place as described.

Para 17-20: Analyzes the medical evidence. The Court notes that while the injury was "kept under
observation," the prosecution failed to provide X-ray plates or evidence that the wound was "dangerous to
life."

Para 21-24: Legal analysis of Section 307 IPC. The Court explains that while "intent" is key, the fact that the
accused did not fire a second shot despite having the opportunity suggests there was no clear intention to kill.

Para 25-28: Cites various Supreme Court precedents where fire-arm injuries that were not life-threatening led
to convictions being altered from Section 307 to Section 324 IPC.