When an application is made for amending the original plaint submitted, the court cannot deny leave to amend unless there is some exception like inconsistent pleas and it shall ordinarily lean in favor of granting the permission to amend. This was decided in the case of Puttamma v. Chittibabu [Writ Petition No. 30810 of 2018 (GM-CPC)] by the High court of Karnataka by Hon’ble Justice Krishna S. Dixit.
The facts of the case are that the petitioner, who is the plaintiff of the original suit, approached the High court by filing writ petition for maintaining its application intended to amend the plaint originally introduced, after the lower court declined it. The petitioner wanted leave to amend the plaint for introducing the ground of “easement of necessity” in terms of section 13 of the Easements Act, 1882. After service of notice, the respondent-defendant having entered appearance through his counsel resists the writ petition making submission in justification of the impugned order and the reasons on which it has been predicated.
The court said that it was a long settled position of law that ordinarily the request for pre-trial amendments is favored as a rule and declined as an exception; this approach is not reflected in the impugned order and thus there is an error apparent on its face that has caused prejudice to the petitioner. It is true that any amendment would inevitably cause some change and it would cause some prejudice to the other side. The court must note the enormity of change and the consequent prejudice that the other side would be put to, should leave for amendment be granted, after going by the pleadings and the subject application there.
It was also observed by the court that there is force in the contention of the counsel for the petitioner that the impugned order of the kind is treated as a discretionary one and therefore the Writ Court should not readily interfere with it in the absence of any culpable error being demonstrated
The respondent contended that the amendment if sanctioned would amount to permitting the plaintiff to take up inconsistent plea which the law doesn’t permit. But the court said that it difficult for the court to take consider this argument. It agreed that defendants in a suit are permitted to take up inconsistent plea and not the plaintiffs and for this it relied upon the judgement of the Apex court in Usha Balasaheb Swami. Vs. Kiran Appaso Swami,(2007) 5 602 where it was held “ It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint.”
The court observed that these observations cannot rescue the respondent as it is are no thumb rules by the apex Court. Talking about easement rights, the court said that an easement requires that some diminution of the natural rights incidental to the ownership of a piece of land is reflected in a corresponding right superimposed on the natural rights incidental to another piece of land; much deliberation is not warranted since all this is to be debated in the trial of the suit.
However, the court also said “some prejudice is being caused, but there is no prejudice which cannot be compensated by awarding costs and therefore petitioner has to pay the costs of Rs. 5000”.
