Punjab-Haryana High Court
Dewan Chand vs Kalyan Dass And Ors. on 12 December, 1986
Equivalent citations: AIR1988P&H43, AIR 1988 PUNJAB AND HARYANA 43, (1987) 1 RENCR 476, (1988) 1 LANDLR 100, (1987) 1 RENTLR 39, 1987 REVLR 353, 1987 HRR 238, (1987) 91 PUN LR 19
ORDER
1. This petition is directed against the order of the Additional District Judge, Karnal, dated 10th April, 1986 whereby amendment of the plaint has been allowed in appeal.
2. Two suits were filed for permanent injunction--one by Kalyan Dass and the other one by Diwan Chand In both the suits it was pleaded respectively that they were the tenants. in the suit land under the Municipal Committee, Karnal. Both the suits were consolidated and were decided simultaneously. The suit filed by Diwan Chand was decreed whereas the suit filed by Kalyan Dass was dismissed It was held that Diwan Chand was the tenant in the shop in dispute under the Municipal Committee and he could not be dispossessed except in accordance with law. Dissatisfied with the same Kalyan Dass filed two appeals In the appeal arising out of the suit filed by him he sought ejectment of Diwan Chand alleging that since he was dispossessed during the pendency of the suit, he was entitled to the relief of possession. In the said application it was also pleaded that Diwan Chand was a licencee under Kalyan Dass: The said application was contested by Diwan Chand The learned Additional District Judge, Karnal, took the view that it is wed settled law that however negligent or careless may have been the first omission and however late may be the proposed amendment, the amendment should be allowed if it is made without prejudice to the other side. On that basis he allowed the necessary amendment in the plaint at the appellate stage on payment of Rs. 25o/- as costs. Dissatisfied with the same Diwan Chand has filed this petition in this Court.
3. At the time of motion hearing it was contended that not only the prayer of claiming the possession in the suit has been allowed but also the plea that the defendant was a licencee under the plaintiff.
4. Learned counsel for the petitioner submitted that no such amendment. could be allowed at the appellate stage. Kalyan Dass took a specific plea that he was a tenant, both in the suit as well as in the written statement in the suit filed by Diwan Chand That plea has been negatived by the trial Court. Once that plea was negatived then at the appellate stage he could not be allowed to take t he plea that Diwan. Chand defendant in his suit was a licensee As regards the plea of possession, in case it was proved that Kalyan Dass was dispossessed during the pendency of the suit, as alleged by him, then in that situation the necessary relief may be given to him but on that account he cannot be allowed to take a different plea at this stage. Thus argued the learned counsel, the whole approach of the lower appellate Court in allowing the amendment at the appellate stage was wrong, illegal and misconceived In support of his contention he. referred to Hans Raj v. Savitri Devi. 1986(1) 89 Pun LR 524. On the other hand the learned counsel for the respondent Kalyan Dass submitted that the said plea that Diwan Chand was a licencee was only of the clarificatory nature. The real amendment sought by him was that he be put into possession of t he shop in dispute since Diwan Chand had illegally occupied the same during the pendency of the suit, who was a mere licensee under the New Haryana Gram Udyog Samit4 Sadar Bazar, Karnal. According to the learned counsel the said amendment was necessary to do justice between the parties and, therefore, it had been rightly allowed by the lower appellate Court.
5. After hearing the learned counsel for the parties, I am of the considered view that the whole approach of the lower appellate Court was wrong illegal and misconceived It is to be emphasized that the application for amendment of the pleadings was not to be allowed on the ground that it was well settled law that however negligent or careless may have been the first omission and however late proposed amendment, the same should be allowed if it could be allowed without prejudice to the other side. After the decision of the trial Court the rights of the parties were determined and no new plea which was available in the trial Court, should have been ordinarily allowed. On the facts and circumstances of the present case, no such case was made out by plaintiff Kalyan Dass for seeking such an amendment in the plaint at the appellate stage Moreover in the written statement filed in the suit filed by Diwan Chand no such amendment was sought and since both the suits were decided simultaneously, the question of amending the plaint at the appellate stage did not arise. Unless there is some explanation as to why the plea proposed to be taken by way of amendment of the plaint was not taken earlier during the pendency of the suit in the trial Court is coming forward the amendment should not be allowed.
6. As regards the question that the plaintiff is entitled to the relief of possession of the shop in dispute in case it is found that he was illegally dispossessed during the pendency of the suit, it is not disputed; that for that purpose no amendment as such was needed in the plaint. The Court is entitled to grant such a relief as and when it is found that the plaintiff was in possession of the suit land as a tenant but was dispossessed illegally during the pendency of the suit by the defendant.
7. With the aforesaid observations, the petition succeeds, the impugned order is set aside and it is directed that the appeal be decided on merits in accordance with law.
8. The parties have been directed through their counsel to appear before the Additional District Judge, Karnal, on 8th January, 1987.
9. Petition allowed.