Punjab-Haryana High Court
Baldev Raj vs Municipal Committee And Anr. on 26 August, 1999
Equivalent citations: (1999)123PLR573
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. This revision is directed against the order passed by the learned Civil Judge (Junior Division), Palwal, dated 16.1.1999.
2. The plaintiff-petitioner herein had filed a suit for permanent injunction against the defendants. According to the plaintiff, he had been in possession of the property in question, which happens to be his shop and the shop itself has been demolished by the defendant despite injunction granted by the Court. These events have occurred subsequent to the institution of suit. Consequently, the plaintiff-petitioner filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint in regard to these subsequent events and to amend the. prayer clause by incorporating the relief of mandatory injunction and for possession.
3. This application was contested by the defendants. The learned trial Court dismissed the said application giving rise to the filing of the present revision petition.
4. The tenor of the order passed by the learned trial Court indicates that the court has expressed its opinion more with regard to the merits of the amendment, in relation to the final determination of the controversies in the suit rather than the merits of the amended application itself. The Court is not concerned whether the amendment prayed for would ultimately succeed or would fail, after the parties have led evidence in that respect. The Court would be more concerned with the merits or demerits of the amendment application and not its effect on the final determination of the suit unless such amendment was otherwise barred in law.
"......The defendant No. 1 did not demolish the disputed shop rather the police and enforcement officer had demolished the encroachment which was illegal and unauthorised. The contempt petition is false and frivolous. The application requires, dismissal with costs."
5. Despite the above observations, the learned trial court still dismissed the application by considering the documentary evidence placed on record observing therein that the injunction order granted by the court did not prevent the other party from dispossesing the plaintiff from the shop in question in accordance with law as well as demolishing the same.
6. I am of the considered opinion that the learned trial court has fallen in error of jurisdiction in declining the amendment, bringing on record the events subsequent to the institution of the suit and for additional prayer on the basis of the same fact. Once, the Court was primarily satisfied that the events were subsequent to the institution of the suit and the plaintiff had been dispossessed and the property was demolished, and such action relates to the property in issue, the application for amendment ought to have been allowed. The law in regard to amendment has been liberally construed in the recent time and so far a party does not alter his basic cause of action and takes the other party by surprise and prejudice, the amendment relating to subsequent events would normally be permitted.
7. The learned counsel appearing for the respondents argued that the claim of the plaintiff was barred by time and in view of the principle enunciated by the Hon'ble Supreme Court of India in the case of Muni Lal v. The Oriental Fire and General Insurance Company Limited and Anr., A.I.R. 1996 Supreme Court 642, the application for amendment has been rightly rejected by the learned trial Court. It is contended that the demolition took place on 10th April, 1994, while the application for amendment was filed in 1998. Firstly, I find no discussion in relation to this ground by the learned trial Court and secondly, the case of the plaintiff was that he had taken a vacant plot and had constructed a shop on that plot. As he was apprehending serious threat to his dispossession and demolition of the tenanted property, he filed the suit. The defendants have completely denied any right of title of the plaintiff in relation to the property in question. According to the plaintiff, he wishes to add the relief of mandatory injunction and possession by the proposed amendment. Under Section 64 of the Limitation Act, 193, the plaintiff can claim such relief of possession within 12 years as he is not basing his claim of title. However, this controversy would have to be gone into during the course of the trial. As is apparent from the observations of the learned trial Court that the plaintiff had been admittedly dispossessed. Whether it was according to due process of law or unauthorised or illegal will have to be gone into during the trial by the learned trial Court.
8. For the aforesaid reasons, this revision petition is accepted, the order passed by the learned trial court dated 16.1.1999 is set aside and the application under Order 6 Rule 17 of the Code of Civil Procedure filed by the plaintiff is allowed subject to payment of Rs. 1,500/- as costs, the costs being conditional.