Champa Devi vs Kuldeep Singh and Others

Deepak Gupta, J.—By means of this petition the Petitioner has challenged the order dated 18.12.2008 whereby the learned trial Court has permitted the Plaintiff to amend the plaint.

Briefly stated the facts of the case are that in the year 2001 Respondent No. 1 (here-in-after referred to as the Plaintiff) filed a suit against the State of H.P. and its functionaries claiming that they had no right to take water from Jard Khad to the land of the Defendants. Later the Petitioner and proforma Defendants were impleaded as parties to the suit. The Plaintiff initially claimed that he had a customary right of easement to use the water of this Khad. The case was still at the pre trial stage since replication had still to be filed when the Plaintiff filed an application seeking amendment.

The basic amendment sought is that instead of customary right of easement now the Plaintiff claims that he has a prescriptive right of easement to use the water from the Khad in question. Basically, it does not change the nature of the suit at all. Changing the type of easement claim would normally not mean that a new cause of action has been brought in. In any event, the cause of action was already pleaded and only the type of easement claimed is being changed. Shri Arun Kumar, learned Counsel for the Petitioner, submits that this amendment should not have been allowed. He has relied upon the judgment of the Madras High Court in The Secretary of State for India in Council Vs. P.S. Nageswara Ayyar (deceased) and Others, and three judgments of this High Court in Prikshat Mehdudia v. D.D. Bhardwaj 2000 (1) CL.J. (H.P.) 15 , Rajesh Kumar Talwar v. Balkar Singh Latest HLJ 2010 (HP) 447 and Satya Parkash and Ors. v. State of H.P. and Ors. Latest HLJ 2010 (HP) 34.

In my opinion these judgments do not help the Petitioner. As far as the judgment of the Madras High Court is concerned that deals with the question of easementary rights. At the stage of allowing or disallowing the amendment the merits of the contention cannot be gone into. As far as the judgment of this Court in Prikshat Mehdudia''s case is concerned in that case the amendment was disallowed since it was moved at the fag end of the trial and that was one of the main reasons why the amendment was disallowed. The judgment of this Court in Satya Parkash and others has no relevance whatsoever to the present case since in that case the suit had been filed in the year 1984 and the amendment application seeking leave to amend the written statement to introduce a counter claim was filed in the year 2008 i.e. 24 years after the suit had been filed and therefore ex facie the claim was time barred.

This Court at this stage is not deciding the question whether the claim of the Plaintiff is time barred or not. It is open for the Defendants to raise all such pleas in the written statement to be filed but I find no error in the order of the learned trial Court in allowing the amendment. The petition is accordingly rejected. Parties through their Counsel are directed to appear before the learned trial Court on 23rd May, 2011. Since the suit was filed in the year 2001 the learned trial Court shall make endeavour to dispose of the suit at the earliest and in any event not later than 31st March, 2012.