Fatima vs Ali Mohd.Bhat, Sarah Begum, Javid Ahmed Bhat, Mohd.Latif Bhat and Ors.

Since the counsel for the petitioner inspite of notice is not present and the petition involves interpretation of questions of law, the same is taken

up for final adjudication.

Revision petition has been submit ted to set aside the order dated 15.6.1999 passed by the 2nd Addl Munsiff, Srinagar in the suit titled Fatima

Vs Ali Mohd Bhat and others.

Record of the trial court shows that plaintiff petitioner filed suit for permanent injunction praying that the respondents may be directed not to

cause interference in the land in her possession measuring 2 Kanals comprising under Khasra No. 126 and 129 situated at Iddgah, Srinagar.

Alongwith the suit an application for temporary injunction was also filed in which the trial court directed the nonapplicants/respondents not to

interfere in the peaceful possession of the plaintiffpetitioner vide order dated 1381997.

The plaintiffpetitioner during the pendency of the proceedings submitted an application praying for amendment of the plaint on the grounds that

since she has been dispossessed by the defendantsrespondents therefore, she may be permitted to incorporate the relief of declaration and

possession by amendment. This application dated 871998 was considered by the trial court and after hearing the par ties, the trial court refused the

prayer to amend the plaint vide order dated 155 1999. It is the validity of this order which has been challenged in the present petition.

Heard the learned counsel for the respondents and perused the entire record.

From the perusal of the record of the trial Court and the pleadings of the parties, it is manifestly clear that the present petitioner filed suit on

1381997 for permanent injunction wherein she asserted that she was in peaceful possession and this position seems to have been protected by the

order of interim relief granted by the trial Court on 1381997. The defendantsrespondents filed written statement on 21 21998 wherein they con

tested the petitioner's suit besides other grounds on the main ground that the plaintiff was not in possession and did not have a prima facie case and

could not be en titled to either relief for permanent injunction or temporary injunction. The application for amendment was submitted on 8 71998

i.e. after a period of nearly one year of the passing of the interim order dated 1381997, wherein the possession of the plaintiffpetitioner was

protected under the court order. It does not appeal to reason that if the possession of the plaintiffpetitioner was already protected under the Court

order, where was the need for the plaintiffpetitioner to apply for permission to amend the plaint, without moving the trial court either for restoration

of possession or for contempt of the court order. On perusal of the record, it is manifestly clear that no application for contempt or restoration of

possession, during the period of nearly one year from the passing of the interim relief, on 1381997 till the application for amendment was filed on

871998. These circumstances seem to have been taken note of by the trial Court while passing the impugned order.

The revenue record submitted with the plaint is silent about the possession of plaintiff on the suit land. It appears that if the plaintiff was not in

possession of the suit property and did not incorporate the relief of declaration and possession at the time of filing the suit in the year 1997 which

relief would be available to the petitioner, it can safely be held that the relief which was available at the time of institution of the suit was not

included in the plaint and as such has been waived off by the petitioner. The impugned order which seems to have been passed strictly in

accordance with law, does not for these reasons suffer from any infirmity or erroneous exercise of juridiction, warrants no interference Admittedly,

the law on the amendment has been relaxed to accommodate, to avoid multiplity of litigation but in the process sight cannot be lost of

circumstances where the amendments are sought only to take a chance in the litigation in order to keep the other side engaged for ulterior motive.

In the case in hand since the order of the trial court is found not to suffer from any legal infirmity, the order is up held, the revision petition is

dismissed.

Record of the trial court be sent back forthwith.