Life Insurance Corporation of India vs State of Raj.

Arun Bhansali, J.—This writ petition under Article 226 and 227 of the Constitution of India has been filed by the petitioner-defendant-LIC against order dated 08.11.2006 passed by the trial court, whereby, the application filed by respondent No. 3 - plaintiff for amendment of plaint under Order VI, Rule 17 CPC has been allowed.

The facts in brief may be noticed thus : the plaintiff filed a suit for permanent injunction against petitioner - LIC, Urban Improvement Trust, Jodhpur and State, inter alia, with the averments that he was owner of plot No. 1 situated at Manji Ka Hatha, Paota, Mandore Road, Jodhpur ad measuring 60 x 40 ft., which was purchased by him vide registered sale deed dated 03.07.1972; it was alleged that U.I.T., Jodhpur allotted plot to L.I.C. on 10.03.2000 and it started raising construction and assured plaintiff that 30 ft. wide road on the northern side of the plot would not be disturbed; it was alleged that when the plaintiff went on his plot then Assistant Engineer and other employees of U.I.T., Jodhpur were informing the Officers and Contractor of L.I.C. that L.I.C.''s plot overlaps 15 x 60 ft. with plaintiff''s plot and the said area of 15 x 60 ft. has been shown as setback in the L.I.C.''s map and the defendants were raising pillars on the 30 ft. wide road; based on the said averments the plaintiff prayed for permanent injunction against taking possession/trespassing on plaintiff''s plot and on the 30 ft. wide road; alongwith the suit an application under Order XXXIX, Rule 1 and 2 CPC was filed.

The trial court by its order dated 13.04.2000 dismissed the application under Order XXXIX, Rule 1 and 2 CPC filed by the plaintiff.

In the appeal filed by the plaintiff under Order XLIII, Rule 1(r) CPC, the appellate court allowed the appeal and granted temporary injunction qua plaintiff''s plot and the 30 ft. wide road.

L.I.C. filed revision petition under Section 115 CPC.

By order dated 18.07.2000 passed in S.B. Civil Revision Petition No. 328/2000 in view of the agreement between the parties, the revision petition was disposed of; it was agreed that during pendency of the suit, L.I.C. will be free to complete the building, structure whereof was apparent in the photographs produced before the Court; regarding the disputed portion, it was agreed that till the construction of the main building was completed and/or the Contractor leaves the site, the L.I.C. did not propose to raise construction towards the side of the plaintiff; however, if by then the suit was not decided, the Court ordered that L.I.C. will be on liberty to move appropriate application for construction of boundary wall as well as soak pit etc. on the land situated in between the building and the pillar visible in the photographs and the trial court shall decide the application on its own merit after hearing both the parties, regarding whether it was appropriate to grant permission to the petitioner on its giving undertaking to remove the construction in the event of suit being decreed.

It appears that whereafter an application under order VI, Rule 17 CPC was filed by the plaintiff for introducing para 9A, 10A, 10(d)(1), which application was allowed by the trial court by its order dated 18.10.2000.

The grant of amendment was challenged by way of S.B. Civil Writ Petition No. 588/2004 by L.I.C., which writ petition came to be dismissed by order dated 04.04.2005 and the amendment allowed by the trial court was upheld.

Whereafter, the plaintiff filed an application under Order XIV, Rule 5 CPC seeking amendment of the issues framed by the trial court, wherein, it was contended that the averments of the plaintiff are to the effect that the defendants were trying to trespass on the land ad measuring 15 x 60 ft. and raise construction and it is not his case that the defendants were raising illegal construction on 15 x 60 ft. setback area and, therefore, the issues be amended.

The trial court by its order dated 13.07.2006 allowed the application and amended issue No. 2 and incorporated the issue suggested by the plaintiff.

It appears that thereafter the present application under Order VI, Rule 17 CPC was filed by the plaintiff on 07.09.2006, inter alia, indicating that due to mistake in para 5 and 7 of the plaint, the measurement of the land sought to be trespassed upon was indicated as 15 x 60 ft. instead it should have been 25 x 60 ft. and, therefore, the said mistake be ordered to be amended by accepting the application.

The application was resisted by the petitioner; it was indicated that all along the case of the plaintiff has been regarding alleged trespass on 15 x 60 ft. land and the present application has been made on wrong facts and only with a view to delay the proceedings.

The trial court by its order dated 08.11.2006 came to the conclusion that the plaintiff was not aware about the mistake earlier and it cannot be said that when earlier the amendment was sought the said mistake was not corrected mala fidely; the defendant will get sufficient opportunity to place his case and as the case of the defendant is not that the nature of suit would change, in the interest of justice, the amendment should be allowed and allowed the amendment.

It is submitted by learned counsel for the petitioner that the trial court fell in error in allowing the application filed by the plaintiff under Order VI, Rule 17 CPC; it is submitted that the long chequered history of the litigation, as noticed hereinbefore, the consistent stand of the plaintiff in the suit, in the appeal before the lower appellate court, in the writ petition and in the revision petition has been that the area sought to be trespassed was 15 x 60 ft. and orders were passed by the court based on the said state of pleadings and submissions made accordingly; the construction of the petitioner''s building has already been completed based on the averments already made in the plaint and the orders passed by this Court, wherein, only order was passed regarding the disputed plot of land ad measuring 15 x 60 ft.; the averments made in the application regarding the plaintiff coming to know the alleged mistake has no basis, the grant of amendment will prejudice the petitioner and would result in not only change of cause of action but even the subject matter of the suit, which is not permissible and, therefore, the order passed by the trial court deserves to be set aside.

Learned counsel for the respondent supported the order impugned passed by the trial court; it was submitted that the petitioner has purchased land ad measuring 60 x 40 ft. and when on 31.08.2006 and 01.09.2006 the owners of plot No. 3 demolished the plaintiffs wall, resulting in dispute, and the measurements were done, the plaintiff came to know of the mistake and immediately the application was filed; it was submitted by changing the measurement the cause of action is not changed and the trial court was justified in allowing the application and the same does not call for any interference by this Court.

I have considered the rival submissions made by learned counsel for the parties.

It would be appropriate to notice the averments made in para 5 and 7 of the plaint, which read as under:-

The averments made in the plaint are quite categoric, wherein, in para 5 the plaintiff has made reference to conversation between Officers of U.I.T., Jodhpur and Officers and Contractor of L.I.C. regarding the disputed land and has very specifically indicated 15 x 60 ft. land and again in para 7 has made reference to communication by Officers of U.I.T., Jodhpur and the L.I.C. regarding 15 x 60 ft. land''s possession and construction.

Whereafter as noticed, the application seeking temporary injunction was rejected by the trial court, which was granted by the first appellate court and the revision petition was disposed of based on the agreement of the parties and except for the disputed portion, which till that point of time was 15 x 60 ft., the petitioner was permitted to complete the construction and seek permission from the trial court qua the disputed portion; thereafter the plaintiff as noticed hereinbefore sought first amendment in the plaint, which was granted by the trial court and whereafter application under Order XIV, Rule 5 CPC was filed; the averments made in the application under Order XIV, Rule 5 CPC also needs to be noticed, which read as under:-

The application seeking amendment in issues was granted and the issue as suggested by the plaintiff was framed, which reads as under:-

The contents of the application and the issue framed further reinforced the specific case of the plaintiff that the dispute pertained to land ad measuring 15 x 60 ft.; however, by the second amendment application, subject matter of the present writ petition, the plaintiff sought amendment/correction of the disputed land from 15 x 60 ft. to 25 x 60 ft., the cause and reasons are indicated in para 3 and 4 of the application, reads as under:-

A bare look at the averments indicates that the plaintiff has sought to contend that by mistake in para 5 and 7 the measurement 15 x 60 ft. has been indicated and the correct measurement is 25 x 60 ft.; further the cause indicated is on account of some demolition having taken place of plaintiff''s wall and the plaintiff having undertaken the measurement and coming to know of the mistake.

A bare look at the contents of the original plaint-para 5 and 7, quoted hereinbefore, reveals that petitioner made a very specific averments pertaining to the conversation between the Officers of U.I.T. and petitioner L.I.C. not only once but twice and has been very categoric in his submission about the dispute pertaining to 15 x 60 ft., whereafter the temporary injunction application came to be contested and decided by the three forums i.e. the trial court, first appellate court and the revisional court, wherein, also the subject matter of dispute continued to be land ad measuring 15 x 60 ft. and orders were passed on agreement regarding liberty to the petitioner to complete the building, structure and regarding the disputed portion i.e. 15 x 60 ft. only the orders were passed on agreement; the stand of the plaintiff is further fortified by way of filing application under Order XIV, Rule 5 CPC, contents whereof have been noticed hereinbefore and a specific issue regarding alleged trespass on the land ad measuring 15 x 60 ft. was framed by the trial court on petitioner''s application; whereafter the petitioner has sought to simply amend the measurements as contained in para 5 and 7 of the plaint from 15 x 60 ft. to 25 x 60 ft. seeking to change the subject matter of the dispute, regarding which, in view of the categoric stand already taken by the plaintiff, the defendant has already changed his position with the consent, concurrence and under orders of this Court. The grant of amendment in the present circumstances has definitely changed the ''subject matter of dispute'', not only the cause of action, which consideration is worst than even change of cause of action.

Further, after having made categoric statements regarding the alleged trespass on 15 x 60 ft. land in the year 2000 in para 5 and 7 of the plaint, on account of alleged measurement done by the plaintiff, it cannot be said that the measurement indicated in the plaint was by mistake, inasmuch as, the plaint averments pertained to the conversation between the Officers and the subject matter of that conversation as alleged in the plaint cannot get changed/altered on account of some measurement alleged to have been taken by the plaintiff in the year 2006 and, therefore, on that count also, the reason given by the trial court that the amendment sought was seeking to correct the mistake in the measurements is wholly baseless and without any substance. The grant of amendment in the facts and circumstance of the present case, the chequered contested history of the case where each and every application was being contested tooth and nail by the parties, every order passed was questioned right up to the Division Bench of this Court, it cannot be said that the amendment sought was merely based on some mistake and on that count as well the exercise of jurisdiction by the trial court was wholly improper and against settled principles of law.

In view of the above discussion, the writ petition is allowed. The order dated 08.11.2006 passed by the trial court is set aside. The application filed by the plaintiff under Order VI, Rule 17 CPC is dismissed. No order as to costs.