Rajinder Singh vs Narinder Kumar Verma and Others

Swatanter Kumar, J.—This revision petition is directed against the order dated 17th March, 1997 passed by the learned Additional Civil Judge (Senior Division), Ludhiana. Vide impugned order, the learned judge has allowed the application filed under Order 6 Rule 17 of C.P.C. for amendment of the plaint filed by the plaintiff.

Assailing the impugned order, the contention raised on behalf of the petitioner is that the amendment was barred by time, as such, the same could not have been allowed. It is further contended that the amendment has been filed at the belated stage and is beyond the scope of the suit. Reliance has been placed by the counsel for the petitioner on the cases of Radhika Devi Vs. Bajrangi Singh and others, and K. Raheja Constructions Limited v. Alliance Ministries and Ors., 1996(1)CCC 80 (S.C.) .

On the other hand, it is contended by the learned Counsel for the respondents that the amendment sought is for the subsequent event in the suit and only further relief has been prayed by way of amendment. It neither changes nor alter the case of the plaintiff already pleaded to the prejudice of the defendant- petitioner herein.

A suit for permanent injunction for restraining the defendants from illegally encroaching upon the western walls marked A and B on the first floor and C and D on the 2nd floor of the plaintiff''s house, which was more accurately described in the map annexed to the plaint, was filed by the plaintiff. The suit was instituted on or about 29.6.1983. On 2nd July, 1983, an order of temporary injunction was granted by the Court, but the defendants kept on raising the construction in violation of the order of injunction.

Learned Counsel appearing for the defendants also made a statement on 7.11.1983 that they would not raise any further construction over the 2nd floor during the pendency of the suit. The learned trial Court on application of the plaintiff had also appointed a Local Commissioner vide order dated 11.7.1983. The Local Commissioner submitted his report. It is further stated that the defendants in the suit, in violation of the order of the court and their own statement made in the Court, raised illegal construction on the 3rd floor of the house. Learned Sub Judge itself visited the site on 11.10.1983 and made an inspection note. After a considerable period, the present application for amendment was filed by the plaintiff-applicant praying for a decree of mandatory injunction as well for demolishing the barsati and staircase illegally constructed on the 2nd floor upon encroaching upon the wall of the plaintiff. This application for amendment has been allowed by the impugned order.

There is certainly some delay on the part of the plaintiff-applicant in filing the present application. Learned Counsel for the petitioners heavily relied upon the fact that the statement of the plaintiff was recorded on 27th August, 1990 where he stated that no construction has been raised after the visit of the Local Commissioner. All these controversies related to merit of the dispute. No doubt, as per the judgment of the Hon''ble Supreme Court of India, referred to above, if an amendment ex-facie is barred by limitation, such amendment should not be allowed by the Court. However, from the above narrated facts of the case, it is dear that at this stage, it is very difficult to say whether the relief of mandatory injunction would be barred by time or not. This issue will have to be gone into after the parties lead their evidence as to the dates when the construction was raised and when the construction of the 2nd and 3rd floor was commenced and completed. So, the learned trial Court has rightly left the question of limitation open and has not decided the same either way. I would affirm the view taken by the learned trial Court that in the facts and circumstances of the present case, the issue of limitation could be framed and decided in the main suit itself.

It needs to be noticed, at this stage, that the report exhibit P.8/36 also does indicate some of the construction, which according to the plaintiff exists on the date of filing of the application. In other words, events sought to be introduced by way of amendment are subsequent to the institution of the suit and the relief of mandatory injunction is a consequence of violation of interlocutory temporary prohibitory injunction in a suit praying decree for permanent prohibitory injunction.

In these circumstances, I am of the considered view that the amendment prayed for does not alter or change the nature of the case pleaded by the plaintiff. In fact, the amendment is based upon the subsequent event which have taken place during the pendency of the suit.

I do not see any error of jurisdiction in the impugned order. However, in order to avoid any prejudice to either parties to the suit, I would refrain from commenting on the question of limitation at this stage, as this determination requires evidence. As such, the issue is left open.

For the aforestated reasons, I do not find any merit in this revision. The same is dismissed. However, there shall be no order as to costs.