Shabbu vs Nishan and Others

Daya Chaudhary, J.—The present revision petition has been filed for setting aside the order dated 16.2.2013 vide which the application filed by the petitioner under Order 6 Rule 17 CPC has been dismissed. The facts of the case are that the petitioner being plaintiff filed a suit for permanent injunction which was decreed on 9.6.2006 by Additional Civil Judge (Senior Division) Kurukshetra. The appeal filed against the aforesaid decree by the defendants was dismissed. The petitioner was in lawful possession of the suit property as the defendant-respondents have lost upto the Appellate Court and thereafter no appeal was filed. Thereafter, the petitioner filed a suit for possession of the same property wherein written statement was filed.

An application was moved by the petitioner for amendment of the plaint by adding suit for possession with recovery of mense profits from 1.1.2012 to 31.7.2012 at the rate of Rs. 6,000/- per month of each shop which comes to Rs. 42,000/-. The application filed by the petitioner was contested by the defendant-respondents and vide order dated 16.2.2013, the application was dismissed which is subject matter of challenge in the present revision petition.

Learned counsel for the petitioner has challenged the impugned order on the ground that nature of the suit is not going to be changed and no prejudice would be caused to the other party. Learned counsel also submits that due to change in facts and circumstances of the case it became imperative on his part to amend the plaint as those changes took place during the pendency of the suit.

Heard the arguments of learned counsel for the petitioner and have also perused the impugned order as well as other documents on the file.

Admittedly, the petitioner earlier filed a suit for permanent injunction restraining the defendant-respondents from interfering in the suit property and obstructing the peaceful use, occupation and possession of the suit property which was decided in favour of the petitioner. This fact shows that the petitioner was in possession of the suit property. Thereafter, the appeal tiled by the defendants was also dismissed as possession of the petitioner could not be established. Another suit for possession was filed by the petitioner of the same property, wherein, an application was moved for amendment of the pleadings by adding a different relief due to which the entire claim in the suit is changed. Learned trial Court has specifically mentioned that two different contradictory stands have been taken in both the suits as earlier it has been mentioned that the possession was with him but subsequently mense profits has been claimed from the defendants.

Undisputedly, Order 6 Rule 17 provides that the Court may allow either party to amend his pleadings in case the amendment does not cause any prejudice to the other party or the nature of pleadings are not changed.

In the present case, in case the amendment is allowed, that will change the nature of pleadings as well as course of action. The suit was filed for permanent injunction restraining the defendant from interfering in the peaceful possession whereas amendment has been sought for seeking possession as well as mesne profit from the respondent. On perusal of impugned order, no legal infirmity has been pointed out by learned counsel for the petitioner which requires interference by this Court and the present petition being devoid of any merit is hereby dismissed.