Shubh Kumar vs Ashok Kumar and Others

Deepak Gupta, J.—This petition is directed against the order dated 16.1.2010 passed by the learned Civil Judge (Jr. Division), Court No. (1), Amb, District Una, HP whereby he dismissed the application filed by the Petitioner (hereinafter to referred as the Plaintiff) for amendment of the plaint.

Briefly stated the facts of the case are that the Plaintiff filed a suit in the year 2007 claiming that the suit land measuring 0-13-39 hects, comprised in khewat No. 594 khatoni No. 701, khasra No. 2736/281 situated in up Mahal and Mahal Bhaderkali, Tehsil amb, District, Una is owned by the Plaintiff and other co-sharers. It was alleged that the Defendant had no right, title or interest over the suit land, but the land of both parties adjoins to each other. According to the Plaintiff, the Defendants were trying to grab the land of the Plaintiff and therefore prayed that a decree of permanent injunction be passed restraining the Defendants from interfering in any manner over the suit land.

Written statement was filed, in which it was stated that the predecessor-in-interest of both the parties had purchased the land from one Shri Pritam Chand by Tatima sale deeds and the Defendants are in possession of khasra No. 2735/281 since the time of purchase. It is thus apparent that the Defendants claimed that they are not raising any construction on the suit land comprised in Khasra No. 2736/281 and in fact they set up a plea that the Plaintiff wants to grab their land comprised in Khasra No. 2735/281.

Issues in the suit were framed on 9.8.2007. Evidence of the Plaintiff was closed on 30.10.2008. The Defendants led evidence and it was closed on 30.7.2009. Thereafter the Plaintiff filed an application under Order 6 Rule 17 CPC on 20.10.2009.

By means of this application the Plaintiff sought to amend the plaint. According to the Plaintiff during the pendency of the suit, the Defendants had forcibly encroached upon a part of the suit land on 10/11th October, 2009 and raised wall over the same and therefore amendment was sought.

In reply, the Defendants stated that the area now depicted as encroached was a part of Khasra No. 2735/281 and therefore no amendment could be allowed. The learned Trial Court rejected the application for amendment on the ground that the site plan filed along with the application for amendment relates to composite Khasra No. 281 and not to Khasra No. 2736/281. It was therefore, held that the Plaintiff had tried to mislead the Court by filing a wrong site plan. The learned judge thereafter went on to discuss the evidence and made some observations on merits.

In my view while deciding an application for amendment, the learned Trial Court should not have embarked upon giving any findings which could affect the merits of the case itself. At the stage of amendment all that has to be considered is whether the amendment is malafide or bonafide; whether such plea could have been raised before framing of issues and whether such plea will change the nature of the case. In my view none of these conditions are satisfied. The nature of the suit does not change and the Plaintiff could not have made such a claim before framing of issues. In my view, therefore, the learned Trial Court gravely erred in rejecting the application for amendment.

In view of the above discussion, this petition is allowed, the order of the learned Trial Court is set aside, and the Plaintiff is allowed to amend the plaint. The parties through their learned Counsel are directed to appear before the learned Trial Court on 12th January, 2011 and the learned Trial Court shall thereafter proceed in the matter. The Registry is directed to return the record of the case, so as to reach before the learned Trial Court well before the next date. No costs.