Tej Pal and Others vs Sumer Singh and Others

Ram Chand Gupta, J.

C.M. No. 1155-CII of 2011

Application is allowed subject to all just exceptions.

C.R. No. 270 of 2011(O and M)

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 15.11.2010, Annexure P5, passed by learned trial Court, i.e., Additional Civil Judge, Senior Division, Hathin, vide which prayer of Petitioner-Plaintiffs for amendment of plaint under Order VI Rule 17 of the CPC (hereinafter to be referred as the `Code'') was dismissed.

I have heard learned Counsel for the Petitioners and have gone through the whole record carefully including the impugned order passed by learned Additional Civil Judge, Senior Division, Hathin.

Brief facts relevant for the purpose of decision of present revision petition are that initially the suit was filed by the present Petitioner-Plaintiffs for declaration and permanent injunction on the ground that they are in possession of land in dispute as tenants/Gair Marusi on payment of 1/3rd batai, as per copy of jamabandi for the year 1996-97 and khasra girdawaris. Written statement was also filed contesting the same. Issues were framed and the case was fixed for evidence of the Plaintiffs. An application under Order 39 Rules 1 and 2 of the Code was also filed on behalf of the Petitioner-Plaintiffs for ad interim injunction and however, the same was dismissed by learned trial Court as well as by Appellate Court. Revision filed before this Court was also dismissed and against that order the Petitioner-Plaintiffs moved to Hon''ble Supreme Court and however, Hon''ble Supreme Court directed to maintain the status quo.

Now by way of the present revision petition, the Petitioner Plaintiffs requested that they be permitted to amend the plaint to the effect that they are in possession of the land in dispute as occupancy tenants.

Learned trial Court dismissed the said request of Petitioner-Plaintiffs by observing as under:

After pondering to the contentions raised by learned Counsel for the parties and after going through the record very carefully this Court is of the considered view that the instant suit has been filed by Tej Pal etc. claiming themselves to be Gair Morusi over the suit property. As per Plaintiff''s version Smt. Ganga @ Gungi the original tenant was Gair Morusi over suit property on payment of 1/3rd batai. She bequeathed her tenancy rights in favour of the applicants, As per the applicants version in fact Smt. Ganga @ Gungi was cultivating the suit property in the capacity of Basrey Malkan Bawajh Tasswe Malkiyat Khud and Bawajah Derina Kast and now they want to amend their pleading in this regard.

It is well settled that by way of amendment, a party cannot be permitted to take constructive pleas. In this case initially the Plaintiffs have set up a case claiming their predecessor-in-interest to be in permissive possession over suit property on 1/3rd batai. Now, they want to set up a case by way of proposed amendment that Smt. Ganga @ Gungi was occupancy tenant over the suit property for no rent more than land revenue. In the considered opinion of this Court by way of proposed amendment the applicant wants to take a different plea and wants to change the nature of the suit which cannot be allowed at this stage. Finding no merits, application stands dismissed.

It has been contended by learned Counsel for the Petitioner-Plaintiffs that amendment will not change the nature of the case and hence, learned trial Court has erred in declining the request for amendment of the plaint.

Law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004(1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

In view of the aforementioned facts, there is no force in the argument of learned Counsel for the Petitioner-Plaintiffs that the amendment of plaint will not change the nature of the case. Rather the aforementioned amendment will change the entire nature of the case, as earlier the plea of Petitioner-Plaintiffs was that they are in possession of the land as tenants/Gair Marusi on payment of 1/3rd batai and now they want to take the plea that they are in possession as occupancy tenants, without payment of any rent.

Hence, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

There is no merit in the present revision petition. The same is hereby dismissed.