J. M. KAMALPASHA v. CHAIRMAN, DISTRICT WAKF COMMITTEE KARNATAKA WAKF BOARD, HASSAN
1988-07-08
M.P.CHANDRAKANTARAJ
body1988
DigiLaw.ai
CHANDRAKANTHARAJ, J. ( 1 ) THIS matter coming up for admission after notice to respondent who has remained absent and unrepresented though served is disposed of by the following order. ( 2 ) THE revision petitioner presented o. S. NO. 75/1983 in the Court of the Munsiff, hassan, seeking inter alia, a permanent injunction restraining Karnataka Wakf Board from in any way interfering with his peaceful possession and enjoyment of the suit schedule property. He pleaded that he is in possession of the suit schedule property having purchased the same under the sale deed No. 2515 dated 4-7-1972 from one khatumbi and Jaibunnisa. However, by LA. No. 3 he sought an amendment to para-graph-2 of the plaint deleting "sale deed No. 2515 dated 4-7-1972" and in its place adding that the purchased the same on 9-11-1970 under a sale deed and his father Jaffer mohiddin purchased on 4-7-1962 by a sale deed and the same has been in his possession and enjoyment. The plaintiff and his father have since they purchased, for more than 12 years been in enjoyment of the property". That amendment was resisted on the ground that the very source of title was sought to be altered by the present amendment and therefore the same should not be permitted as it changed the cause of action as well as the nature of the suit. ( 3 ) THE trial Court acceded to that contention of the defendant and dismissed the amendment application. Therefore, the present revision petition. ( 4 ) IN this Court, it is contended by Mr. G. S. Visveswara, learned Counsel appearing for the petitioner, that the amendment sought was only a formal amendment seeking to rectify an error in pleading. He said that by mistake the sale deed was referred to as bearing No. 2515 dated 4-7-1972 and the present amendment sought merely to correct it. In other words, the thrust of the argument is that the source of title now claimed is a sale deed in favour of the plaintiff in 1970 and an earlier sale deed in favour of his father in 1962, and beyond that there is no other change indicated in the amendment and therefore neither the nature of the suit nor the cause of action has been altered. It is difficult to accede to that contention.
It is difficult to accede to that contention. In the first pleading there was no mention about the parties having enjoyed the property as owners thereof in possession for more than 12 years which is now sought to be inserted. It was argued, there was a mistake by the court below in holding that the nature of the suit was altered by the ground prepared for plea of adverse possession even if the title based on sale deed was defeated. ( 5 ) THE approach made by the trial Court is not in conformity with the decision of the supreme Court in the case of Mis Ganesh trading Co. , v Moji Ram [a. I. R. 1978 S. C. 484]. Amendment must be permitted whether it is in respect of the plaint or the written statement as a matter of course if the amendment only seeks to correct a clerical error or the mistake, mis-statement of fact or is amplification of what has already been stated. It is only when the nature of the suit or the cause of action is changed or that defence is prejudiced by permitting the amendment then the amendment should be refused. ( 6 ) IN the instant case, the plaintiff has only sought bare injunction restraining defendant- Wakf Board from interfering with his possession and enjoyment of the suit schedule property. He has not sought for declaration of his title to the property. He has merely mentioned that he claims title through a particular sale deed of the year 1972. The purport of the amendment sought in LA. 3 was to rectify that error and claim source of title to two suit sale deeds one in favour of the plaintiff in the year 1970 and another in favour of the plaintiffs father in the year 1962. How that changes the nature of the suit as concluded by the trial Court is beyond my imagination. The plaintiffs apprehension was that if he did not correct by an amendment the mistake made by reference to a sale deed of 1972, he would have been precluded from leading evidence contrary to that plea. Therefore, the amendment sought was a mere formal one enabling him to adduce evidence of what his source of title and therefore perhaps evidence of possession and nothing more.
Therefore, the amendment sought was a mere formal one enabling him to adduce evidence of what his source of title and therefore perhaps evidence of possession and nothing more. That would not in any way prejudice the case of the defendant whatever that may be. ( 7 ) UNDOUBTEDLY, respondent being in occupation for more than 12 years is a plea which was something which was not pleaded originally which is neither attributable to over-sight nor to a mistake. Therefore, if at all there should be any objection it could only be to that portion and no more. ( 8 ) IN that view of the matter, this revision petition must succeed to the extent that the plaintiff is permitted to amend the plaint to trace his source of title to the two sale deeds of the year 1962 and 1970 executed in favour of his father and himself respectively. All other pleadings mentioned in the amendment shall be ignored and the amendment permitted to the extent indicated. ( 9 ) ACCORDINGLY, this petition is allowed to the limited extent indicated : No costs. --- *** --- .