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1997 DIGILAW 28 (HP)

VIRENDER SINGH v. BHAG CHAND

1997-02-27

SURINDER SARUP

body1997
JUDGMENT Surinder Sarup, J (Oral) :- The facts giving rise to the revision are that the plaintiff has filed a suit for prohibitory injunction restraining the defendants from interfering in their possession of the suit land/property. During the pendency of the suit before the trial Court, an application under Order 6 I Rule 17 C.P.C. seeking leave to amend the plaint and to seek the relief of decree of possession of the suit land, as an alternative to, relief of prohibitory, injunction already sought was moved by the plaintiff. Reply has been filed to the said application. The learned trial Court heard the arguments. 2. It allowed the amendment and in view of this court rightly because as per the latest view on the subject as enunciated right upon the Apex Court, the Court should be liberal while allowing the amendments unless such an amendment causes serious prejudice to the opposite parries who cannot be compensated by an order of costs. In the present case, these two bars are not existing. 3. However, it has been forcibly contended by Shri Rajeev Mehta learned counsel for the plaintiff-petitioner that the prayer for leading evidence in support of the amendment whereby a decree for possession has also been sought, illegally declined by the learned trial Court. In the view of this Court, j there is force in this argument. The reason given in the impugned order for I refusing permission to lead evidence is perfunctory. In the view of this Court, it is no reason at all. 4. It is not only necessary but logical that when an amendment of the pleadings is allowed, the party concerned must be given an opportunity to lead evidence in support of the amendment as well as the opposite party will have full opportunity to lead evidence in rebuttal. In the view of this Court, the learned trial Court has gravely erred and has acted material irregularity in refusing the prayer for leading the evidence in support of the amendment. 5. In fairness to the respondents No. l, 2 and 4 to 9, a reply has been filed by them. In para -1, they have in substance opposed the amendment. This plea cannot be allowed as they have not challenged the order of the trial Court allowing the amendment. Similar is their plea in para-2. 5. In fairness to the respondents No. l, 2 and 4 to 9, a reply has been filed by them. In para -1, they have in substance opposed the amendment. This plea cannot be allowed as they have not challenged the order of the trial Court allowing the amendment. Similar is their plea in para-2. In fact, there is nothing in the reply which would have the effect of opposing the prayer in support of the amendment. The order is., therefore, illegal and cannot be sustained. 6. In fairness to the learned counsel for respondent No.3, it has been urged by him that while leading the evidence, the plaintiff may not be allowed to fill up and gaps, defects and locunae in his evidence. The trial court will take particular notice of this aspect and not allow the plaintiff to setup a new case altogether different then the one taken up in the plaint. 7. For the reasons recorded above, this revision petition is allowed and the impugned order is set aside. The plaintiff is permitted to lead relevant evidence in support of the amendment for seeking a decree for possession. The respondents will also be allowed in sufficient opportunity to lead evidence in rebuttal. If need be, the trial Court, after applying its mind may frame issues through as regards this aspect of this case. The parties through their learned counsel are directed to appear before the trial Court on 27.3.1997. There will be no order as to costs.