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2000 DIGILAW 59 (HP)

MEGH RAM v. ONKAR CHAND

2000-03-28

M.R.VERMA

body2000
JUDGMENT M. R. Verma, J.: This second appeal has been preferred by the defendant-appellant (hereinafter referred to as the defendant) against the judgment and decree dated 28.5.1993 passed by the learned Addl. District Judge (I), Shimla, thereby affirming the judgment and decree passed by the learned Sub Judge, Rampur Bushahar, Distt. Shimla, decreeing the suit of the plaintiff-respondent (hereinafter referred to as the plaintiff") for mandatory injunction. 2. The facts of die matter, in brief, are that the plaintiff instituted a suit for mandatory injunction against the defendant directing him to withdraw himself alongwith his belongings and malva of the shed built on land comprising khewat No. l, khatauni No. l, Khasra No. 1326/191/1 measuring 5 biswas situate in village Khaneti Shilli Sadhoch, Teh. Kumarsain, Distt. Shimla (hereinafter referred to as the suit land) and to pay Rs.2000/- on account of losses and damages suffered form plaintiff. Case of the plaintiff, as made out in the plaint, is mat on being approached, the plaintiff granted licence to the defendant over the suit land permitting him to install sawing machine by providing a shed thereon for a period of 5 years. In lieu thereof, the defendant undertook to manage the entire adjoining land, house and orchard owned and possessed by the plaintiff situate in Bara Khaneti. It was agreed to between the parties that in case of defendant being negligent in the management of the plaintiffs aforesaid property, he would be liable to pay damages and losses suffered by the plaintiff and that the defendant would not get any adverse entries made regarding ownership and possession of the suit property. In the event of the defendants failure to perform his part of the contract, the plaintiff was entitled to revoke the licence after giving 15 days notice. In violation of the terms of the agreement, the defendant built two stalls over the suit land and also failed to look after the property of the plaintiff as agreed to, resulting in - damage to the grass and plants thereon. Consequently, plaintiff served the defendant with a notice terminating the licence and to pay damages. In reply, the defendant admitted the lapses on his part and promised to remit the amount of losses and damages suffered by the plaintiff and also agreed to vacate the suit property by 31.12.1983. Consequently, plaintiff served the defendant with a notice terminating the licence and to pay damages. In reply, the defendant admitted the lapses on his part and promised to remit the amount of losses and damages suffered by the plaintiff and also agreed to vacate the suit property by 31.12.1983. However, the defendant failed to surrender the possession and to pay a sum of Rs.2000/- by way of damages as claimed, hence the present suit. 3. The defendant contested the suit In the written statement, he took preliminary objections that the suit for more mandatory injunction is not competent and that the suit is not properly valued for purposes of court fee and jurisdiction. On merits, it has been claimed that during the 5 years terms of licence, the defendant had been making improvements and development in the land and orchard of the plaintiff and has installed a sawing machinery and a shed after incurring huge expenses and that no damage has been caused to the plaintiff by the imputed negligence of the defendant. The claim of the plaintiff to get the possession of that suit property has been denied, as not being genuine. Liability to pay the damages has also- been denied. 4. On the pleadings of the parties, the learned trial Judge framed the following issues: 1. Whether the suit for more mandatory injunction is not maintainable as alleged ? OPD. 2. Whether the suit is properly valued for the purposes of court fee and jurisdiction ? OPP. 3. Whether the defendant is the licence of the suit land on the terms and conditions as alleged ? OPP. 4. Whether the defendant has not fulfilled the conditions as alleged, if so, its effect? OPP. I 5. Whether plaintiff is entitled to recover Rs.2000/- as alleged ? OPD. 6. Relief. 5. Vide judgment dated 26.9.1988, the trial Court decided issue Nos. 2,3 and 4 in favour of the plaintiff. Issue No. 1 was decided against the defendant and issue No. 5 was decided against the plaintiff and as a result, the suit for mandatory injunction, as prayed for, was decreed, but for damages, H dismissed. 6. Feeling aggrieved by the judgment and decree for mandatory injunction, the defendant preferred an appeal which was heard and dismissed by the learned Addl. District Judge (I), Shimla. Hence the present appeal. 7. 6. Feeling aggrieved by the judgment and decree for mandatory injunction, the defendant preferred an appeal which was heard and dismissed by the learned Addl. District Judge (I), Shimla. Hence the present appeal. 7. I have heard the learned counsel for the parties and Lave also gone through the records. 8. Initially, the appeal was admitted on the following substantial questions of law: 1. Whether the grant of licence was for installation or executing a work of permanent character by incurring an expense in the execution of the said work, can such licence be revoked at the more will of the granter? Does that licence not become irrevocable under Section 60 of the Easement Act? 2. Whether the judgment and decrees passed by both the learned Courts below are vitiated due to mis-consideration of exhibit PW- 1/B which was the basis of the suit? 9. However, at the time of arguments, the learned counsel for the defendant urged that the learned lower appellate Court has wrongly and illegally rejected the applications moved before it by the defendant under Order 6 rule 17 read with Section 15 CPC for amendment of the written statement and under Order 41 Rule 27 read with Section 151 CPC for leading additional evidence based on subsequent events. These grounds, as orally sought to be raised, have already been taken in the memo of appeal, therefore, the learned counsel for the appellant was permitted to address arguments on the further substantial question of law as to whether the first appellate Court was justified in rejecting the said application of the defendant. 10. The defendant vide CMA No. l-S/6 of 1990 moved before the first Appellate Court sought the following amendment in the written statements: "That in any case the plaintiff is not entitled to revoke the alleged licence as the plaintiff himself has granted the land to the defendant for raising permanent structure. User of the land was ancillary to use the same by putting up permanent structure. The defendant in pursuance of the said agreement has raised the permanent structure by spending huge amount and in w.«sc the structure of the defendant is moved from the land, in question, the defendant is likely to suffer irreparable on the land in suit with the consent of the plaintiff. The defendant in pursuance of the said agreement has raised the permanent structure by spending huge amount and in w.«sc the structure of the defendant is moved from the land, in question, the defendant is likely to suffer irreparable on the land in suit with the consent of the plaintiff. The installing of the Sawing Machine and raising shed are permanent in nature; as such the plaintiff is estopped to file the present suit due to his own acts, deeds, conduct and acquiescance." 11. It was averred in the application that specific plea as per Section 60 of the Easement Act (hereafter referred to as the Act) could not be taken in the written statement whereas the entire evidence led by the defendant is that the plaintiff could not revoke the licence because the defendant had raised permanent structure thereon and there being no proper issue, proper evidence could not be led. Hence the prayer for amendment of the written statement. 12. The application was contested by the plaintiff on the ground that it sought to convert admission into denial and was contradictory and destructive of the case pleaded and proved by the defendant. 13. The lower Appellate Court dismissed the application on the ground that if allowed, it would cause total impairment of the earlier pleadings and evidence of the defendant and was thus impermissible. 14. The learned counsel for the defendant has contended that a legal plea was sought to be raised by the application in the written statement, therefore, being necessary for the proper and just decision of the case, ought to have been allowed. 15. It is well settled that some standard and principles which apply to the amendment of plaint cannot be strictly applied to amendment of the written statement. Amendment of written statement is, therefore, to be liberally considered keeping in view the conduct of the defendant and the prejudice to the plaintiff. It follows that amendment of a written statement seeking to add only new grounds of defence without displacing the complete basis of defence as in the written statement sought to be amended should be allowed. 16. Amendment of written statement is, therefore, to be liberally considered keeping in view the conduct of the defendant and the prejudice to the plaintiff. It follows that amendment of a written statement seeking to add only new grounds of defence without displacing the complete basis of defence as in the written statement sought to be amended should be allowed. 16. In the case in hand, it is specifically averred in the plaint that defendant had raised construction over the suit land and the defendant has also averred in the written statement that machine has been installed and shed has been constructed by him over the suit land by spending considerable amount. What he wants to add now by way of amendment of the written statement is that the licence can now not be revoked as it was given for raising permanent structure which he did with the consent of the plaintiff. Thus, the defence sought to be raised is of estoppel against the plaintiff and the licence having become irrevocable because of execution of work of permanent character after incurring expenses in executing such work. Evidently, the plea sought to be raised does not displace the basic defence as raised in the written statement sought to be amended. 17. The amendment prayed, therefore, is necessary for determining the real questions of controversy between the parties. 18. I am, therefore, of the view that the lower Appellate Court has wrongly dismissed the application of the defendant for amendment of the written statement. Accordingly, the order of the lower appellate Court dismissing the application of defendant for amendment of written statement (CMA No. l-S/6 of 1990) is set aside and the application (CMA No. l-S/6 of 1990) for amendment of the written statement is allowed subject to payment of costs of Rs.2000/- by defendant to the plaintiff. 19. Since the application for amendment has been allowed and the additional evidence will be relevant and material to prove the plea permitted to be added to the written statement, therefore, the order dismissing such application passed by the first Appellate Court is set aside. 20. In view of the grant of permission to amend the written statement, the case deserves to be remanded after setting aside the impugned judgment and decree and findings on other questions as formulated are not required. 21. 20. In view of the grant of permission to amend the written statement, the case deserves to be remanded after setting aside the impugned judgment and decree and findings on other questions as formulated are not required. 21. As a result, this appeal is allowed and the impugned judgment and decree are set aside. The case is remanded to the lower Appellate Court with the direction to re-admit the appeal against its original number and date and take the amended written statement on the record, afford opportunity to the plaintiff to file replication, if any, and then proceed to frame issues, take evidence that may be aduced by the parties on such issues and then to proceed to dispose of the appeal in accordance with law. 22. In view of the changed situation by amendment of written statement, the lower Appellate Court may pass appropriate orders on CMA No. 122- S/6 of 1992. 23. The parties, through their counsel, are directed to appear before the lower Appellate Court on 2.5.2000. Records of the Courts below be returned to the lower Appellate Court forthwith.