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2001 DIGILAW 200 (JK)

Fatima v. Ali Mohd.

2001-09-12

MUZAFFAR JAN

body2001
1. Since the counsel for the petitioner inspite of notice is not present and the petition involves interpretation of questions of law, the same is taken up for final adjudication. 2. Revision petition has been submitted to set aside the order dated: 15-06-1999 passed by the 2nd Addl. Munsiff, Srinagar in the suit titled Fatima Vs. Ali Mohd Bhat and others. 3. Record of the trial court shows that plaintiff-petitioner filed suit for permanent injunction praying that the respondents may be directed not to cause interference in the land in her possession measuring 2 Kanals comprising under Khasra no. 126 and 129 situate at Iddgah, Srinagar. 4. Alongwith the suit an application for temporary injunction was also filed in which the trial court directed the non-applicants/ respondents not to interfere in the peaceful possession of the plaintiff-petitioner vide order dated: 13-08-1997. 5. The plaintiff-petitioner during the pendency of the proceedings submitted an application praying for amendment of the plaint on the grounds that since she has been dispossessed by the defendants-respondents therefore, she may be permitted to incorporate the relief of declaration and possession by amendment. This application dated: 08-07-1998 was considered by the trial court and after hearing the parties, the trial court refused the prayer to amend the plaint vide order dated: 15-05-1999. It is the validity of this order which has been challenged in the present petition. 6. Heard the leaned counsel for the respondents and perused the entire record. 7. From the perusal of the record of trial court and the leadings of the parties, it is manifestly clear that the present petitioner filed suit on 13-08-1997 for permanent injunction wherein she asserted that she was in peaceful possession and this position seems to have been protected by the order of interim relief granted by the trial court on 13-08-1997. The defendants-respondents filed written statement on 21-02-1998 where in they contested the petitioners suit be sides other grounds on the main ground that plaintiff was not in possession and did not have a prima facie case and could not be entitled to either relief for permanent injunction or temporary injunction. The application for amendment was submitted on 08-07-1998 i.e. after a period of nearly one year of the passing of the interim order dated: 13-08-1997, wherein the possession of the plaintiff-petitioner was protected under the Court order. The application for amendment was submitted on 08-07-1998 i.e. after a period of nearly one year of the passing of the interim order dated: 13-08-1997, wherein the possession of the plaintiff-petitioner was protected under the Court order. It does not appeal to reason that if the possession of the plaintiff-petitioner was already protected under the court order, where was the need for the plaintiff-petitioner to apply for permission to amend the plaint, without moving the trial court either for restoration of possession or for contempt of the Court order. On perusal of the record, it is manifestly clear that no petitioner for contempt or restoration of possession, during the period of nearly one year from the passing of the interim relief, on 13-08-1997 till the application for amendment was filed on O8-07- 1998. These circumstances seem to have been taken of by the trial Court while passing the impugned order. 8. The revenue record submitted with the plaint is silent about the possession of plaintiff on the suit land. It appears that if the plaintiff was not in possession of the suit property and did not incorporate the relief of declaration and possession at the time of filing the suit in the years 1997 which relief would be available to the petitioner, it can safely be held that the relief which was available at the time of institution of the suit was not included in the plaint and as such has been waived off by the petitioner. The impugned order which seems to have been passed strictly in accordance with law, does not for these reasons suffer from any infirmity or erroneous exercise of jurisdiction, warrants no interference. Admittedly, the law on the amendment has been relaxed to accommodate, to avoid mulitplity of litigation but in the process sight cannot be lost of circumstances where the amendments are sought only to take a chance in the litigation in order to keep the other side engaged for ulterior motive. In the case in hand since the order of the trial Court is found not to suffer from any legal infirmity, the order is upheld. The revision petition is dismissed. Record of the trial court be sent back forth with.