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2001 DIGILAW 369 (HP)

BUDH RAM v. CHANDER KANT

2001-12-06

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J (Oral):- This revision petition under Section 115 of the Code of Civil Procedure (here-after referred to as the Code) is directed against the order dated 1.7.2000 passed by the learned Senior Sub Judge, Kullu wherebyan application under order 6 Rule 17 of the Code moved by the plaintiff/petitioner for amendment of the plaint has been dismissed. The relevant and material facts for the purpose of disposal of this petition are that the plaintiff/petitioner has instituted a suit for permanent prohibitory injunction restraining the respondents/defendants No. 1 to 8 from constructing any structure on any portion of the suit land, i.e. khasra Nos. 4614 and 4615, situate in Phati Jana, Mauja Nagar, District Kullu. As per the plaint, the plaintiff/petitioner along with proforma respondents/defendants is joint owner in exclusive possession of khasra No.4614 and khasra No.4615 is jointly owned and possessed by the plaintiff/petitioner and others. The respondents/defendants No. 1 to 8, however, intended to construct a Pucca structure on the suit land on a valuable portion thereof, hence the suit. 2. The respondents/defendants have filed written statement and contested the suit. Before filing replication, the plaintiff moved an application. Under Order 6 Rule 17 of the Code for amendment of the plaint. By such amendment the plaintiff/petitioner wants to claim relief of possession by amending the prayer clause and the heading of the plaint. The amendment has been prayed for on the ground that respondents/defendants No.l to 8 on 20.4.1999, i.e. after the institution of the suit, had installed and set up a saw-mill on khasra No.4614 which was earlier installed on khasra No.4617 and, thus, have trespassed into the suit land. The application was resisted by the respondents/defendants and was dismissed by the learned trial Judge by the impugned order. 3. I have heard the learned counsel for the parties and have also gone through the record. 4. The grounds for dismissal of the application which have weighed with the learned trial Judge are that the plaintiff/petitioner had not denied/controverted the averments made by the respondents/defendants in the written statement by filing replication nor he has filed any affidavit in support of the allegation that the saw-mill was installed during the pendency of the suit. 4. The grounds for dismissal of the application which have weighed with the learned trial Judge are that the plaintiff/petitioner had not denied/controverted the averments made by the respondents/defendants in the written statement by filing replication nor he has filed any affidavit in support of the allegation that the saw-mill was installed during the pendency of the suit. Therefore, in the absence of the affidavit the contention of the respondents/defendants that the industrial unit had been installed in khasra No.4614 since the year 1977 has to be believed It has further been observed that "it is quite clear that installed unit of respondents/defdts. No.l to 8 has been in existence on khasra No.4614 since 1977." It is, thus, clear that instead of appreciating/considering the application for amendment strictly within the scope of Order 6 Rule 17 of the Code and as per the guidelines for allowing or disallowing the amendment of pleadings as laid down by the various High Courts including this Court and the Honble Apex court, the learned trial Judge virtually decided the application after coming to a conclusion that the amendment sought to be made is factually incorrect. While considering an application under Order 6 Rule 17 pf the Code, the Court cannot decide about the falsity or correctness of the amendment sought to be made. The main consideration which must weight with the Court in allowing or disallowing an application for amendment is whether such amendment is necessary for just and final determination of the controversy between the parties or not. The amendment as prayed for, undoubtedly and indisputably, is necessary for just and final determination of the controversy between the parties. As per the averments in the application the cause of the plaintiff/petitioner to move the application for amendment has arisen during the pendency of the suit, therefore, the alternative prayer for possession could legitimately be allowed to be introduced in the plaint by way of amendment. 5. For the reasons stated here-in-above, the learned trial Judge had proceeded to dismiss the application on illegal and irrelevant considerations and thus exercised the jurisdiction, which vested in him, illegally, therefore, the impugned order cannot be sustained. 6. As a result, this revision petition is allowed. The impugned order is set aside and the application of the plaintiff/petitioner for amendment of the plaint is allowed. No order as to costs. 7. 6. As a result, this revision petition is allowed. The impugned order is set aside and the application of the plaintiff/petitioner for amendment of the plaint is allowed. No order as to costs. 7. The parties, through their learned counsel, are directed to appear in the trial Court on 8.10.2001.