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2005 DIGILAW 375 (HP)

BAR CHAND v. HARKALI

2005-10-05

V.M.JAIN

body2005
JUDGEMENT V.M. Jain, J.: This petition under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner against the order dated 9.8.2005 passed by the trial Court, dismissing the application of the plaintiff under Order 6 Rule 17 CPC for the amendment of the plaint. 2. The facts which are relevant for the decision of the present petition are that Bar Chand plaintiff had filed a suit for permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiff in the suit land and for declaration to the effect that the revenue entries showing defendants No.2 and 4 as occupancy tenants over the suit land were illegal and void and not binding against the rights of the plaintiffs. In the suit in was alleged by the plaintiff that he was owner in possession of the suit property, even though in the revenue record the plaintiff was recorded owner to the extent of one half share in the suit land, yet he was in possession of the entire land in dispute, inasmuch as one Narainu had delivered the possession of the suit land to the plaintiff in the year 1977 and subsequently and Narainu had expired. It was alleged that after the death of Narainu, defendants No.2 and 4 had started interfering in the possession of the plaintiff. It was alleged that the adjoining land was also owned and possessed by the plaintiff and that the land was recorded in the ownership of the plaintiff alongwith Amar Singh and Dhian Singh but they never occupied the suit land and had no concern with the land in dispute. It was alleged that defendant No.1 having no concern with the suit land had started digging over the land by trespassing into the same and that defendant No.1 in collusion with defendants No.2 and 4 was trying to change the nature of the land in dispute, even though defendant No.1 and defendants No.2 and 4 had no right, title and interest in the suit land. It was further alleged that the revenue entries showing defendants No.2 and 4 in possession of the suit land was illegal and void inasmuch as defendants No.2 and 4 were never inducted as tenants over the suit land. It was further alleged that the revenue entries showing defendants No.2 and 4 in possession of the suit land was illegal and void inasmuch as defendants No.2 and 4 were never inducted as tenants over the suit land. It was accordingly prayed that the defendants be restrained from interfering in the possession of the plaintiff over the suit land and a decree for declaration be also passed to the effect that the revenue entries showing defendants No.2 and 4 as occupancy tenants over the suit land were illegal and void. The suit was contested by the defendants. 3. During the pendency of the suit, the plaintiff filed an application under Order 6 Rule 17 CPC seeking to amend the plaint so as to incorporate therein the relief for a decree for mandatory injunction directing defendant No.1 to remove the unauthorized construction raised over the suit land by demolishing the same and restore the suit land to its original position and a decree be also passed directing defendant No.1 to handover vacant and peaceful possession of the land measuring 4 biswas on which defendant No.1 had raised construction during the pendency of the suit. It was alleged that during the pendency of the suit and inspite of the orders having been passed by the Court on 6.7.1999 in the application under Order 30 Rules 1 and 2, CPC and the said order having been confirmed on 2.11.2000, defendant No.1 had forcibly encroached upon the suit land and had constructed two rooms alongwith kitchen over a part of the suit land. It was alleged that the said act had been committed by defendant No.1 after the filing of the suit and accordingly it had become necessary for the plaintiff to amend the plaint and to seek appropriate relief from the Court. It was alleged that besides, making the amendment in the heading of the plaint, the plaintiff may also be allowed to amend the plaint so as to amend the relief clause so as to claim decree for mandatory injunction and also for possession. 4. The aforesaid application of the plaintiff under Order 6 Rule 17 CPC was contested by the defendants by filing the reply controverting the allegations contained in the application. 4. The aforesaid application of the plaintiff under Order 6 Rule 17 CPC was contested by the defendants by filing the reply controverting the allegations contained in the application. It was denied that defendant No.1 had forcibly encroached upon the suit land and/or had constructed two rooms alongwith a kitchen over a part of the suit land during the pendency of the suit despite the injunction order passed on the application under Order 39 Rules 1 and 2, CPC. It was alleged that by seeking amendment to the plaint the plaintiff was trying to change the nature of the suit which would cause prejudice to defendant No.1 and other defendants. 5. After hearing both sides and perusing the record, the learned trial Court dismissed the application of the plaintiff under Order 6 Rule 17 CPC vide order dated 9.8.2005. Aggrieved against the same, Bar Chand plaintiff filed the present petition under Article 227 of the Constitution of India. 6. Notice was ordered to the respondents and records were also requisitioned. 7. After hearing the learned counsel and perusing the record, in my opinion, the present petition must be allowed, order dated 9.8.2005 passed by the trial Court must be set aside and the application of the plaintiff under Order 6 Rule 17 CPC, seeking amendment of the plaint must be allowed. 8. As referred to above, the plaintiff had filed the suit for permanent prohibitory injunction for restraining the defendants from interfering in the possession of the plaintiff over the suit land and also seeking declaration about the revenue entries in favour of the defendants being illegal and void. The suit was contested by the defendants. During the pendency of the suit, the plaintiff had filed an application under Order 6 Rule 17 CPC alleging therein that during the pendency of the suit defendant No.1 had encroached upon the suit land and had raised construction over a part of the suit land, despite the injunction orders passed by the i trial Court. With these allegations the plaintiff wanted to amend the plaint so as to claim the relief of mandatory injunction and for possession, which relief was necessitated on account of the changed circumstances which had taken place after the filing of the suit. With these allegations the plaintiff wanted to amend the plaint so as to claim the relief of mandatory injunction and for possession, which relief was necessitated on account of the changed circumstances which had taken place after the filing of the suit. Even though, the defendants had contested the application and had denied having taken possession of the suit land and/or having raised construction over any part of the suit land during of the suit despite the injunction orders passed by the trial court, yet, in my opinion, keeping in view the facts and circumstances of the present case, it was a fit case where the trial Court ought to have allowed the plaintiff to amend the plaint so as to incorporate, the aforesaid allegations and the amendment to the title of the suit as also the relief clause. This is especially so when according to the plaintiff, the necessity of amending the plaint had arisen on account of the subsequent events which had taken place after the filing of the suit and prayer for mandatory injunction and possession could not be made at the time of the filing of the suit. Keeping in view the facts and circumstances of the present case, in my opinion, the learned trial Court ought to have allowed the plaintiff to amend the plaint rather than dismissing the application under Order 6 Rule 17 CPC. This is especially so when the amendment sought by the plaintiff in the plaint was only formal in nature and was necessitated on account of the subsequent events. I am further of the opinion that the trial Court was not required to consider the correctness of the allegations made by the plaintiff in the application under Order 6 Rule 17 CPC at this stage, inasmuch as the same is to be gone into by the court at the conclusion of the trial. This is especially so when the plaintiff in the application had specifically pleaded that defendant No.1 had taken forcible possession of the suit land and had raised construction over a part of the suit land after the filing the suit, despite the injunction orders passed by the Court and that it was only "recently" that defendant No.1 had forcibly encroached upon the suit land and had raised construction over a part of the suit land. It appears that the learned trial Court lost sight of the fact that as per the allegations made in the application.. under Order 6 Rule 17 CPC it was only "recently" during the pendency of the suit/ that defendant No.1 had allegedly encroached upon the suit land and had raised} construction over a part of the suit land. That being so, in my opinion, there was no bar in allowing the plaintiff to amend the plaint under Order 6 Rule 17 CPC, even if the trial of the suit had commenced, when the present application was filed. 9 For the reasons above, the present petition is allowed, order dated 9.8.2005 passed by the learned trial Court is set aside and the application under Order 6 Rule 17 CPC filed by the plaintiff is allowed with no orders as to costs. 10. Parties through their counsel are directed to appear before the trial Court on 21st November, 2005 for further proceedings in accordance with law. Since the trial Court record was summoned by this Court, office is directed to return the record to the trial Court forthwith alongwith a copy of this order for information and strict compliance.