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2008 DIGILAW 113 (PNJ)

Karnail Singh v. Kabul Singh

2008-01-18

RAJIVE BHALLA

body2008
Judgment Rajive Bhalla, J. 1. Prayer in this revision petition is for setting aside the order, dated 5.10.2006, passed by the learned Civil Judge (Junior Division), Dasuya, dismissing an application for amendment of the plaint, by adding the relief of mandatory injunction. 2. Counsel for the petitioner submits that the petitioner was dispossessed by the respondent, during the pendency of the suit. He, therefore, filed an application for restoration of possession, which was allowed, vide order, dated 20.2.2004. In a revision, namely, CR No. 482 of 2005, filed by the respondent, though the order, dated 20.2.2004 was affirmed but as the respondent was in possession, the learned trial Court was directed to conclude the trial by granting limited opportunities to lead evidence. 3. It is submitted that the petitioner filed an application for amendment of the plaint by adding a prayer for grant of the relief of a mandatory injunction directing the respondent to deliver possession. The application has been dismissed by observing that the petitioner has failed to establish the date of his dispossession, the amendment sought would alter the nature of the suit, and the prayer for restoration of possession has become time barred. 4. Counsel for the respondent, however, submits that the impugned order does not suffer from any error. The petitioner has failed to establish the date of his dispossession and the learned trial Court, therefore, rightly dismissed the application. It is asserted that the grant of the amendment prayed would alter the nature of the suit from one for grant of a permanent injunction to one for grant of a mandatory injunction. It is, therefore, prayed that the revision petition be dismissed. 5. I have heard counsel for the parties and perused the impugned order, as also the order, passed in CR No. 482 of 2005. 6. Admittedly, the learned trial Court directed restoration of possession to the petitioner, vide order dated 20.2.2004. This order was impugned, by the respondent in CR No. 482 of 2005. Vide order, dated 29.8.2006, the revision petition was disposed of in the following terms: After hearing learned Counsel for the parties and going through the order dated 20th February, 2004, I find that the trial Court has come to the conclusion that the plaintiff-respondent in this revision petition, was forcibly evicted from the shop in dispute after filing of the suit. It is in these circumstances that the petitioner was directed to hand over the possession of the shop to the plaintiff and also further restrained from interfering in his peaceful possession. It is, however, now the admitted case of the parties that the petitioner is in possession of the shop. Under these circumstances, I consider it expedient to expedite the trial of the suit. 7. It is, thus, apparent that the finding that the petitioner was dispossessed, during the pendency of the suit, was affirmed. The trial Court, therefore, had no jurisdiction, whether in fact or in law, to pass an order in abject disregard to this Courts order, as reproduced herein above. The trial Court, while asserting that the petitioner had failed to establish the date of dispossession and, therefore, his consequent dispossession, in essence, sought to record a finding different from the one affirmed by this Court. 8. The trial Court also committed an error of jurisdiction by loosing sight of the fact that where a party is dis-possessed, during the pendency of a suit, it is the bounden duty of the Court, even where no amendment is sought, to consider and grant the relief of possession, where such a prayer is raised and the facts pertaining thereto are established. The trial Court, on the other hand, proceeded to incorrectly hold that the amendment could not be allowed, as it would alter the nature of the suit and the relief of restoration of possession had become time barred. The aforementioned findings were unwarranted in the facts and circumstances of the present case. I am satisfied that the learned trial Court committed an error, in the discharge of its jurisdiction. Consequently, this revision petition is allowed, and the order, dated 15.10.2006 is set aside. The amendment prayed for is allowed. Parties are directed to appear before the trial Court on 25.2.2008. The petitioner shall file an amended plaint within a week thereafter. The trial Court shall proceed to adjudicate the suit, in accordance with the directions issued in the order dated 29.8.2006, passed in CR No. 482 of 2005.