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2010 DIGILAW 270 (JK)

Shameema Akhter v. Ab. Jabbar Lone

2010-05-13

GH.HASNAIN MASSODI

body2010
1. The petitioner is aggrieved of order of Learned 3rd Additional Munsiff Srinagar, dated 18.5.2009 in an application for grant of permission to amend the plaint, whereby Learned Trial Judge has rejected the application and disallowed prayer for amendment of the plaint. 2. It appears that the petitioner on 28.5.2004 filed a Civil Suit against her father-respondent herein, pleading therein that out of funds organized by the petitioner, the respondent purchased a plot of land measuring 2-1/2 Kanals, comprising survey numbers, detailed in Para 11 of the plaint and thereafter made a gift of the purchased property in favour of the petitioner. The petitioner averred that she, being a Government Teacher, had the funds available from her monthly salary to finance the transaction. The petitioner complained that the respondent after his retirement, had started residing in a part of the purchased property and was interfering with her possession over the purchased property. The petitioner sought a decree of permanent injunction, perpertually restraining the respondent from causing any interference in the petitioners peaceful possession over the purchased property. 3. The petitioner later made an application for amendment of the plaint and sought, inter-alia, to implead the land broker, through whom, according to the petitioner, the transaction was made. The amendment application was dismissed vide order dated 06.05.2008 and a review petition filed by the petitioner to get the order, disallowing the amendment application, reviewed met the same fate. The petitioner, thereafter, on 18.5.2009 filed a fresh application for amendment of the plaint. The petitioner, this time, pleaded that there were some typographical errors and omissions in the plaint that had remained unnoticed and that the petitioner intended to rectify typographical errors. Though the petitioner in the amendment application did not seek permission to amend the relief clause in the plaint, yet in the proposed amended plaint, appended to the application for amendment, the relief of declaratory decree, declaring the petitioner owner of the property measuring 02 Kanals & 10 Marlas comprising survey No.2119/1591/630, Khewat No. 284 situated at Shams Abad, Bemina, was incorporated. The Learned Trial Judge vide order dated 18.5.2009 dismissed the application and disallowed the prayer for amendment of the plaint. The petitioner aggrieved of the said order has come up with present Civil Revision Petition. 4. Heard and considered. The Learned Trial Judge vide order dated 18.5.2009 dismissed the application and disallowed the prayer for amendment of the plaint. The petitioner aggrieved of the said order has come up with present Civil Revision Petition. 4. Heard and considered. The only reason for Learned Trial Judge to dismiss the application for amendment of plaint was that the typographical errors now projected by the petitioner existed to the knowledge of the petitioner and that the petitioner ought to have sought removal/rectification of the typographical errors, identified now, when the petitioner made the earlier application for amendment of plaint on 28.2.2008. Learned Trial Judge was also of the view that a closer look at the plaint revealed that no typographical errors as projected in the amendment application, were come across in the plaint. The application in the opinion of the Court below was bound to protract the proceedings. 5. Learned Counsel for the petitioner during the course of argument made a pointed reference to typographical errors apparent throughout the plaint. It appears that what is sought to be achieved through amendment is undoubtedly removal of the clerical errors, rectification whereof will impart sense and meaning to the averments that otherwise present ambiguous and confusing reading. Learned counsel for the petitioner, realizing that by incorporating a relief for declaratory decree in the relief clause of the plaint, the petitioner would be allowed to introduce a new case not set up in the plaint volunteers to delete the para as regards declaratory decree, proposed to be added to the relief clause, from the amended plaint and thus does not intend to amend the relief clause of the plaint. All other amendments, except amendment to para 2 of the plaint, are intended merely to remove the clerical errors and thus deserve to be allowed. It is pertinent to point out that the removal of clerical errors would be in the interests of justice as the amendments sought will impart clarity to the pleadings and help the Court to make a just disposal of the suit. The proposed amendments to the extent of removal of clerical errors, are not to change nature of the suit or help the petitioner set up a new case and the petitioner can be adequately compensated by costs. 6. The proposed amendments to the extent of removal of clerical errors, are not to change nature of the suit or help the petitioner set up a new case and the petitioner can be adequately compensated by costs. 6. So viewed the impugned order is set-aside and the petitioner allowed to incorporate proposed amendment in Para 3, 4, 5, 7, 9, 10, reflected in the proposed amended plaint subject to payment of Rs.1,000/- (Rupees one thousand) as costs to the respondent. The amendment to Para 02, replacing words "10 years" by "12 years" and the amendment to the "relief clause" having become unnecessary in view of the statement made by learned counsel for the petitioner, are disallowed and prayer for amendment of the plaint rejected to said extent. The petitioner shall file amended plaint within 15 days from the date the matter is listed for the first time before the Trial Court after receipt of record and the petitioner shall pay costs to the respondent within the said time frame. In the event petitioner fails to pay the costs as directed, the application for amendment shall stand dismissed and amendment disallowed. The Civil Revision Petition is disposed of accordingly. The record be sent down and the Civil Revision file consigned to records. The parties to appear before trial court on 28.05.2010.