Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 399 (JK)

Kartar Singh v. Raghubir Singh

2020-08-18

SANJEEV KUMAR

body2020
ORDER : Sanjeev Kumar, J. 1. The instant revision petition filed in terms of Section 115 of the Code of Civil Procedure is directed against order dated 08.09.2014 passed by learned Munsiff, Basohli (hereinafter referred to as "the trial Court"), whereby the application filed by the petitioner/plaintiff under Order-6 Rule-17 for amendment of the plaint has been rejected. 2. It is contended that the petitioner has filed a suit for declaration for declaring the will deed allegedly executed on 21.12.1983 as null and void and also sought a decree of permanent prohibitory injunction restraining respondent No. 2 (defendant No. 1 in the suit) from making any kind of interference or altering/changing the nature of the suit property. It is urged that in the plaint the petitioner has specifically averred that he is in possession of the suit property and apprehends his dispossession at the hands of defendants/respondents. The respondents have also filed their written statements before the trial Court and have taken the plea that it is not the petitioner but the respondents who are in actual physical possession of the suit property. It appears that during pendency of the suit the petitioner realizing that his suit for declaration and injunction without claiming the relief of possession may not be maintainable, filed an application in terms of Order 6 Rule 17 seeking permission of the Court to amend the suit so as to claim the relief of possession. 3. The application was resisted by the respondents taking the plea that allowing amendment would enable the petitioner to change the complexion of the suit from declaration and injunction to the suit for possession and which course was not permissible in law. 4. The trial Court after hearing learned counsel appearing for the parties came to the conclusion that the petitioner has not placed on record any specific proof that he has been dispossessed from the suit property during pendency of the suit. The trial Court after returning the aforesaid findings of fact dismissed the application seeking amendment of the plaint. 5. Having heard Mr. Raghu Mehta, learned counsel for respondent No. 1, and perused the record, I am of the view that the trial Court has clearly exceeded its jurisdiction and decided an issue of fact in an application for amendment of the plaint. 5. Having heard Mr. Raghu Mehta, learned counsel for respondent No. 1, and perused the record, I am of the view that the trial Court has clearly exceeded its jurisdiction and decided an issue of fact in an application for amendment of the plaint. Needless to say that while disposing of interlocutory applications filed by the parties during course of the suit including application seeking amendment of the pleadings, the Court is not required to determine the issues of fact. Whether plaintiff is in possession or it is defendant who is in possession is a question of fact, which needs to be gone into during the course of trial. From a perusal of the pleadings of the parties, it clearly transpires that the petitioner claiming to be in possession of the suit property has filed a suit for declaration and permanent prohibitory injunction. 6. The respondents in their written statements have contradicted the plea of the petitioner that he is in possession of the suit property and have clearly stated that the suit property is in actual physical possession of the respondents. If that be the position, it is well within the right of the petitioner to amend his suit and claim possession lest his suit may not be maintainable for want of claiming possession. It is well settled that suit for declaration simpliciter is not maintainable, if consequential relief of possession is not claimed in a situation where party seeking declaration is out of possession of the suit property. 7. This defect in the constitution of the suit is not fatal and can be cured by making appropriate amendment in the plaint. If, one were to assume that the petitioner was not dispossessed from the suit property during pendency of the suit but was never in possession thereof, even in that eventuality, he would be entitled to seek amendment of his plaint and pray for relief of possession consequent upon declaration claimed by him in the suit. 8. It may be noted that in view of the amendment to Section 115 of the Code of Civil Procedure effected in the year 2009, revision against an interlocutory order, as the impugned order is, is not maintainable. 8. It may be noted that in view of the amendment to Section 115 of the Code of Civil Procedure effected in the year 2009, revision against an interlocutory order, as the impugned order is, is not maintainable. However, looking to the fact that the trial Court has exercised the jurisdiction not vested in it and has passed the impugned order, which has resulted in serious miscarriage of justice, I deem it fit and appropriate and in the interest of justice to invoke the supervisory jurisdiction vested in this Court by virtue of Article 227 of the Constitution. The trial Court was not supposed to determine the issue of fact while deciding the application for amendment. 9. For the foregoing reason, this petition is allowed and the order impugned is set aside. Application filed by the petitioner seeking amendment of his plaint is allowed. The trial Court shall proceed in the matter after putting the parties to notice and providing adequate opportunity to the petitioner to file amended plaint.