JUDGMENT
R.C. Jain, J.
1. These appeals arise from the judgment dated 31.8.2000 passed by the learned Additional District Judge, Delhi, and as the common questions of fact and law are involved in all these appeals, it is proposed to dispose of these appeals by means of this common order.
2. In short, relevant facts leading to the appeal are that the appellants herein had filed suits for perpetual injunction against the defendant/respondent Agriculture Produce and Market Committee (in short “APMC”) restraining them from dismantling and uprooting the railing put in front of their shops, with a view to construct wall blocking front doors of the said shops. In the suits, the appellants had averred that their ancestors were original residents of village Bharola and their houses and shops fall on the public way and they have a right of access to the highway which they have been enjoying for several years past but the respondents were denying their rights. The suits were defended by the respondent APMC, inter alia, on the grounds that the suit for permanent injunction was not maintainable and was barred by the provisions of Section 41 (h) of the specific relief Act. The learned trial court framed a preliminary issue “Whether the suit of the plaintiff is maintainable against the respondent in this present form”?
3. By order dated 25.7.1998, the learned trial court answered the suit issue in negative and held that the suit of the petitioner was not maintainable in its present form mainly for the reason that the petitioner had not filed suit for the relief of declaration enjoined by Section 34 of the Specific Relief Act and the suit for injunction in absence of relief for declaration was not maintainable. Aggrieved by the said order, the appellants filed the appeals but without any success the appeals were dismissed by means of impugned judgments.
4. I have heard the learned counsel for the parties at sufficient length and have given thoughtful consideration to their respective submissions. Before discussing the merits of the present appeals it is pertinent to note that soon after filing of these appeals, appellants filed application under Order 6 Rule 17 read with Section 151 CPC, praying for amendment of the plaint mainly to incorporate relief of declaration Along with perpetual injunction. It seems to be appropriate, if these applications are considered and disposed of first.
5. Appellants seek to amend the title of the suit as also paragraph 16 and 18 and relief clause contained in para No. 19 so as to incorporate the following additional facts:-
“That the cause of action arose 25 years back when the plaintiff started using the said highway and further accrued to the plaintiff on 3.4.1993 when the defendant dismantled some of the railings and threatened to dismantle the remaining railings, demolish the frond portions of the shops of the plaintiff and construct a wall blocking the fronts and the doors and windows of the said shop. The said threat is continuing. As a result the cause of action is arising on each and every day.”
That the suit is valued at Rs. 200/- for the purposes of court fee and jurisdiction for each relief of injunction and declaration on which requisite court fee has been paid.”
It is, therefore, prayed that this Hon’ble Court be pleased to pass in favor of the plaintiff and against the defendant a decree for declaration thereby declaring that the plaintiff has the legal right to run his shop and has access to the public highway starts from G.T. Karnal Raid and goes right up to New Azadpur Railway Station running along the boundaries of Abadi Deh of Village Bharola and New Subzi Mandi and the said public highway may kindly be declared as main road.”
It is, therefore, prayed that this Hon’ble Court be pleased to pass in favor of the plaintiff against the defendant a decree for perpetual injunction restraining the defendant from:
(a) dismantling the remaining railings fixed in front of the said shop of the plaintiff;
(b) demolishing the front portion or any other portion of the shop of the plaintiff; and
(c) constructing any wall in front of the said shop and doors and windows of the said shop.
Cost and other relief this Hon’ble Court deem fit and proper may also be awarded to the plaintiff.”
Above amendments are stated to be necessary and relevant to decide the real controversy between the parties and it is stated that all the relevant facts which would have entitled the appellants to the relief of declaration Along with perpetual injunction had already been averred in detail in their suits.
5. The application has been opposed by the respondent and a reply has been filed there by raising the objections that the amendment allowed at this belated stage would be beyond the period of limitation as per the appellants own showing them had the access/right to public highway for last several years and they had not cared to be vigilant enough to file the suit for declaration if they had any such right as claimed by them. It is, however, not disputed that the amendment can be allowed even at the appellate stage and lastly it is pleaded that in case the amendment is allowed that must be subject to imposition of heavy cost.
6. Learned counsel for the appellants strenuously argued that there has not been any adjudication of the dispute raised by the appellant in their suits and the suits have been dismissed on technical/legal pleas i.e. being barred by the provision of Section 41(h) of the specific relief Act, although the appellants had pleaded all requisite facts which would show that the appellants has vested right of access to the land appurtenant to their houses/shops. There appears to be considerable force in these submissions as the learned trial court while returning a finding on the preliminary issue about the maintainability of the suit has taken note of the pleadings as under:-
“Now turning to the pleadings of the parties, it has been mentioned in para 1 of the plaint that the plaintiff Nos. 1 to 4 and their ancestors were the original residents and Biswedars of village Bharolla, near New Sabzi Mandi, Azadpur, Delhi and they owned considerable lands and residential houses in the said village and that their houses are more that 60 years old.
It is further mentioned by the plaintiffs that about 25 years back the plaintiffs Nos. 1 to 4 and other owners of the aforesaid houses opened shops in their respective houses. It is also mentioned that plaintiff Nos. 5 to 24 are tenants in their respective shops and are lawfully caring on their business activities in these business shops. In para 6 of the plaint, it is mentioned that all the plaintiffs and other villagers passed over the public highway facing their houses for making purchases and use of facilities of Bank, post office etc. in the new Sabzi Mandi. it is also admitted in para 10 of the plaint that defendant constructed iron gridor, railings in front of their shops and the defendant now has started illegally and unauthorizedly the dismantling and uprooting of the said railings and hence, this suit. In view of the pleadings of the plaintiffs, I am of the considered opinion that the plaintiffs alleged the vesting of certain valuable rights of use and enjoyment of their premises for last several years but the defendants is adamant to deny this right/character of the plaintiffs by uprooting the railings in front of the houses/premises of the plaintiffs as alleged. In this view of the matter, I am of the view that the plaintiffs should have filed a suit for declaration as per mandate of Section 34 of Specific Relief Act, if the defendant was infact denying or was interested to deny their valuable rights/characters to the properties/premises under their occupations as alleged, and the plaintiffs could have asked for the consequential relief of injunction as well in that very suit. The plaintiffs have not filed the suit for declaration and they have filed a suit for perpetual injunction simplicitor and in my considered opinion the suit of the plaintiffs seems to be barred by the provisions of Section 41(h) of Specific Relief Act in the given facts and circumstances of this case.”
7. It is also pertinent to take note of certain observations by this Court in CR No. 5/95 between the parties decided on July 27, 2000:-
“The issue is not whether the land covered by the road belongs to petitioner but whether the road was a public pathway as asserted by respondents. So long as it remained to be determined by trial court, respondents interest was required to be portected or else they would be non-suited. Therefore, even going by the legal propositions pressed in service by Mr. Anand, survival of respondents’ suit deserved attention and an ad-interim injunction to restrain petitioner from raising a wall in place of iron-railing till the decision in the suit. There can be no two views that non-grant of such injunction would render respondents’ suit infructuous as found by Appellate court in its order which is affirmed. However, trail court is directed to expedite the trial of suit and to see it though within six months from receipt of this order. Revision Petition is accordingly dismissed.”
8. Learned counsel for the respondents on the other hand urged that the amendment if allowed would change the character of the suit, which should not be allowed once the suits, as well as the first appeal filed by the appellants herein have been dismissed. I do not see any merits in this contention, firstly, because it is well-settled that amendment of the pleadings can be allowed at any stage of the trial of the suit or appellate stage provided the amendment sought is necessary for the just and effective adjudication of the controversy between the parties and to avoid multiplicity of the proceedings. In the case, in hand as already noted that the appellants have pleaded all the relevant facts and circumstances which would have entitled them to maintain a suit for declaration beside that for perpetual injunction. In effect the suit could well be said to be a suit for declaration as well. However, since in the plaints there was no specific mention that the suit was for declaration also and no relief of declaration was claimed, the appellants have been unsuited on the ground that the suit was barred by the provisions of Section 41(h) of the Specific Relief Act. While there can not be a dispute to the preposition that once the relief of declaration was also available to the appellants, they ought to have claimed the same at the time of filing the suit for perpetual injunction.
9. Having considered the matter in its entirety, this Court is of the considered view that it will be just, proper, and necessary and expedient in the interest of justice to allow the amendment applications of the appellants so that the dispute and controversy raised in the present proceedings is finally adjudicated on merits. The applications under Order 6 Rule 17 CPC filed in these appeals are accordingly allowed, however, subject to payment of cost of Rs. 2,000/- in each appeal. The result of allowing the amendment is that the suits of the appellants will now be maintainable and have to be tried on merits. The matter is, therefore, remanded back to the trial court for further trial in accordance with law. Parties are directed to appear in the trial court on 4th October, 2001, to receive further directions in the matter.