C.R. No.6335 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.R. No.6335 of 2008
Date of decision:17.12.2009
Gurmukh Singh .......Petitioner
versus
Gram Panchayat, Kachhwa ....Respondent
Coram:- HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr. J. S. Saneta, Advocate for the petitioner.
Mr. Nonish Kumar, ADvocate for the respondent.
L. N. MITTAL, J (ORAL)
Plaintiff Gurmukh Singh has filed this revision petition
under Article 227 of the Constitution of India assailing order dated
20.10.2008 (Annexure P-6) passed by learned Additional Civil Judge
(Senior Division), Karnal thereby dismissing the plaintiff’s application
for amendment of plaint.
The plaintiff filed suit against respondent-Gram
Panchayat for permanent injunction seeking to restrain the defendant
from digging out/constructing Nala (drain) in suit plot of the plaintiff.
By way of amendment application, the plaintiff wanted to
plead that during the pendency of the suit and in spite of temporary
injunction order, Sarpanch of defendant-Gram Panchayat along with
her husband and two members of Panchayat forcibly dug out and
constructed Nala/drain in the suit plot and also illegally and forcibly
damaged one room on eastern side of the plot. The plaintiff allegedly
C.R. No.6335 of 2008 -2-
made complaints to the police, but his signatures were obtained on
blank papers in police station and also in the office of Block
Development Officer. The plaintiff, therefore, wanted to also seek
relief of mandatory injunction directing the defendant to remove the
construction of Nala/drain and to restore the room of the plaintiff.
Stand of the defendant in the written statement was that
on 13.05.2000, on demarcation of Phirni of the village, it was found
that some villagers including the plaintiff had encroached upon land
of Gram Panchayat. For the benefit of public at large, the Gram
Panchayat wanted to construct Nala over the disputed site to solve
the problem of drainage of dirty and rainy water. Nala in the suit land
was constructed by the respondent much prior to the filing of the suit
and with the consent of the plaintiff.
In reply to amendment application, stand taken in the
written statement was reiterated. Allegations of the plaintiffs were
controverted. It was also alleged that the suit has become
infructuous.
Learned trial Court vide impugned order dismissed the
plaintiff’s application observing that if amendment sought by the
plaintiff was allowed, it would change the very nature of the suit
because suit was pending since the year 2006 and encroachment
had been removed way back before filing of suit. It was also
observed that as per demarcation report, encroachment by the
plaintiff on panchayat land is proved. It was also observed that
plaintiff’s version that Sarpanch of the Gram Panchayat illegally
encroached on the plaintiff’s land and raised construction of drain is
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not correct.
I have heard learned counsel for the parties and perused
the case file.
Learned counsel for the petitioner vehemently contended
that the petitioner had to seek amendment of plaint in view of
subsequent events which took place during the pendency of the suit.
On the other hand, learned counsel for respondent vehemently
contended that trial Court has recorded a finding that the plaintiff had
encroached upon the land of the defendant and drain had been
constructed prior to the filing of the suit.
I have carefully considered the rival contentions. The
approach of the trial Court in passing the impugned order is
completely illegal and unsustainable. Without recording evidence, no
finding could be recorded merely on the basis of demarcation report
that the plaintiff had encroached upon the land of Gram Panchayat
nor any finding could be recorded that the Nali stood constructed
prior to the filing of the suit. On the other hand, after proposed
amendment is allowed and evidence is led by the parties, only then
the trial Court can arrive at a conclusion as to whether the Nali was
constructed prior or subsequent to the filing of the suit. The
proposed amendment is sought on the basis of subsequent events
which allegedly took place during the pendency of the suit. Mere
allowing of proposed amendment in the plaint would not mean that
the plaintiff’s version has been accepted or held proved. It would
only enable the plaintiff to lead evidence in support of the said
version. Even after amendment is allowed, the plaintiff has to prove
C.R. No.6335 of 2008 -4-
the averments which he wants to make by way of amendment.
In view of the aforesaid, the instant revision petition is
allowed and impugned order dated 20.10.2008 (Annexure P-6)
passed by learned Additional Civil Judge (Senior Division), Karnal is
set aside and plaintiff’s application for amendment of plaint is
allowed, subject to payment of Rs.2000/- as costs precedent.
( L. N. MITTAL )
JUDGE
17.12.2009.
A.Kaundal