Civil Revision No. 2768 of 2006
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 2768 of 2006
Date of decision: 12.08.2009
Lakmi and others
....Petitioners
versus
Karam Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. B.R. Vohra, Advocate,
for the petitioners.
Mr. Vikram Punia, Advocate,
for the respondent.
***
VINOD K. SHARMA, J.(ORAL)
This revision petition is directed against the order dated
17.4.2006, passed by the learned Additional District Judge, Sonepat,
vide which two applications moved by the plaintiff/respondent stand
allowed.
The plaintiff/respondent filed a suit seeking permanent
injunction, by pleading that he is owner in possession of the plot detailed
in para No. 1 of the plaint, by virtue of gift deed dated 18.4.1983 issued
by the Government of Haryana. It was alleged, that the
defendant/petitioners were interfering in his possession, therefore,
decree of permanent injunction was prayed for.
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The suit was contested by defendant/petitioners, wherein claim
of ownership and possession was denied. It was pleaded by the
defendant/petitioners that they were owner in possession of the plot in
dispute for the last 19 years, when their father Sh. Began was allotted the
said property by Sh. Mahabir , the then sarpanch of the village, in
presence of others. It was further pleaded by the defendant/petitioners,
that it was plaintiff/respondent, who tried to dispossess them on 6.5.1997
with the help of the local police, but he failed in his efforts.
The learned trial Court was pleased to frame the following
issues: –
“1. Whether the plaintiff is in possession of the
suit property? OPP
2. Whether plaintiff has no locus standi to file
the present suit? OPD
3. Whether the plaintiff has no cause of action to
file the present suit? OPD
4. Whether the suit is not maintainable in the
present form? OPD
5. Relief.”
The parties led evidence, and the learned trial Court dismissed
the suit, by holding that the plaintiff was not in possession of the suit
property, which was, in fact, in possession of the defendant/petitioners.
Issues No. 2 and 3 were not presses, whereas in view of the finding
recorded on issue No. 1, issue No. 4 was decided in favour of the
petitioners.
The plaintiff/respondent preferred an appeal, where he sought
recasting of issue No. 1 and also amendment of the plaint seeking
addition of para No. 1 in the prayer clause to the effect that if defendants
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succeed in dispossessing plaintiff illegally or forcefully or if the Court
comes to the conclusion that the plaintiff was not proved to be in
possession of the plot in dispute, decree for possession be granted in the
alternative.
The learned lower appellate Court allowed both the application
and framed the following additional issues: –
“1A. Whether plaintiff is owner in possession of the suit
property? OPP.
1B. Whether defendants are owners in possession of
the suit property due to their continuous
possession for the last 19 years which is alleged to
be without interruption, interference and hostile
to the knowledge of everybody including plaintiff
as alleged? OPD.”
Application for amendment was also allowed.
Learned counsel for the petitioners vehemently contends, that
the additional issues framed do not arise from the pleadings of the
parties, as the plaintiff only claimed relief of perpetual injunction, and
issue No. 1 in this regard was framed, but the plaintiff/respondent failed
to prove his possession. It is further the contention of the learned
counsel for the petitioner, that issue No. 1 was also not relevant, as the
question of title was not in dispute in a suit for possession, therefore,
was not to be adjudicated as to who was the owner. Whether the
petitioner/defendants perfected their title by way of adverse possession,
was also not in issue, in a suit for injunction.
There is force in this contention. Issue No. 1 took care of the
fact whether the plaintiff/respondent was the owner in possession. Once
his possession was not proved, the issue could not be reframed by the
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learned lower appellate Court nor was there necessity to frame additional
issue No. 1B, as the claim was not pressed by the defendant. The suit
filed was only for injunction and not for possession on the basis of
ownership. The order passed by the learned Additional District Judge,
framing additional issues deserves to be set aside. Ordered accordingly.
The learned counsel for the petitioner also challenges the order
vide which the plaintiff/respondent has been allowed to amend the
plaint.
The contention of the learned counsel for the petitioners is,
that by way of amendment, the plaintiff/respondent could not fill in
lacuna, as the suit filed by him was dismissed by the learned trial Court.
It is also contended by the learned counsel for the petitioners, that a suit
for injunction could not be converted into one for possession In support
of this contention, the learned counsel for the petitioners has placed
reliance on the judgment of this Court in Prem Chand Vs. Chetan Dass,
2006(1) RCR (Civil) 164, wherein this Court was pleased to lay down as
under: –
“7. Few of the principles established by various judicial
decisions in respect of amendment of pleadings are:
a) The parties should not be allowed to substitute
one cause of action or the nature of the claim for
another as claimed originally or should also not
be allowed to change the subject-matter or the
controversy in the suit;
b) The parties should not be allowed to introduce
by amendment an inconsistent or contrary plea
to negate the facts originally admitted though a
party may be allowed inconsistent plea on
admitted facts by way of amendment;
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c) The amendment should not cause prejudice to
the other side which cannot be compensated by
way of costs;
d) The parties should not be allowed amendment of
a claim or relief which is barred by law of
limitation when amendment is sought to be made
as it defeats a legal……………………………………….
of a party. However, this may be allowed only
in very exceptional circumstances when the facts
of the case so warrant.
8. Each case relating to the amendment has to be
decided on its own facts by applying the judicial
precedents which govern amendment of pleadings.
The principles are fixed but the application of the
same varies according to facts of each case. The
power is to be exercised by the Courts for the ends of
justice and to prevent the abuse of process of the
Court.
9. In the facts of the present case, it can be safely
inferred that the trial Court has clearly fallen in error
in allowing the amendment of the plaint tot he
plaintiff-respondent. The plaintiff was well aware of
the facts which are now sought to be incorporated in
the plaint and further the amendment completely
changes the nature of the suit from mandatory
injunction to that of possession in the present case.
The amendment causes prejudice to the rights of the
defendant-petitioner and had been filed at this belated
stage without any justified explanation.”
There is force in contention of the learned counsel for the
petitioners. The suit for injunction could not be changed into one for
possession, in absence of any allegation, that it was during the pendency
of the suit that the plaintiff/respondent was dispossessed.
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For the reasons stated, revision is allowed, impugned order is
set aside and both the applications moved by the plaintiff/respondent are
ordered to be dismissed.
Revision allowed.
(Vinod K. Sharma)
Judge
August 12, 2009
R.S.