Bathinda Development Authority (BDA) vs Hardam Singh

L.N. Mittal, J.—Defendant Bathinda Development Authority (BDA) has filed this revision petition under Article 227 of the Constitution of India assailing order dated 03.05.2013 (Annexure P-1) passed by the trial court, thereby allowing application (Annexure P-4) filed by respondent-plaintiff Hardam Singh for amendment of his plaint (Annexure P-2). Plaintiff in the suit alleged that he is co-sharer in possession of the suit land. Plaintiff sought permanent injunction restraining the defendant from interfering in plaintiffs possession thereon and from laying any road on it.

The defendant, in its written statement (Annexure P-3), alleged that the suit land has been acquired and defendant is owner in possession of the suit land, and therefore, defendant has every right to construct road in the suit land as per approved scheme.

The plaintiff, in amendment application (Annexure P-4), alleged that during pendency of the suit, the defendant has constructed road in the suit land. Accordingly, by pleading the said fact, the plaintiff sought to add the relief of mandatory injunction for removal of the said encroachment.

The defendant, by filing reply (Annexure P-6), opposed the amendment application and pleaded that defendant has every right to construct road as per approved Scheme. It was pleaded that work of construction of road was already going on and was nearing completion.

Learned trial court, vide impugned order (Annexure P-1), allowed application for amendment of plaint. Feeling aggrieved, defendant has filed this revision petition to assail the said order.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner contended that amendment of plaint could not be allowed after commencement of trial, in view of proviso to Order 6 Rule 17 of the CPC (in short-CPC). Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, . It was also argued that work of construction of road had started in February 2009 (before institution of the suit in May 2009) and it was completed on 23.09.2009, and therefore, it cannot be said that the road has been laid during pendency of the suit.

I have carefully considered the matter.

In written statement dated 21.05.2009 (Annexure P-3), it has not even been alleged remotely that any work of road construction was going on at the spot. Only right of the defendant to lay road in the suit land was asserted in the written statement, but it was not pleaded that the work of road construction had already started before filing of the suit. Consequently, assertion of counsel for the petitioner to this effect cannot be accepted at this stage, for the purpose of deciding amendment application. On the contrary, assertion in the written statement that the defendant has right to lay the road would depict that work of laying the road in the suit land had not commenced by then. In other words, the road has been laid in the suit land during pendency of the suit. This fact becomes further clear from the reply dated 24.02.2012 (Annexure P-6) filed by the defendant to the amendment application. It has been asserted in paragraph 3 on merits in the said reply that construction work of road was already going on and also nearing completion, but the plaintiff was creating hindrance in the construction work. However, it has not been pleaded as to when the construction work started in the suit land although it has been pleaded that it was completed in August 2009. However, if the road was completed in August 2009, the same was during the pendency of the suit. In view thereof, prohibition by proviso to Order 6 Rule 17 CPC, to allow amendment of pleading after commencement of trial, would not be attracted because amendment of plaint has been necessitated by subsequent event that took place during pendency of the suit. Consequently, judgment in the case of Ravajeetu Builders & Developers (supra) is not applicable to the instant case.

For the reasons aforesaid, I find that amendment of plaint has been rightly allowed by the trial court. Consequently, there is no perversity, illegality or jurisdictional error in the impugned order of the trial court so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is sans any merit and is accordingly dismissed in limine. Stay application bearing C.M. No. 18298-CII of 2013 is disposed of as having been rendered infructuous.