Dr. Om Parkash and Others vs Firm Krishna Bricks Co.

A.L. Bahri, J.—This revision petition is directed against order dated December 16, 1986 passed by Sub Judge 2nd Class, Jagadhri whereby application for amendment of the plaint in order to implead Smt. Parmila Vinayak as licensee of the Firm Krishna Bricks Co. and also to include Khasra Nos. 87/15 and 88/11 in the plaint as the Brick Kiln has been extended to the land covered by these Khasra numbers.

The suit was brought by Dr. Om Parkash and others for recovery of Rs. 5,000/- as damages and for perpetual injunction restraining the Defendants from operating the brick kiln that was installed in khasra No. 87/14/3 at village Kharwan, Tehsil Jagadhri. Although the suit remained pending for sufficient time afterwards it tran-spired that licence of the brick kiln was in favour of Parmila Vinayak which necessitated the filing of the application for amendment of the plaint. This application was opposed on behalf of the Defendants already impleaded in the suit that by allowing the amendment, a new cause of action would be introduced. After hearing learned Counsel for the Petitioners, I am of the view that the amendment of the plaint should have been allowed.

The orchard of the Plaintiffs is near the disputed brick kiln. With the working of the brick kiln which was installed recently, there was damage caused to the orchard of the Plaintiffs. Thus, in 1982 the suit was filed. The Plaintiffs did not know the constitution of the Defendant-firm known as Firm Krishna Brick Co. and impleaded it through Smt. Krishna Devi wife of Shri K.L. Vinayak partner. At one stage, summons were served upon Parmila Vinayak although she was not impleaded as party at that stage. Smt. Krishna Devi filed a written statement on behalf of the Firm Krishna Brick Co. inter alia stating that she had no concern with the said firm. Although some evidence has already been recorded in the suit and when the Plaintiffs came to know that licence for running the brick kiln was in fact in the name of Parmila Vinayak and that the brick kiln was being extended to the adjoining Khasra numbers that the present application was filed. No injustice would be caueds to the present Defendants if Smt. Parmila Vinayak is impleaded as a Defendant. If ultimately the trial Court comes to the conclusion that either Krishna Devi is a partner of Firm Krishna Brick Co. she would be bound by the decision given in the suit. If it is found to the contrary, she would not be affected by impleading Smt. Parmila Vinayak as partner of the said firm. If Smt. Parmila Vinayak is jn fact either the licensee or the partner of the firm Krishna Brick Co., she will only be bound by the decision if she is impleaded as the party. The mere fact that at one stage she was served with the notice is of no consequence as at that stage she was not impleaded as party as such. For the reasons recorded above, this revision petition is accepted. The order of the trial court dated December 16, 1986 is set aside and the application for amendment of the plaint is allowed subject to payment of Rs. 300/- as costs by the Plaintiffs to the existing Defendants or by deposit of the same in Court. The Petitioners are directed to appear in the trial Court through their counsel on July 18, 1988.