Dudh Nath vs Union of India and Another

L.N. Mittal, J.—In this revision petition filed under Article 227 of the Constitution of India by Dudh Nath plaintiff, challenge is to order dated 1.9.2011 Annexure P/1 and order dated 14.9.2011 Annexure P/2 passed by the lower appellate court. Plaintiff has filed suit for permanent injunction restraining defendants/respondents Union of India and Divisional Manager of Railway from interfering in possession of the plaintiff over the suit house. Plaintiff''s application for temporary injunction to the same effect during pendency of the suit was dismissed by the trial court vide order dated 25.9.2008. Plaintiff has filed miscellaneous civil appeal in the court of District Judge against the said order of the trial court.

During pendency of the aforesaid appeal, plaintiff moved application Annexure P/4 for amendment of the grounds of appeal to claim relief of recovery of Rs. 2 lacs for alleged illegal demolition of the suit property by the defendants. The said application has been dismissed by lower appellate court vide order dated 1.9.2011 Annexure P/1. Thereafter plaintiff moved application Annexure P/5 in the lower appellate court for supply of correct (non-corrupted) copy of order Annexure P/1 and copies of some other documents alleging that the copies supplied by the Copying Agency were not correct. The said application has been dismissed by lower appellate court vide order dated 14.9.2011 Annexure P/2. Plaintiff has filed this revision petition to assail orders Annexures P/1 and P/2.

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

As regards order Annexure P/2, counsel for the petitioner has pointed out that in copy of order Annexure P/1 and also in copies of other documents, head note of amended grounds of appeal Annexure P/4/1 has been given although amendment of grounds of appeal was disallowed and therefore, head note of unamended grounds of appeal Annexure P/3 should have been given. Copying Agency of the District Judge, Ambala is directed to supply copies of relevant documents with head note of unamended grounds of appeal instead of amended grounds of appeal. The aforesaid grievance of the petitioner is accordingly redressed.

As regards order Annexure P/1, counsel for the petitioner contended that proposed amendment of grounds of appeal should be allowed and only after the amendment is allowed, the court may look into whether the amended claim should be allowed or not. On the other hand, counsel for the respondents contended that the petitioner cannot claim relief of recovery of Rs. 2 lacs in the pending miscellaneous appeal relating to temporary injunction and therefore, proposed amendment of grounds of appeal has been rightly declined.

I have carefully considered the matter. The plaintiff has amended his plaint vide order dated 6.8.2011 Annexure P/6 passed by the trial court. However, even after the said amendment, the plaintiff in the suit has not claimed relief of recovery of Rs. 2 lacs or any other amount as damages for alleged illegal demolition of the suit property. Consequently, in the pending miscellaneous appeal, the plaintiff cannot be permitted to claim the relief of recovery of Rs. 2 lacs as damages by amendment of grounds of appeal. On the other hand, pending miscellaneous appeal is against order of the trial court declining temporary injunction. Consequently, the question of seeking relief of recovery of Rs. 2 lacs as damages in the pending miscellaneous appeal before the lower appellate court does not arise. It is correct, as argued by counsel for the petitioner, that court should not adjudicate the merit of the proposed amendment before allowing the amendment. However, in the instant case, the proposed amendment of grounds of appeal cannot be allowed in the aforesaid circumstances. Consequently, I find no perversity, illegality or jurisdictional error in impugned order Annexure P/1 passed by the lower appellate court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. Resultantly, the instant revision petition is dismissed except to the extent of relief regarding order Annexure P/2 noticed hereinbefore. Nothing in this order shall have any bearing on the merits of the suit.