Nisar Ahmad and others vs Naim Ahmad and others

Prakash Krishna, J.

Heard the learned counsel for the parties.

Respondents No. 1 and 2 herein instituted Original Suit No. 932 of 1985, Iqbal Ahmad v. Nawab Ahmad. It has been filed for mandatory injunction directing the defendants who are petitioners herein to vacate the house and sahan shown in the map given at the foot of the plaint and vacate it within a stipulated time. When the suit came up for final arguments, the counsel for the plaintiffs discovered that one of the reliefs which is main relief is not very well drafted. An application to amend the relief clause was filed seeking decree for eviction of the defendants specifically. The said amendment having been allowed by the two courts below, the present writ petition has been filed.

Contention of the learned counsel for the petitioners is that the suit for recovery of possession is barred by time as it has been sought for after 23 years. He submits that such amendment cannot be permitted. Strong reliance has been placed in the case of Revajeetu Builders & Developers v. Narayanaswamy & Sons and others, 2009 (4) AWC 4002 (SC), clause6 [Para 67] thereof.

In reply, Shri P.K. Jain, learned counsel for the plaintiffrespondents who has filed caveat application, submits that on a true and meaningful reading of the plaint would show that relief for vacation of the disputed property is already their in the original plaint. Submission is that the amendment sough for is only clarificatory in nature and it does not change the nature of the case.

Considered the respective submissions of the learned counsel for the parties and perused the record.

A bare perusal of the original plaint, particularly relief no. 1 thereof would show that the plaintiffs have claimed decree for mandatory injunction directing the defendants to vacate the property in dispute within such time as may be fixed by the Court. In case of their failure, the Court may get the property in dispute vacated. By way of amendment, the plaintiffs want to add that the possession may be delivered to them. The amendment sought for is clarificatory in nature and it does not change the nature of the case.

So far as the relied upon case is concerned, it has no application to the facts of the present case as the learned counsel for the defendants could not show as to how the suit is barred by time. He submits that the defendants are claiming title over the property in dispute. Even that is so, the relief for possession is not barred by time as it is already there in the original plaint. It is a case where the relief was not artistically drafted and the fault, if any, is on the part of the counsel who drafted the plaint. A meaningful reading of the plaint would show that the plaintiffs intended and prayed that the possession may also be delivered to them, after its vacation by the defendants.

In any view of the matter, substantial justice has been done to the parties. It is not a fit case to interfere under Article 226 of the Constitution of India in the present writ petition.

The suit is of the year 1985. The trial Court will do good by deciding it expeditiously, preferably within a period of three months from the date of production of certified copy of this order.

The writ petition is dismissed, summarily.