Shiv Mandir Prabhandhak Committee vs Piara Singh

Laxmi Narain Mittal, J.

C.M. No. 17351 CII of 2013

Heard.

This is application for impleading legal representative of Inder Pal Passi petitioner No. 2 since deceased. It is alleged that petitioner No. 2 has left behind his wife Shashi Bala as his sole legal representative. The application is accompanied by affidavit. Accordingly, the application is allowed subject to all just exceptions and Shashi Bala mentioned in paragraph 2 of the application is ordered to be impleaded as legal representative of petitioner No. 2 since deceased for the purpose of this revision petition. Amended memo of parties annexed with the application is taken on record subject to all just exceptions.

C.R. No. 1225 of 2011

Defendants No. 1, 2, 6 and 7 have filed this revision petition under Article 227 of the Constitution of India impugning order dated 29.9.2010 Annexure P/5 passed by the trial court thereby allowing application Annexure P/3 filed by respondents No. 1 to 3/plaintiffs for amendment of their plaint Annexure P/1.

Plaintiffs have inter alia pleaded in the plaint that the suit land was given to defendants as licencees for placing Idols for a small period and the licence has been terminated. The plaintiffs inter alia sought mandatory injunction directing the defendants to remove the Idols and illegal construction from the suit land. Plaintiffs also sought permanent injunction restraining the defendants from raising any construction in the suit land.

By way of amendment, the plaintiffs want to correct the area of the suit land from 6 kanals 3 marlas to 6 kanals, besides correcting khatauni numbers as 72 and 74 instead of 73 and 74. Plaintiffs also want to add relief of possession of the suit land. Some other minor amendments are also sought to be made. Besides it, paragraph 28A is also sought to be added to claim relief of possession.

Defendants by filing reply Annexure P/4 contested the amendment application.

Learned trial court vide order Annexure P/5 has allowed the amendment application subject to payment of Rs. 700/- as costs. Feeling aggrieved, defendants No. 1, 2, 6 and 7 have filed this revision petition to assail the said order.

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

Counsel for the petitioners vehemently contended that the plaintiffs cannot be allowed to seek relief of possession by amendment of plaint because the said relief is deemed to have been abandoned by filing the plaint and therefore, the said relief is barred by Order 2 Rule 2 of the Code of Civil Procedure. It was also contended that the plaintiffs in the original plaint have admitted that they are in possession of the suit land but by amendment of plaint, they want to plead that they were in possession of the suit land and are now not in possession thereof. Other amendments have also been assailed by counsel for the petitioners.

I have carefully considered the matter. Counsel for the petitioners stated that the amendment application was moved by the plaintiffs before commencement of trial. Law of amendment of pleadings is liberal and amendment of pleadings can be allowed before commencement of trial by compensating the other party with costs. Amendment of pleading after commencement of trial has been curtailed, but amendment of pleadings before commencement of trial continues to be liberal. The substratum of the case of the plaintiffs is not being altered by the proposed amendment. The very plea in the original plaint that the defendants had installed Idols and had raised construction in the suit land would depict that defendants were in possession of the suit land. The defendants have also alleged that they are in possession of the suit property. Consequently, the plaintiffs want to seek relief of possession of the suit land by amendment of plaint.

For the aforesaid reasons, I find that the proposed amendment of plant has been rightly allowed by the trial court on payment of costs. However, cost amount needs to be enhanced. Resultantly, I find no perversity, illegality or jurisdictional error in impugned order of the trial court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India except regarding amount of costs. Accordingly, the instant revision petition is dismissed except that the plaintiffs shall pay Rs. 7000/- as costs precedent for amendment of plaint instead of Rs. 700/- only imposed by the trial court.