Vinay Kumar vs Rampal

Deepak Gupta, J.—This petition is directed against the order dated 17.6.2010 whereby the learned Civil Judge (Senior Division) Court No. 1, Paonta Sahib, allowed the application filed for amendment of the plaint by the plaintiff in civil Suit No. 103/1 of 2008.

The plaintiff originally filed a suit for declaration that he is owner in possession of the suit land and he also prayed that a decree be passed restraining the defendant from interfering in possession of the suit land. This suit was contested by the defendant who claimed that he in fact is in possession of the suit land. The application filed by the plaintiff under Order 39 Rule 1 and 2 CPC for restraining the defendant from interfering the possession was also dismissed and a finding was given in that application that the defendant is in possession of the suit land.

Obviously the findings given in the order whereby the application under Order 39 Rule 1 and 2 was decided, were findings based on pleadings of the parties and will have no effect on the same issue which may have to be decided at the time of the final disposal of the suit.

The plaintiff thereafter moved an application in which he claimed that the defendant on 10.2.2010 forcibly ploughed the suit land and took forcible possession of the suit land and therefore sought an amendment to the effect that the plaintiff's suit be decreed for possession of the suit land. This application has been allowed by the learned trial Court.

The main grievance of the petitioner is that the allegation made in the application for amendment of the plaint that the plaintiff was dispossessed on 10.2.2010 is false and on the basis of this false allegation the plaintiff should not be permitted to amend the suit. The learned trial Court has held and rightly so that the question whether the plaintiff was dispossessed from the suit land on 10.2.2010 or was never in possession of the suit land as alleged by the defendant is a question which has to be decided in the main suit and cannot be decided while disposing of an application for amendment of the plaint. At the stage of amendment of the pleadings the merits of the pleas cannot be gone into. As per the allegations made by the plaintiff he was dispossessed after commencement of the trial. Therefore, the learned trial Court was right in allowing the amendment. It is, however, made clear that merely by allowing the amendment, it has not been held that the defendant has actually dispossessed the plaintiff after the filing of the suit and it is open to the defendant to prove that he was in possession of the suit land even prior to the filing of the suit.

Therefore, I find no merit in the petition, which is accordingly rejected.