Full Judgment
W.P.No.15204 o”
28. 09.2012 Shri B.R.Vijaywar, learned counsel for the petitioneRs.The petitioneRs.counsel is heard on the question of admission.
The petitioners-defendants have filed this writ petition under Article 227 of the Constitution of India for quashment of order dated 9.7.2012, (Ann.
P-9) passed by Civil Judge, Class-I, Betul in C.S.No.3-A/12, whereby the application of the respondents filed under Order 6 Rule 17 of the CPC to amend the suit for the relief of possession and mandatory injunction has been allowed.
PetitioneRs.counsel after taking me through the petition as well as papers placed on record argued that initially the suit, (Ann.
P-1) was filed by the respondents - plaintiffs for perpetual injunction and not for any other relief but in pendency of the suit when they could not get success in getting the interlocutory injunction against the petitioneRs.then the aforesaid application to insert the pleadings to claim possession and mandatory injunction was filed.
In continuation he said that on allowing the application the entire nature of the suit has been changed.
He also argued that before filing such amendment application, (Ann.
P-4) by respondents- plaintiffs, on behalf of the petitioners to raise the counter claim for the mandatory injunction against the respondents the amendment application to amend the written statement was filed but the same was dismissed by the trial court under the wrong premises, vide order dated 21.3.2012 and thereafter contrary to the existing legal position, the respondents have been permitted to amend the prayer which was not initially claimed by them.
According to his submission any amendment which is going to change the nature of the suit could not be allowed and in such premises, he prayed for admission and allowing this petition.
Having heard the counsel keeping in view the arguments, I have carefully gone through the papers placed on record alongwith the impugned order.
True it is, initially the suit, (Ann.
P-1) was filed by the respondents against the petitioners for issuing the perpetual injunction restraining them to interfere in their possession of the disputed property in any manner either by themselves or through any other person but subsequently by way of amendment application, the prayer of mandatory injunction directing the petitioners to remove the alleged construction from the disputed place and of possession of the same be given to them is made.
It is settled proposition of law that while considering the amendment application, the court has to consider the aspect whether proposed amendment is an additional approach or the different approach of the existing pleadings and if it is found that with respect of subject matter of the suit the proposed amendment based on the existing pleadings but filed on the basis of some subsequent events of the matter to amend for some different prayer and in view of the provision of Order 2 Rule 2 of the CPC for such prayer fresh suit could not be filed, then subject to provision of Limitation Act, such amendment should be allowed by the Court.
In such premises, on examining the case at hand, then it is apparent that initially the suit was filed by the respondents for perpetual injunction restraining the petitioners to interfere in their possession of the disputed property but later on for the reasons stated in the application, (Ann.
P-4) the amendment to remove the alleged construction of the petitioners from the disputed land and for possession of the same was proposed and on consideration such application was allowed.
In such premises, the proposed amendment is apparently on additional approach or the different approach of the existing pleadings.
Thus, the trial court has not committed any error in allowing such application.
It is trite law that whenever a suit for perpetual injunction is filed and interlocutory injunction is not granted by holding that other side is in possession of the property then in that circumstances also the plaintiffs or the concerning party has right to amend the suit accordingly for possession as well as to remove the construction or other thing for mandatory injunction.
In such premises, also the impugned order could not be said to be contrary to law.
Consequently this petition being devoid of any merits is hereby dismissed at the stage of motion hearing.
However in the available circumstances, the petitioners are extended a liberty to file their consequential amendment in response of the aforesaid amendment carried out by the respondents.
By allowing the application, Ann.
P-4 the prayer of the respondents for mandatory injunction and possession has been made at the fiRs.time in pendency of suit, then in such circumstances the petitioners shall be at liberty to raise the counter claim also by way of amendment application.
The trial court directed that on filing such an application by the petitioners the same shall be considered and decided on its own merits keeping in view the aforesaid observation in accordance with the proscribed procedure under the law without influencing from any observation or the findings given by such court in the order dated 21.3.2012.
However, the respondents - plaintiffs are extended a liberty to approach this court with appropriate proceedings or the petition, if they are aggrieved by this order or any part of it.
C c as per rules.
( U.C.Maheshwari ) Judge bks