1. Heard learned Counsel for the petitioner, opposite party Nos. 1 and 2 (the District Board, Begusarai), opposite party Nos. 3 and 4 (functionaries of the State Government), and opposite party Nos. 5 to
8. The plaintiff is the petitioner. This Civil Revision Application is directed against the order dated 22-9-2000, passed by the Munsif-I Court, Begusarai, in Title Suit No. 112 of 1988 (Sri Anirudha Prasad Singh v. The District Board, Begusarai and others), whereby amendment of the plaint sought for by the plaintiff (petitioner) has been rejected, inter alia, on the ground that it is not a bona fide application.
2. Proceedings were initiated against the present petitioner for removal of encroachment by him on the Government land which was part of a public road. Aggrieved by the same, the petitioner had earlier preferred C.W.J.C. No. 3568 of 1987 which was disposed of by a Division Bench of this Court by dated 12-11-1987 (Annexure-R/I to the counter-affidavit of Opp. party Nos. 1 and 2, the District Board), whereby the District Board was directed to ascertain the alleged encroachment by taking measurement of the land in question and it was open to the petitioner to engage a survey-knowing person, to be done in the presence of the both the sides. It appears from the letter bearing Memo No. 1582, dated 24-12-1987 (Annexure-R/II) that in pursuance of the order of the High Court, the District Board had informed the petitioner that measurement of the land shall be done on 27-12-1987, and the petitioner was called upon to be personally present with the option to engage his own Amin. It appears that measurement was done and the report is dated 28-12-1987 (Annexure-R/ll) with the sketch map-showing the portion encroached by the petitioner. This was followed by the communication bearing Memo No. 51, dated 24-2-1988 (Annexure-R/II/III) to the petitioner calling upon him to remove the encroachment within a period of one week, failing which the District Board shall remove the same at the cost of the petitioner. It appears from the counter-affidavit of the District Board that the encroachment was removed by demolishing the petitioner's house.
3. It appears that the petitioner in the meanwhile filed the present Title Suit No. 112 of 1988 for declaration that the land in question is not public land, and for permanent injunction against the District Board. The suit progressed and the plaintiff led his evidence. According to the plaintiff, after his evidence was over, the case of the District Board was closed. In the meantime, the present writ petitioner preferred Second Writ Petition before this Court challenging the demolition bearing C.W.J.C. No. 6282 of 2000 against the District Board and the functionaries of the State Government who are opposite party Nos. 3 and 4 before me, claiming damages against them personally. The petitioner had stated in the writ petition that the demolition had been done without measurement of the lands in question. The writ petition was disposed of by a learned Single Judge of this Court by order dated 21-7-2000 (Annexure-1 to the writ petition), whereby the petitioner was permitted to file an application for amendment of the plaint and seek necessary relief in the suit itself. The other dated 21-7-2000 (Annexure-1), in C.W.J.C. No. 6282 of 2000 is set out herein below:
In this writ application, prayer has been made for declaration that demolition of structure belonging to the petitioner was illegal and the petitioner is entitled to compensation and restoration of possession.
The case of the petitioner is that petitioner was owner of the disputed land. He constructed house over the disputed land. Land encroachment case was instituted which was kept in abeyance for same reason. Thereafter, attempt was made to demolists the structure, then the petitioner moved this Court in C.W.J.C. No. 3568 of 1987. The said writ petition was disposed of directing to measure the land but no measurement was made. Again respondents tried to demolish, then petitioner filed T.S. No. 112 of 1988 for declaration of title over the suit, land. The suit is pending before the Munsif-I, Begusarai. However, during pendency of the suit it has been stated that respondent demo listed the house of the petitioner.
Since the suit is pending, in my view, appropriate remedy is to file an application for amendment of the plaint and seek necessary relief in the said suit itself. The petitioner is at liberty to furnish other paraphernalia, if required under the law.
With the observation as indicated above, the writ application is disposed of.
4. Pursuant to this order, the plaintiff filed an application seeking amendment of the plaint, whereby seeking damages against opposite party Nos. 2, 3 arid 4 personally. The same has been rejected by the impugned order on the ground that the amendment sought for is inconsistent with the framing of the suit, will change the nature of the suit, and is not a bona fide application. Hence, the present revision application.
5. While assailing the validity of the impugned order, learned Counsel for the plaintiff (petitioner) submits that the law is well settled that the trial Court should be liberal in allowing amendment of the plaint so that the reliefs sought for in the plaint and all cognate questions are decided in one suit, and in order to avoid multiplicity of suits. He relies on the judgment of the Supreme Court, reported in 2000(1) PLJR (SC) page III (B.K. Narain Pellai v. Permeshwaran Pellai).
6. Learned Counsel for opposite party Nos. 1 and 2 (the District Board) submits that pursuant to the aforesaid order dated 12-11-1987 of this Court, measurement had been done in the presence of the petitioner and encroachment has been removed. He further submits that the trial Court has rightly come to the conclusion that the application before him is not a bona fide application, inter alia, for the reason that he had misrepresented before this Court in C.W.J.C. No. 6282 of 2000 that no measurement had been taken notwithstanding which the alleged encroachment had been removed.
7. Learned Counsel for opposite party Nos. 3 and 4 (functionaries of the Bihar Government) submits that they had removed the encroachment in due discharge of the duty, in fact as a sequel to the order of this Court dated 12-11 -1987 and, therefore, claim for damages against them personally is not maintainable. He further submits that no notice under Section 80 of the Code of Civil Procedure has been served on them.
8. Learned Counsel for opposite party Nos. 5 to 8, who are private parties and are neighbors of the petitioner, submits that they have unnecessarily been impleaded as defendants in the suit and no relief has been sought for against them. He further submits that law is well settled that an application for amendment of pleading is fit to be rejected if it is not bona fide.
9. Having considered the rival contentions of the parties, I am of the view that the present Civil Revision is fit to be rejected. Learned Counsel for opposite party Nos. 1 and 2 has rightly submitted that pursuant to the aforesaid order dated 12-11-1987, passed in C.W.J.C. No. 3568 of 1987, the District Board had taken steps to measure the land and determine the extent of encroachment which was done in the presence of the petitioner. As directed by this Court, the Board had given the option to the petitioner to engage his own Amin. Encroachment at the instance of the petitioner. Thereafter, the petitioner was called upon to remove the encroachment which he failed to do. Therefore, the District Board had removed the encroachment. The position is manifest from the documents marked Annexures R-1 to R-11/111 and undenied by the petitioner. This issue, therefore, concluded with the removal of encroachment, being the logical conclusion of the aforesaid order dated 12-11-1987 of this Court.
10. Learned Counsel for the opposite parties are right in their submission that the present petitioner had misled this Court in passing the aforesaid order dated 21-7-2000, passed in C.W.J.C. No. 6282 of 2000. It is manifest from a plain reading of the order that the petitioner had represented before the Court that the encroachment had been removed without undertaking the task of measurement and determining the extent of encroachment, if any. In that view of the matter, the amendment application is not bona fide. Counsel for opposite party Nos. 5 to 8 has rightly placed reliance on the judgment of this Court (Chandu Modi v. State of
Bihar). The judgment of Bramwell, L.J. in Tildesley v. Harper (1878) IO Ch. D. 393 is equally relevant in the present case, the relevant portion of which is set out hereinbelow:
My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.
(Emphasis mine)
11. In the result, this Revision application is dismissed.