Full Judgment
Swatanter Kumar, J.
1. I have heard learned counsel for the parties at some length.
2. The application of the present petitioners for striking off unauthorised pleadings, which is stated to be beyond the order of allowing the amendment, was dismissed, is impugned in the present revision petition.
3. The plaintiffs had filed a suit for declaration, in which an application was filed for amendment of the plaint. The application for amendment prayed a limited relief wherein the plaintiffs wanted to ammend the plaint by incorporating the relief of possession in addition to the relief of declaration and intended to make consequential amendments in the other paragraphs of the plaint. This application of the plaintiffs, which was opposed by the defendents in the suit, was allowed by the learned trial court vide its order dated 14.5.1994. The bare reading of the order dated 14.5.1994 shows that the amendment which was allowed was very restricted in its nature and scope. The following observations of the trial court would substantiate this fact:
'The plaintiff had earlier filed a suit for declaration and permanent injunction and now he wants to add the relief of possession and wants to make consequent amendments in the plaint. The application was opposed by the defendants, on the grounds that application is belted one and the plea was open to the plaintiffs earlier.'
'Hence, the amendment can also be a this fact reads determination as to whether the civil jurisdiction or not at the stage of amendment is to be seem is whether by amendment any prejudice would be caused to defendent as stated above by adding relief of possession t hcause of action would be remain to be same. For the inconvenience the defendent can well be entitled for costs. It is well settled that more delay is no ground for rejecting the application. In view of the matter, I allow the application subject to payment of 100/- as costs.'
This order was challenged by the defendents in the suit in a revision petition before this Court which was registered as Civil Revision No. 2994 of 1994 but the same was dismissed in limine. In furtherance to the order of amendent, the plaintiffs had placed an ammended plaint on record, which as contended was annexed to the application for ammendment. However, before filing the written statement to this amended plaint, the defendents filed the present application praying that unathourised amendedment carried out by the plaintiffs...........in the amended plaint should be struck off. This application was opposed mainly on the ground that the order of amendment inter-se the parties had attained finalty by dismissal of the earlier revision and therefore, the defendents were stopped from challenging the correctness of the amended plaint.
4. It is settled law that the amendment must be carried out strictly in consonance with the order allowing such application. No party can have the liberty to introduce a case or amendement which was not specifically permitted by the order of the Court.
5. There can be no liberal approach in this regard because the party against whom such an application is allowed is required to meet the case as stated in the application read in conjunction with the order of the Court. The proposed amended plaint would not be of any consequence or concern of the other party, at that stage when the application itself is being considered, more so when an order allowing the amendment does not permit specifically that such proposed amended plaint annexed is directed to be taken on record. In the present case it is an admitted fact and is also clear from the language of the order, that the proposed amended plaint was never directed to be taken on record by the order allowing amended application. It is also not disputed before me that the plea of possession based on mortgage was neither averred in the application nor was it argued. Consequently, it does not even find any mention in the order of the learned trial Court dated 1.43.1994 allowing the amendment application.
6. It is a settled rule of law that no party can be permitted to take the other party by surprise in regard to pleading or otherwise. Equally well settled is that the amended plaint or written statement should be strictly in consonence and adherence, to the order allowing such application. Any pleadings beyond the scope of the order cannot be permitted to be pleaded as it is bound to result in prejudice to the other party. In the event there are definite variations in the application seeking amendment of the plaint, the order allowing such amendment and the proposed plaint even if annexed to such application, then the proposed amendment cannot take precedence over the application for amendment and the scope of the order. This will be more true where no specific order is passed by the Court of competent jurisdiction directing taking of the amended annexed plaint to the application, on record. Whatever is placed on Court file necessarily does not become the part of the judicial record unless it is so permited or allowed by the order of the Court. The maxim Droit he done pluis que soit demaunde clearly stipulates that justice gives no more than what is demanded.
7. If the application for amendment is allowed by the Court, the order must be read in context to the facts averred in the application and the prayer made therein. Having no plea of claiming possession on the ground of mortgage in the application the respondent herein could not have on his own enlarged the scope of the order so as to take up the said plea in the proposed amended plaint. Permitting a party to file amended pleadings beyond the scope of the application allowed and the order of the Court allowing such application, would be totally against the law of the land and would be hit by the maxim of Contra Legem.
8. In order to avoid un-necessary prejudice to the opposite party, every party must be confined to its pleadings and not take the other party by surprise. Once the Court allows amendment, it does give right to the applicant to amend pleadings, but strictly in accordance with the order allowing such amendment. The right which accrues to the party has the foundation of Court's order. It cannot be stretched so as to cause a wrong to the other party or prejudice to the extent of meeting a case which is not permitted to be pleaded by the order of the Court.
9. In the present case there may be some negligence on the part of the present petitioners but certainly it is not a negligence of the kind which would vitiate the protection available to the petitioners before the trial court to defend fairly and not to be taken by surprise. This protection cannot be permitted to be frustrated because it is the very foundation of basic principles of law relating to amendments. The amendment carried out should be strictly in adherence to the order of amendment and not to the application or the proposed amended plaint. The order dated 14th May, 1994 did not even indicate that the proposed amended plaint is taken on record. The order is totally silent in that regard.
10. In this view of the matter, I do not think that any adverse inference can be drawn against the present petitioners for not taking objections to the proposed amended plaint in the earlier revision. The learned counsel appearing for the respondents did not dispute the fact that there is definite variations in the application for amendment and the proposed amended plaint which was annexed to the same. The plea of mortgage was neither pleaded in the application nor is argued. As already noticed, it also does not find mentioned in the earlier order allowing the application. In these circumstances, the Court is of the considered view that any pleadings which are beyond the purview and scope of the application for amendment must be struck off, which is ordered accordingly. The amended plaint in consonance with the order dated 14.5.1997 be filed within four weeks from today. Thereupon, the trial Court shall proceed further with the suit in accordance with law.
11. This petition is, accordingly, disposed of.