Judgment:
Ajay Kumar Mittal, J.
1. The plaintiff-respondent filed a suit for mandatory injunction for handing over possession of the suit property in the year 1998. In the year 2003, the plaintiff-respondent filed an application for amendment of the plaint in which the suit for mandatory injunction is to be converted into suit for possession. The amendments which are sought are as under:-
a) The title of the suit being replaced as suit for possession,
b) New Para 6(a) is to be added as under: -
That after causing illegal and forcible possession as a trespasser of portion of the house shown by CDEFG in the site plan attached, the defendant has made some minor alteration by way of breaking the partition of the wall shown by letter FG and a small change in the structural position of the portion without addition of any quantitative structure and without expending any substantial amount to the addition of the structure of the said portion.
c) Para 7(a) be allowed to be added as under:-
That the defendant is staying in the portion of the house detailed above illegally as a trespasser and he is under obligation to hand over the possession of said property to the plaintiff as per the provision of law.
d) In para 10 line No.3 the figure Rs. 2,000/- be changed by the figure Rs. l lac and the figure of Rs.25/- be replaced by the figure Rs. 8,370/-.
e) In the prayer clause in line No.2 the mandatory injunction may kindly be replaced by the word possession.
The said prayer of the plaintiff-respondent was stoutly opposed by the defendant-petitioner on the ground that the application filed in 2003 is highly belated and had been filed with an ulterior motive and to prolong the case and also to harass the defendant-petitioner. The Trial Court vide the impugned order has allowed the amendment.
2. Learned Counsel for the defendant-petitioner submitted that the suit for mandatory injunction was filed in the year 1998. After the evidence was led by both the parties, in the year 2003 the plaintiff has filed an application for amendment of the plaint wherein the entire nature of the suit has been sought to be amended. By amendment of plaint, the plaintiff-respondent wanted to introduce an entirely different case which has prejudiced the defendant-petitioner. Further, no cause of action arose to the plaintiff-respondent to amend the suit and all the grounds were available and were in the knowledge of the plaintiff-respondent at the time of filing of the civil suit. Counsel further submitted that earlier the plaintiff-respondent had accepted that the defendant-petitioner was in permissive possession of the disputed property whereas the proposed amendment changes the stand to forcible dispossession of the plaintiff-respondent which are two contradictory pleas and cannot be allowed to be taken by way of amendment of the plaint. He relied upon Harchand Kaur v. Harinder Singh1 (1994-2)107 P.L.R. 129, Heeralal v. Kalyan Mal 2 1998(1) R.C.R. (Civil) 140 and Harbhol Singh v. Pritam Singh 3 2001(3) R.C.R. (Civil) 806, to buttress his submissions.
3. On the other hand, learned Counsel for the plaintiff-respondent supported the order passed by the trial Court. He submitted that in order to effectively adjudicate the entire dispute between the parties and in the interest of justice, the amendment is necessary and had been rightly allowed by the trial Court. He tried upon Charan Das and Ors. v. Amir Khan and Ors. 4 A.I.R. 1921 Privy Council 50, L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co. 5 : [1957]1SCR438 , Shikhar-chand Jain v. Digamber Jain Praband Karini Sabha and Ors. 6 : [1974]3SCR101 and Suraj Parkash Bhasin v. Smt. Raj Rani Bhasin and Ors. 7 : AIR1981SC485 , to support his submissions.
4. I have heard the learned Counsel for the parties and have perused the record carefully.
5. The law enunciated in various judicial precedents relied upon by the respective parties is well recognised. However, the application of the same depends upon the facts of each case.
6. The amendment of pleadings is generally permissible when those are necessary for determination of the real controversy in the suit and the power to allow amendment may be appropriately exercised in the interest of justice but the exercise of such power is governed by judicial consideration and should be exercised with great care and caution. The provision has been incorporated to do justice but at the same time liberal approach should not result in injustice and prejudice to the other side as well.
7. Few of the principles established by various judicial decisions in respect of amendment of pleadings are:
a) The parties should not be allowed to substitute one cause of action or the nature of the claim for another as claimed originally or should also not be allowed to change the subject-matter or the controversy in the suit;
b) The parties should not be allowed to introduce by amendment an inconsistent or contrary plea to negate the facts originally admitted through a party may be allowed inconsistent plea on admitted facts by way of amendment;
c) The amendment should not cause prejudice to the other side which cannot be compensated by way of costs;
d) The parties should not be allowed amendment of a claim or relief which is barred by law of limitation when amendment is sought to be made as it defeats a legal right which has accrued in favour of a party. However, this may be allowed only in very exceptional circumstances when the facts of the case so warrant,
8. Each case relating to the amendment has to be decided on its own facts by applying the judicial precedents which govern amendment of pleadings. The principles are fixed but the application of the same varies according to facts of each case. The power is to be exercised by the Courts for the ends of justice and to prevent the abuse of process of the Court.
9. In the facts of the present case,it can be safely inferred that the trial Court has clearly fallen in error in allowing the amendment of the plaint to the plaintiff-respondent. The plaintiff was well aware of the facts which are now sought to be incorporated in the plaint and further the amendment completely changes the nature of the suit from mandatory injunction to that of possession in the present case. The amendment causes prejudice to the rights of the defendant-petitioner and had been filed at this belated stage without any justified explanation.
10. In view of the above, the impugned order dated 10.4.2003 passed by the learned trial Court is set aside, the revision petition is allowed and the application for amendment of plaint filed by the plaintiff-respondent is dismissed.
No costs.