1) Rule with the consent of the parties made returnable forthwith and heard.
2) This petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 19/03/2011 passed by the learned 2nd Joint Civil Judge, Senior Division, Nagpur, by which order the application for amendment of the plaint filed by the petitioners came to be rejected.
3) The facts involved in the above petition in brief can be stated thus - The petitioner-Trust was created by one Ganpatrao Pande. The petitioner-Trust was having its properties at several places the said properties included the property known as Ganesh Bhuvan, Civil Lines, Nagpur. It is the case of the petitioners that the respondents herein are not at all concerned with the said property, Ganesh Bhuvan. It is further the case of the petitioners that the respondents entered into the said premises of Ganesh Bhuvan and took forcible possession of an area of 3000 sq.ft. on 05/05/2004. This resulted in, the plaintiffs-petitioners filed Special Civil Suit No.777/2004 under Section 6 of the Specific Relief Act. It is the case of the plaintiffs that though the suit has been filed under Section 6 of the Specific Relief Act, through inadvertence the prayer for restoration of possession and removal of illegal construction and encroachment remained to be made. It is further the case of the plaintiffs that the defendants considering that it was a suit under Section 6 of the Specific Relief Act and therefore, being also one for possession, filed the written statement accordingly. In the said suit the plaintiffs filed affidavit on evidence and further examination-in-chief on behalf of the plaintiffs was also recorded. It appears that the respondents herein moved an application for dismissal of the suit on the ground that there was no prayer for possession in the suit and, therefore, the suit filed under Section 6 of the Specific Relief Act was not maintainable. The petitioners thereafter on 16th October, 2010 moved an application for amendment of the plaint.
4) As indicated above, the trial Court has rejected the said application by the impugned order dated 19/03/2011. The sum and substance of the reasons cited by the trial Court is that in moving the said application for amendment, there was considerable delay and since the suit is fixed for hearing, the said amendment could not be allowed. The trial Court also held that the amendment now sought to be introduced could not be said to be on the basis of subsequent events which had taken place.
5) Heard the learned counsel for the parties. Learned counsel for the petitioners Shri Vaidya contended that it is through sheer inadvertence that the prayer for possession remained to be incorporated in the plaint, though the suit is one filed under Section 6 of the Specific Relief Act. It is further sought to be contended by Shri Vaidya that since the defendants are aware that the suit is one filed under Section 6 of the Specific Relief Act, the incorporation of a prayer for possession would cause them no prejudice and would make no material difference as they have already filed their written statement dealing with the said aspect.
Per contra, the order passed by the trial Court is supported by Shri Darda, the learned counsel for the respondent Nos.1 to 3 on the ground that the prayer for possession, if now allowed to be introduced, would be barred by limitation and, therefore, the prayer, which is barred by limitation, cannot be permitted.
It is further submitted by Shri Darda that in an Appeal from Order, this Court by order dated 6th April, 2010 has protected the possession of the respondents herein in respect of an area of 7000 sq.ft. and lastly Shri Darda contended that the issue of limitation which the respondents want to urge in respect of the suit, as originally filed by the petitioners, would be taken away.
CONSIDERATION :
6) It is required to be noted that the suit filed by the petitioners is on the basis of a forcible possession allegedly taken by the respondents on 05/05/2004. The suit, therefore, being one under Section 6 of the Specific Relief Act, it is intrinsic to such a suit that the possession be restored to the plaintiff, if he succeeds in proving that there was a forcible dispossession. Therefore, the contention of the learned counsel for the petitioners Shri Vaidya, viz. it is crucial inadvertence that the said prayer for possession was not made, though the suit is one filed under Section 6 of the Specific Relief Act, therefore, deserves acceptance. In so far as the contentions of the learned counsel for the respondents are concerned, it would always be open for the respondents to urge the issue of limitation and merely because the amendment application is allowed, the said right of the respondents cannot be said to be taken away. It is well settled by the catena of judgments of this Court and the Apex Court that the Court should be liberal in allowing the amendment, more so when they would result in a just decision of a case.
7) In my view, the application for amendment so as to introduce a prayer for possession is necessary for a just decision in the said suit. As otherwise if the said prayer is not introduced, it would not finally and effectively determine the controversy between the parties. In that view of the matter, the above petition is required to be allowed and accordingly allowed. Resultantly the impugned order dated 19/03/2011 is set aside and the amendment application Exhibit-83 is allowed.
8) The respondents would be at liberty to file additional written statement, if so advised consequent to the amendment.
9) Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.