Sunita Devi v. Roop Ram & Anr.

1. This petition under Article 227 of the Constitution of India is filed by the defendant no.1 in the suit impugning the order of the trial court dated 23.1.2013 by which the trial court has allowed the amendment application filed by the respondent no.1/plaintiff. By the amendment, the respondent no.1/plaintiff has been allowed to file an amended site plan with respect to the suit property and also to claim the relief of possession with respect to the area illegally encroached upon by the petitioner/defendant no.1.

2. The original suit which was filed was a suit for mandatory injunction. As per the original suit/plaint, the respondent no.1/plaintiff prayed for a 2014:DHC:7078 mandatory injunction for directing the petitioner/defendant no.1 to remove the illegal and unauthorized construction in the encroached area of the property of the respondent no.1/plaintiff situated in khasra no.129/1, Village Nankhera, Tehsil Mehrauli, New Delhi.

3. The sum and substance of the original suit/plaint was that the respondent no.1/plaintiff claimed to be the owner of the 1/4th share of the suit plot admeasuring 1000 sq. yds. in khasra no.129/1, Village Nankhera, Tehsil Mahrauli, New Delhi, and as per the plaint, the petitioner/defendant no.1 encroached the area of 30 sq. yds. belonging to the respondent no.1/plaintiff, with respect to which the relief of mandatory injunction to remove the unauthorized construction was prayed.

4. The trial court has allowed the amendment application and observed that essentially the relief claimed now of possession was in a way already pleaded in the existing suit for mandatory injunction although the prayer was covered seeking mandatory injunction. Also, the trial court has observed that allowing the amended site plan to be taken on record will serve the ends of justice by clearly elucidating and identifying the suit property for which the suit has been filed.

5. To the aforesaid conclusions of the trial court, I would like to add that ordinarily courts are liberal in allowing amendments of pleadings especially when amendments arise more or less out of the set of facts which are already pleaded on record. Also, by allowing of an amendment application, merits of the case are not decided and merits would be decided at the stage of final arguments in accordance with law. Amendments are disallowed only if they are malafide or if they totally change the nature of the case. In my opinion, the impugned order dated 23.1.2013 allowing the amendment to the plaint by filing an amended site plan identifying the suit property which is said to be illegally encroached by the petitioner/defendant no.1 and seeking decree of possession are aspects which arise out of the existing set of facts found in the original suit/plaint viz the facts pertaining to encroachment by the petitioner/defendant no.1 on the area which was owned in the suit plot by the respondent no.1/plaintiff.

6. Counsel for the petitioner argues that the amendment application ought not to have been filed because now a new property is being claimed instead of the property which was originally claimed in the plaint, inasmuch as the site plan now filed shows a different property. Impugned order is also prayed to be set aside because it is argued that the amendment allows a time barred claim.

7. Both the arguments urged on behalf of the petitioner/defendant no.1 are totally misconceived inasmuch as if an earlier site plan wrongly mentions a different property and a new site plan is filed showing the correct property, it cannot be said that a new case is being introduced inasmuch as the issue still remains of encroachment of 30 sq. yds. of area belonging to the respondent no.1/plaintiff in khasra no.129/1, Village Nankhera, Tehsil Mehrauli, New Delhi. By filing of the fresh site plan, actually the correct area of encroachment is being identified.

8. So far as the issue of limitation is concerned, as already stated above, by allowing of amendment, issues of merits are not decided, more so when the aspect of limitation is only a case/ defence of the petitioner/defendant no.1, and which will require evidence and trial for the same to be established. The petitioner/defendant no.1 will have sufficient opportunity in terms of the amended written statement now to be filed to plead all pleas of fact and law, and disputed questions of fact as regards the limitation cannot be and are not examined at the time of allowing of an amendment application.

9. Powers under Article 227 of the Constitution of India are discretionary and extraordinary powers. The Code of Civil Procedure, 1908 (CPC) provides that certain orders are appealable and certain orders are not appealable specifically for the reason that the orders which are not appealable, should not ordinarily be challenged by the litigants and that challenges against such impugned orders should not be entertained by the courts in exercise of the extraordinary and discretionary jurisdiction under Article 227 of the Constitution of India. Powers under Article 227 of the Constitution of India are exercised only if there is a clear-cut and gross injustice caused by an impugned order, and courts therefore will not interfere in the orders allowing amendment application such as the present inasmuch as no grave injustice is caused.

10. In view of the above, there is not merit in this petition, and the same is therefore dismissed with costs of Rs.20,000/-. Costs shall be paid to the respondent no.1/plaintiff before the trial court by the petitioner/defendant no.1. DECEMBER 16, 2014 VALMIKI J. MEHTA, J. KA