RAM KUMAR GUPTA Vs. BEGUM SHAHZADI & ORS

JUDGEMENT

(1.) By this petition the petitioner has assailed an order dated 14th October, 1999 whereby an application under Order 6 Rule 17 CPC of the petitioner, who is plaintiff before the trial Court, was dismissed by the trial Court holding that the plaintiff by way of amendment wanted to incorporate totally new facts, inconsistent with the earlier pleas and in fact wanted to change the description of the suit property altogether after about 8 years of filing of the suit.

(2.) Plaintiff had filed a suit for permanent injunction and mandatory injunction claiming himself to be owner of property no. 2538 Tiraha Bairam Khan, Darya Ganj, Delhi. In the plaint he stated that shop no. 2538 had two doors. He alleged that the defendant, a tenant in the shop, without his permission and consent, was making alterations and additions and therefore he sought a mandatory injunction directing defendants to demolish the construction already made on the first floor and to fill up already dug basement area in the shop. Along with plaint, plaintiff filed a site plan showing a composite shop with two doors and a wall with a door in-between connecting the two shops and described it as shop number 2538. In the WS, defendants stated that this was not one shop but these were two shops; one was having no. 2538 and other was having number as 2538A. The relationship of landlord/tenant was not denied. It was stated that out of two shops one shop no. 2538 was repossessed by the plaintiff taking advantage of the fact that defendant no.1 was a widow and there was no senior member to advice her. The plaintiff in the replication insisted that it was one shop with two doors with municipal No. 2538

(3.) During the trial when the defendants persisted with theory of two shops plaintiff then filed this amendment application under Order 6 Rule 17 CPC whereby he wanted to amend the plaint by saying that though the tenanted shop bore municipal number 2538 Tiraha Bairam Khan, Darya Ganj, Delhi but private numbers to the two parts of shop were given as 2538 and 2538A. Portion in the site plan shown as 'A' bore private No. 2538 and portion shown as 'B' bore private No. as 2538A. It was stated that since the premises remained the same and this objection had been taken by the defendants themselves the amendment would not prejudice the defendants. The defendants opposed the application on the ground that the plaintiff/petitioner was trying to change the suit property he did not amend the plaint despite objection taken by the defendants in the very beginning.