M C JOSHIS Vs. G S KALRA

JUDGEMENT

(1.) The plaintiff filed suit for perpetual injunction for restraining the defend ants from raising any unauthorised construction or structure wheth- er temporary or otherwise on the second floor of the premises and/or making any addition or alteration therein and for restraining them from throwing waste and litter or dirty water or blockading the sewage pipes on the ground floor of the premises in suit. Certain other reliefs were also claimed in the plaint which are not relevant for purposes of deciding the present petition.

(2.) In paragraph 2 of the plaint it was stated by the plaintiff that the defendants were tenants on the second floor of the premises for the last several years and were paying rent @ Rs. 400.00 p.m. but for the last about two years before the filing of the suit, the rent had not been paid. In the written statement/ the defendants admitted that they were co-tenants in the premises for the last about 23 years. In the replication filed by the plaintiff, it was denied that the defendants were co-tenants and it was stated that only defendant No. 1 was the tenant in the premises in suit. Replication was filed on 8/05/1996 whereas the suit was filed on or about 15th April, 19%. On 14/11/1996 the plaintiff filed an application under Order VI Rule 17 readwith Section 151, Civil Procedure code for amendment of the plaint. It was stated in the application that it was only defendant No. 1 who was the tenant in the premises and by inadvertence and oversight in paragraph 2 of the plaint the plaintiffs have stated that the defendants were tenants in the premises. The plaintiffs, therefore, sought to amend paragraph 2 of the plaint so as to write that defendant No. 1 was the tenant in the suit premises.

(3.) This application was opposed by the defendants mainly on the ground that since an admission of fact had been made in the plaint, the plaintiffs could not be permitted to withdraw the same. It was stated in the reply that the proposed amendment was neither necessary nor relevant for deciding the matter in controversy between the parties in suit and the same would also change the nature of the claim made in the suit by the plaintiff. Learned Trial Court by the impugned order allowed the application and permitted the plaintiff to amend the plaint in the manner suggested in the application. Being aggrieved by the order of the learned Trial Court permitting the amendments to be made, the present revision petition was filed by the defendant.