SAMARJIT SINGH Vs. RAJ KUMAR BHASIN

JUDGEMENT

(1.) The present revision petition has been filed by the petitioner against the order dated 1.11.1997 passed by the Civil Judge. Delhi in Suit No. 159/1995 dismissing the application of the petitioner seeking for amendment of the plaint. The petitioner "as plaintiff instituted a suit in the court of the Senior Civil Judge, Delhi seeking for a declaration that he is the owner, title holder of the suit property and also sought for permanent injunction restraining the respondent from disposing of the same. The respondent filed their written statement contesting the aforesaid suit. Subsequently, an application was filed by respondent/defendant contending inter alia that admittedly the.plaintiff js not inpossession of the suit property and therefore, the relief of permanent injunction could not be availed of by him. It was also stated that the defendants.are in continuous possession and therefore, the plaintiff could not have filed the suit by affixing Rs. 20.00 only as court fee for declaration only, for in order to avail appropriate relief he is to file a suit for possession by affixing and valorem court fee on the market value of the property. The respondent/defendant therefore, sought for rejection of the plaint on that ground.

(2.) On receipt of the aforesaid application the petitioner herein filed an application under Order 6, Rule I7 Civil Procedure Code seeking permission to amend the plaint for appropriate and final adjudication of the issues arising between the parses: It was stated in the said application that in the suit instituted by the plaintiff he is also entitled to seek for consequential reliefs for delivery of possession and for recovery of damages /mesne profits also. The petitioner also stated that he is ready and willing to pay ad valorem court fee on the aforesaid reliefs as sought for now . The aforesaid application was opposed by the respondents and the trial court after hearing the parties dismissed the application holding that the proposed amendment would certainly change the subject matter of the suit. the nature of the claim as well as would cause injury and reparable injustice to the respondent

(3.) I have heard the learned counsel appearing for the petitioner as also the counsel appearing for the respondents. The suit was originally instituted by the petitioner as plaintiff seeking for a declaration that he is the owner / title holder to the suit premises and also for a permanent injunction for restraining the respondents from disposing of the suit premises. From the pleadings of the parties it transpires that the plaintiff vvas not in possession of the suit property and therefore, .a decree for recovery of possession could or should not have been sought for by the plaintiff in order to get full and effective relief in the suit. The relief sought for by way of the amendment to the extent of a decree for recovery of possession and a further decree for a recovery of mesne profits are in the nature of consequential reliefs arising out of a decree for declaration in respect of the suit premises. The aforesaid reliefs as sought for by the petitioner herein can be said to be additional reliefs to that of decree seeking for declaration in respect of the suit premises. The trial court was not justified in holding that if the aforesaid amendment assought for is allowed the same would change the nature and character of the suit. in my considered opinion even if the said amendments are allowed the same would not in any manner change the nature and character of the suit but would be in the nature of addition to the reliefs already sought for in the plaint. The trial court has also dismissed the application for amendment holding that the aforesaid amendments if allowed would also change the nature of the case. The provisions in the Specific Relief Act specifically provide that in a declaratory suit the plaintiff could also seek for consequential reliefs and in fact a suit where consequential reliefs which could be available to plaintiff if not sought for in the decisiratory suit, could be a ground for dismissal ofthe suit itself. In this connection reference maybe made to adecision ofthe Supreme Court in C.S. Company and Others Vs. Kerala State Eleetricity Board, (1996) 11 SCC 680, wherein the Supreme Court has said that if the amendment neither changes the cause of action nor introduces any new cause of action after the bar of limitation such amendments are to be allowed. In the aforesaid case the relief originally sought for was for settlement of accounts and fastening of liability jointly and severally against all the respondents against the assets and estate. The plaintiff, thereafter sought for adecree for damages by way of amendment. In that context the Supreme Court held that the amendment did not constitute addition of any new cause of action and that the respondent was not introducing any new cause of action 'and that he did not intend to change the cause of action as originally pleaded.