AMBALAL HIRABHAI PATEL Vs. SOMABHAI PARSOTTAMBHAI PATEL

JUDGEMENT

(1.) RULE. Mr. Chinmay M. Gandhi, learned Counsel waives service of notice of RULE on behalf of the respondent. 1. This petition has been preferred invoking the provisions of Arts. 226 and 227 of the Constitution of India, inter alia with a prayer to quash and set aside order dated 2-12-2008, passed by the learned Additional Civil Judge, Khambhat below application at Exh. 122 in Civil Suit No. 161 of 1994, whereby the said application for amendment of the plaint, has been rejected.

(2.) THE brief factual background of the case, necessary for the decision of the petition is that, the petitioners are the owners of the house numbered as 43-44, situated at Nagar Faliya Gam, which is running in their names, as per the revenue record and before them, in the names of their forefathers, since years together. According to the petitioners, they also have a 'Vaada' (enclosure) on the north-eastern side and a wall has been constructed on the four corners of the said enclosure. 2.1. THE case of the petitioners is that there is a common way for entering into the said enclosure, which is of the ownership of the concerned Gram Panchayat and that the petitioners are using the said way for entering into their enclosure No. 31, since years. Further, the petitioners are placing their bullock-cart in the said enclosure and their cattle are also kept therein. 2.2. According to the petitioners, there is no way except the above- mentioned common way, to enter into their enclosure. It is further the case of the petitioners before the trial Court that on the southern side, there is an open land belonging to the Gram Panchayat and on the said land, the respondent has put up a 'kacha' construction, and has thereby encroached upon the Government land. As the only way to enter into the enclosure No. 31 is from the southern side, where the respondent has put up the said construction, the petitioners are deprived of their right of way to enter into their enclosure, therefore, were constrained to institute the Civil Suit. 2.3. Along with the suit, the petitioners have also filed an application at Exh. 5 for grant of temporary injunction, which was partly allowed, on 7-7-1995. However, the trial Court specified that the interim prayer regarding grant of temporary injunction, restraining the respondent from carrying out 'kacha' construction has not been granted. On 31-3-2008, the petitioners preferred an application at Exh. 122 for amendment in the plaint, seeking to incorporate a final prayer, to the effect that a decree may be passed in their favour and against the respondent, praying for direction for removal of the 'kacha' construction made by the respondent, or a Court Commissioner or receiver be appointed, in the event that the respondent fails to remove the said construction. THE said application has been rejected by the impugned order dated 2-2-2008, giving rise to the filing of the petition.

(3.) I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order, and other material on record. 5.1. A perusal of the impugned order makes it amply clear that the trial Court has rejected the application of the petitioners mainly on two grounds. The first ground is that in the application for amendment, the petitioners have made an averment that the respondent has erected the disputed construction, but the petitioners could not bring this fact on record, by way of any legal proceedings. According to the trial Court, this is more of an oral averment, therefore, the amendment cannot be granted. The second ground for rejection is that the proposed amendment would, if allowed, change the "whole structure of the suit". In this context, if the prayers made in the plaint are perused, it is evident that the petitioners have prayed for the grant of injunction, restraining the respondent from carrying out the disputed construction, and for appointment of a Court Commissioner/ receiver, if the construction is carried out. By the proposed prayer, the only amendment sought for is the prayer for passing a decree in their favour. In essence, the proposed prayer is more or less the same as those already made in the plaint. 5.2. Insofar as the prayer made in the application at Exh. 5 is concerned, the same was for grant of temporary injunction, during the pendency of the suit, to restrain the respondent from carrying out the disputed construction, and for removal of the said construction, if carried out. It is this prayer, that has been rejected by the trial Court, while partly-allowing the application at Exh. 5. It is no doubt true that the 'kacha' construction appears to have been in existence, at the time of filing of the suit. However, the submission made by the learned Counsel for the petitioners, as well as the averments made in the petition, especially, in Paragraph 3.7, at running page No. 7 of the petition, indicate that the application for amendment has been filed as the respondent has started "pucca" construction and has started digging, in the direction of the northern/southern side. The event so described has taken place, subsequent to the filing of the suit. The trial Court has rejected the application at Exh. 122 on the ground that there is no material on record to show that the respondent has erected such a construction. In my view, this ground for rejecting the application of the petitioners, is neither justifiable nor tenable as the trial Court could not have gone into the material regarding the erection of the construction, or otherwise, at this stage as that would amount to passing of an order on the merits of the matter. Admittedly, this would not be appropriate, at the stage of deciding an application for amendment of the plaintiffs especially, as the suit is yet to be decided. 5.3. Insofar as the second ground for rejecting the application, as indicated in the impugned order is concerned, according to the trial Court, the proposed amendment would affect the "whole structure of the suit". How, and in what manner, the structure of the suit would be affected by the proposed amendment, has neither been explained, recorded or elaborated upon in the impugned order. On the contrary, the prayer sought to be incorporated is in consonance with the prayers already made in the plaint. By amendment, the petitioners are seeking a decree restraining the respondent, whereas no decree has been sought in the plaint, in respect of the same property though similar prayers have been made. By no stretch of imagination can it be said that the amendment sought to be made in the plaint would change the nature of the suit. Regarding the ground of rejection of the prayer for temporary injunction, in respect of the same property, by order dated 7-7-1995 below application at Exh. 5, it is evident that by the said order, the prayer for temporary injunction has been rejected, whereas the prayer sought to be incorporated by the amendment is a final prayer that can be considered, at the time of the final decision of the suit. It is a settled position of law that interim orders will merge with the final orders in any legal proceedings. The Court may not grant an interim prayer but that does not preclude it from considering the final prayer. No valid or cogent reasons have been recorded by the trial Court, for rejecting the application of the petitioners. Further, it has not been stated in the impugned order, what prejudice, if any, would be caused to the respondent, if the amendment is allowed. Significantly, this aspect has not been touched upon by the learned Counsel for the respondent, either before the trial Court or this Court. 5.4. In Rajesh Kumar Aggarwal v. K. K. Modi (supra), the Supreme Court, in Paragraphs 19 and 20, has held as under :