GULABRAI MOHANLAL THAKUR Vs. DOLATRAM MOHANLAL THAKUR

JUDGEMENT

(1.) The order of the 7th Joint Civil Judge (S.D.). Vadodara dated 3-8-1998 in Regular Civil Suit No. 227 of 1998 below Ex. 17 under which the application filed by the plaintiff-petitioner for the grant of permission to amend the plaint has been rejected, gives rise to this revision application in this Court under Sec. 115 of the C.P.C.

(2.) The plaintiff-petitioner filed Regular Civil Suit No. 227 of 1998 in the Court. below on 21-2-1998. The application under Order 6 Rule 17 C.P.C. for grant of permission to amend the plaint has been filed by the plaintiff-petitioner on 2-3-1998. The plaintiff-petitioner and the defendant-respondent are the real brothers. The suit has been filed by the plaintiff-petitioner for injunction that the defendant- respondent may be restrained from raising any construction in the disputed property so as not to close his windows and doors in his house at first floor. Along with the suit he filed an application for grant of temporary injunction and from the facts of this case it turns out that the learned trial Court has granted temporary injunction, which continues. By this application under Order 6 Rule 17 C.P.C., the plaintiff has prayed for inserting of two additional paragraphs in the plaint. Briefly stated the proposed amendment is that the plaintiff and the defendant live separately since many years and the shares of the defendant and plaintiff in the property are different and the plaintiff lives in the portion towards South and defendant in portion towards North. Both of them made construction in their respective portions as per the understanding between them. There is 60% space in the ground floor in possession of defendant. The plaintiff has got 40% space in his favour so that the defendant has got 10% more space on the ground floor. Therefore, as per the understanding between the plaintiff and the defendant the plaintiff has got 60%; space on the first floor and second floor and the defendant has got 40% space. As per the agreement it was agreed that the defendant would do construction work in space of 40% on first and second floor but the defendant in the present cas'e has started to possess space more than 40% and has started construction after leaving margin of only 4 feet away from the windows/doors of two rooms of the plaintiff on the first floor even though it was agreed to leave a margin of 8 feet. and is attempting to snatch away plaintiff's space of 4 feet. In the bedrock of these averments the plaintiff prays for declaration that the defendant has no right or authority to do construction work in the space more than as agreed between the plaintiff and the defendant and accordingly prayed for the permanent injunction only. The second proposed amendment is that the defendant is raising the construction without obtaining the permission from the Baroda Municipal Corporation, which is necessary. He prayed for the declaration that without taking prior permission the defendant lias no right or authority to do construction work and accordingly prayed for the injunction.

(3.) This proposed amendment has been objected by the defendant on the ground that it will change the nature of the suit and further it will cause injustice to the defendant. Elaborating this objection the defendant has stated that initially the plaintiff has come up with the case of easementary rights of light and air through the disputed doors and windows. By this proposed amendment he is claiming a right the basis of some understanding between him and the defendant leaving of the space in the disputed property before raising the construction. After hearing the learned Counsels for the parties under the order impugned in this C.R.A.. the learned trial Court rejected the application. The learned trial Court has rejected this application on the ground that this proposed amendment in the plaint will change the nature of the suit. The cause of action is different and reliefs will be changed from the cause of action mentioned in the original suit.