RAJENDRI DEVI Vs. VINOD KUMAR BAJAJ

JUDGEMENT

(1.) By means of the present revision, the revisionist has challenged the Judgment and order dated 21.9.2012 passed by the Additional Civil Judge, Senior Division (Court No. 2), Ghaziabad whereby the application (Paper No. Ka-2/118) of the plaintiff respondent for amendment of the plaint has been allowed. The brief facts of the case giving rise to this revision are that a suit, being Original Suit No. 332 of 1996, Vinod Kumar Bajaj v. Smt. Rajendri Devi and others was filed by the plaintiff Vinod Kumar Bajaj against the defendant revisionists for permanent injunction with a prayer to restrain the defendant revisionists from interfering with his possession over the industrial plot No. A-43, Site-4 Sahibabad District Ghaziabad (hereinafter referred to as the property in question). It was specifically stated therein that the share of the plaintiff and that of the defendants was 1/2 each. In paragraphs 6 and 7 of the affidavit (examination in chief) dated 16.2.2005, the plaintiff has reiterated that the share of his father Amar Nath Bajaj and that of the revisionists in the property in question was 1/2 each. On 9.12.1999 the plaintiff had filed an application for amendment of the plaint alleging that his share in the property was 2/3 and that of the defendant was 1/3. The said amendment application was allowed by the trial Court vide order dated 20.1.2000. On 30.4.2008, the plaintiff respondent again filed an application for amendment of the plaint stating therein that by mistake, the plaintiff respondent could not ascertain his share in the property in question and now the plaintiff has come to know, after inspecting the revenue records, that he is the sole owner of the property in question and the defendant revisionists have no right, title or interest in the property in question. The said amendment application of the plaintiff was allowed by the trial Court. Hence, the present revision.

(2.) Learned counsel for the defendant revisionists submits that the trial Court has acted illegally with material irregularity in exercise of its jurisdiction while allowing the amendment application of the plaintiff. He further submits that the trial Court completely failed to take notice of the fact that the plaintiff himself had stated in the plaint filed in the year 1996 that his share in the property in question was to the tune of 1/2 and later on in the year 1999, by way of first amendment, he had alleged that his share was to the tune of 2/3 and, subsequently, in the year 2008 i.e. after about 12 years of filing of the suit, by way of the present amendment, he has ventured to say that he is exclusive owner of the property in question. He further submits that the amendments sought, being highly belated, was barred by limitation besides doctrine of estoppel and acquiescence, also change the nature and character of the suit itself from the stage of claim of co-sharer to the claim of exclusive owner. He further submits that the trial Court while passing the impugned order also failed to take notice of the fact that late Amar Nath Bajaj, the father of the plaintiff respondent, had filed a reference, being Land Acquisition Reference No. 279 of 1976, and after his death, the plaintiff opposite party had moved a substitution application for getting himself substituted. Subsequently, the revisionist Smt. Rajendri Devi had also moved an application on behalf of M/S Samarth Land and Industrial Corporation Delhi and got the aforesaid firm substituted in place of Amar Nath Bajaj. The substitution application was allowed and the reference was ultimately decided on 6.9.1979 but without substituting the plaintiff. He further submits that since as per the averments made in the plaint itself both the parties are co-sharer/co-owner of the property in dispute, no suit for injunction could have been filed against a co-owner without seeking a relief of partition.

(3.) In support of his contention, learned counsel for the defendant revisionist relied upon the law laid down in Ram Bali v. District judge,2003 AllCJ 111; Baujram @ Dukhan and others v. Munni and others,2008 AllCJ 981; Jai Jai Ram Manohar Lal v. National Building Material, 1969 AIR(SC) 1267; A.K. Gupta and sons Ltd. v. Damodar Valley Corporation, 1967 AIR(SC) 96; Samuel and others v. Gattu Mahesh and others, 2012 115 RevDec 533; Nrisingh Prasad Paul v. Steel Products Ltd., LAWS (CAL)-1953-0-15; Kurapati Venkata Mallayya and another v. Thondepu Ramswami, 1964 AIR(SC) 818; Devendra Mohan and others v. State of U.P. and others, 2004 ACJ 968 and T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board,2004 AllCJ 1065.