LAWS(BOM)-2001-7-172

HARISH NARAYAN CHOUGULE Vs. NAMDEO KRUSHNAJI BEDEKAR

Decided On July 11, 2001
Harish Narayan Chougule Appellant
V/S
Namdeo Krushnaji Bedekar Respondents

JUDGEMENT

(1.) This Writ Petition under Article 227 of the Constitution of India takes exception to the order passed by the Civil Judge, Junior Division, Kolhapur dated July 21, 1995 below, Exhibit 47 in Regular Civil Suit No. 422 of 1992.

(2.) The Petitioners are the original defendants in the suit filed by the Respondent before the Court of Civil Judge, Junior Division, Kolhapur being Regular Civil Suit No. 422 of 1992. The Respondent, who claims to be the tenant and in possession of the suit premises, filed suit for perpetual injunction against the Petitioners. The assertion in the plaint would indicate that the Respondent claimed to be in possession of the suit premises; and it is stated that the petitioner No. 2 came to the suit premises on April 20, 1992 as well as on April 21, 1992 and sought to interfere with the Respondents possession and administered threat. It is not in dispute that the Respondent failed to obtain any interim relief in the said suit. Having failed to obtain any interim relief, the Respondent thereafter thought it appropriate of amending the plaint by the subject application Exhibit 47. By this application, the Respondent intends to extensively amend the plaint. This application has been allowed by the trial Court by the impugned order which is the subject matter of challenge in this writ petition.

(3.) After going through the relevant pleadings and after considering the arguments advanced on behalf of both the sides, I find that the case made out for the proposed amendment on behalf of the Respondent is entirely different than the one mentioned in the plaint as filed. As mentioned above, the plaint proceeds on the basis that the Respondent was in possession of the suit premises and asserts that the Petitioners sought to interfere with his possession. On the other hand, in the present application the Respondent admits that after he vacated the premises which was occupied by him, thereafter the suit house was demolished and the Petitioners-owners have constructed a new building on the suit plot. The pleadings would indicate that the stand taken on behalf of the Petitioners-owners is that the Respondent had surrendered his tenancy and has no concern with the newly built building. Thus, on examining the rival pleadings, it would appear that, the Respondent by the proposed amendment not only wanted to change the description of the suit property but also the cause of action. No doubt it is well settled that the litigant can be permitted to take alternative plea, however, by the proposed amendment the Respondent has come out with a specific case which is entirely different than the one made out in the original plaint. In the circumstances, it would not be appropriate to allow the proposed amendment, for it would not only change the entire case made out in the original plaint but also the description of the suit property and the cause of action. In the circumstances, the order passed by the Courts below, allowing amendment, taking the view that there would not be any change in the nature of the suit, is wholly impermissible.